Title IX Final Rule: Post-Secondary Institutions and K-12 Schools

On May 6, 2020, the U.S. Department of Education released its Final Rule under Title IX which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. The Final Rule goes into effect on August 14, 2020.

Wait, I am a K-12 School.  Does the New Title IX Final Rule Apply to Us?

Yes. The new Title IX Final Rule applies to post-secondary institutions and K-12 school districts in all aspects except K-12 school districts are not required to hold or offer a live hearing before a final determination is made.

What Are the Primary Changes?

Major items to note in the new Title IX Final Rule, for both K-12 school districts and post-secondary institutions (except where specified below), are:

• Revise Board Policies to reflect the definition of sexual harassment from the Regulations: Any quid pro quo harassment by a school employee; any unwelcome conduct that a reasonable person would find to be so severe, pervasive and objectively offensive that it denies a person equal educational access; any instance of sexual assault, dating violence, domestic violence or stalking as defined in the Violence Against Women Act (VAWA).
• K-12 school districts must respond to allegations of sexual harassment when any school employee has actual notice of allegations of sexual harassment (not just actual notice by Administrators or Title IX Coordinators). Postsecondary institutions may choose whether to have mandatory reporting for all employees or to designate some employees to be confidential resources for college students to discuss sexual harassment without automatically triggering a report to the Title IX office.
• Develop a written grievance procedure for resolving formal complaints of sexual harassment (which must include 10 specific items as outlined in the Final Rule). This may be developed and incorporated into a Board Policy on Title IX, or as a separate Guideline/Procedure.
• Must dismiss a complaint that:
  • Does not describe conduct that meets the definition of sexual harassment;
  • Alleges sexual harassment that did not occur in the school’s educational program or activity; or,
  • Did not occur in the United States.
• Parties must have the opportunity to select an advisor of the party’s choice to represent them during the Title IX investigation/grievance/appeal process. The advisor may be an attorney. Where the party does not have an advisor, the advisor must be provided by the school district/post-secondary institution.
• Must send written notice to both parties (complainants and respondents) of the allegations upon receipt of a formal complaint. The written notice must contain: 
  • The actual allegations and facts that would constitute sexual harassment;
  • The presumption of innocence of the Respondent;
  • A statement that the parties are entitled to an advisor of their choice;
  • A statement that the parties can request to inspect and review evidence;
  • Information regarding the Code of Conduct and false statements;
  • The option for informal resolution (as further explained below); and
  • The notice must contain a copy of the Grievance Procedures.
• Must send prior written notice of any investigative interviews, meetings, or hearings.
• Must send the parties, and their advisors, evidence directly related to the allegations with at least 10 days for the parties to inspect, review, and respond to the evidence.
• A written Title IX investigation report that fairly summarizes relevant evidence must be sent to the parties, and their advisors, with at least 10 days for the parties to respond in writing before the investigation report is finalized and sent to the parties.
• The decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) must issue a written determination to the parties regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, the rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. 
• An appeal must be offered to both parties; it is no longer optional. Appeals may be based on:
  • Procedural irregularity that affected the outcome of the matter;
  • Newly discovered evidence that could affect the outcome of the matter; and/or
  • That the Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.

The appeal process is based on written submissions and a written decision (i.e. no live hearing required for the appeal). The appeal must be considered by a person or body (e.g. a Board of Education) who was not involved in the investigation or final determination. 

• Informal resolution options, such as mediation or restorative justice, may be offered and facilitated so long as both parties give voluntary, informed, written consent to attempt informal resolution. At any time before agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. Informal resolution is not available to resolve student Title IX allegations against an employee.
• Detailed training on the new Final Rule and a variety of other topics is required and training materials must be posted on the website.  

Live Hearings: To Hold or Not to Hold? Post-Secondary vs. K-12

The Final Rule adds a “live hearing with cross-examination” requirement for post-secondary institutions and options for K-12 schools (and any other school that is not a post-secondary institution). Numerous requirements have been outlined for the live hearing, including:

• The decision-maker(s) must permit each party’s advisor to ask the other party, and any witnesses, relevant questions, including questions that challenge credibility, and should exclude questions that are not relevant.  
• Cross-examination must be conducted directly, orally, and in real time by the party’s advisor and can be done with all parties physically present in the same geographic location or, at the school’s discretion, virtually.  
• A party shall never be permitted to cross-examine another party personally.  
• At the request of either party, the school must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.
• A party cannot be compelled to appear, and the decision-maker(s) cannot draw a negative inference regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer questions.
• The live hearing must be recorded.

If a K-12 school does not offer a live hearing, before reaching a determination regarding responsibility, the decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) must allow each party to submit written, relevant questions that a party wants to be asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party before the written determination being made.

The Final Rule is not published yet in the Federal Register but is available in draft form in the news room on the Office for Civil Rights Website. Before the effective date, schools may want to consider reviewing and updating Title IX policies and procedures and conducting training. If you have any questions or would like to request any resources or training, please contact Kara T. Rozin, Maria F. Dwyer, or your Clark Hill attorney.