Proposed Title IX Regulations Raise Many Questions, Particularly for K-12 Schools

On Friday, the U.S. Department of Education issued proposed regulations that its Office for Civil Rights (OCR) would use to investigate complaints against schools under Title IX of the Education Amendments of 1972. Title IX prohibits sex discrimination—including sexual misconduct such as harassment, assault, and violence—in schools. Critics claim the proposed rules will result in fewer protections for victims, while proponents applaud the changes for protecting due process rights of accused students and decreasing burdens on educational institutions. Although the proposed regulations would make it more difficult to legally challenge a school’s response to sexual misconduct complaints, the detailed regulations actually would impose a multitude of the new policy and procedural burdens on schools and could increase confusion, particularly for K-12 schools.

A summary of some of the key changes for educational entities follows, with a particular focus on the impact on K-12 schools. Interested parties can submit comments for or against the proposed regulations directly to the Department of Education through its Federal eRulemaking Portal or by emailing comments to the address in the proposed rules. Additionally, Franczek P.C. will be working with stakeholders on comments addressing the impact of the proposed rules on the firm’s clients and friends. If you have thoughts or comments about the proposed rules or would like to discuss the rules further, please contact Amy Dickerson, Jackie Wernz, or any other Franczek attorney. The comment period will last 60 days from the date the proposed rules are formally published, which has not yet occurred.

As noted above, although the regulations are intended to lower the burden on schools in responding to complaints of sexual misconduct, a school’s response to Title IX complaints will be judged by OCR based on its compliance with grievance procedures that comply with the detailed proposed regulations. Schools thus must be ready to quickly and significantly revise their policies, procedures, and practices, and provide training to relevant employees once the new regulations are in place. It is therefore important at this stage for stakeholders to consider the potential impact of the proposed regulations on their schools and communicate concerns to the Department during the comment period for the proposed rule. Because the majority of proposed regulations often are implemented even after the comment period, however, schools should also begin to think now how they will come into compliance with new rules once issued.

What follows is a detailed summary of some of the most significant changes in the proposed rules:

Definition of Sexual Harassment

• The proposed rules include a definition of “sexual harassment,” which is not currently defined in the Title IX statute or rules. The proposed rules define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity. Critics have pointed out that the definition is narrower than the one currently used by OCR and may relieve schools of the responsibility to respond to certain complaints of sexually offensive conduct.

New Standard for Knowledge of Misconduct

• The proposed regulations would require schools to respond only to complaints of sexual misconduct of which they have “actual knowledge.” Under the current regulatory regime, schools must investigate and respond to sexual misconduct about which they “know or should have known.”
• The rules would limit the types of individuals whose knowledge is sufficient to trigger Title IX processes. Under current OCR guidance, if any representative of the school learns of sexual misconduct, the school is assumed to have knowledge that triggers its responsibilities under Title IX. Under the proposed regulations, only the knowledge of a school’s Title IX coordinator, an official “with authority to institute corrective measures” for the school, or, in the case of a K-12 school, a classroom teacher, will be attributed to the school. For K-12 schools, there may still be confusion about who is an “official with authority,” although the regulations say it is not enough that an employee has the responsibility to report sexual harassment up the chain for the employee to be an “official with authority.”
• The rules would jettison a current OCR practice of holding schools responsible for knowledge of sexual misconduct by a school employee even if the only person who knows about the misconduct is the alleged perpetrator.

Formal vs. Informal Complaints

• Under the proposed rules, schools would only be responsible to investigate “formal complaints” even if they have actual knowledge of sexual misconduct. A complaint is a formal complaint if it is written and signed by either the complaining student or the Title IX coordinator. This would be a change to current OCR practice, which allows a third party to file a complaint on behalf of an alleged victim.
• Schools’ Title IX coordinators would be required to file formal complaints in some circumstances, even if the complainant did not file a formal complaint. In both higher education and the K-12 context, if a school has actual knowledge of multiple complaints against the same respondent, the Title IX coordinator would be required to open a formal complaint. Higher education institutions would no longer be required to investigate other complaints of harassment and assault where the alleged victim does not wish to pursue a formal complaint. K-12 schools, however, would need to continue following OCR’s current direction to formally investigate a complaint of conduct that could create a hostile environment for students other than the complaining student even if the complainant does not wish to make a formal complaint. The Title IX coordinator would appear to be responsible for filing a formal complaint in such circumstances.
• Schools must provide “supportive measures” to complainants who report sexual misconduct even if the complainant does not wish to file a formal complaint. “Supportive measures” is defined as “non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed.” The proposed regulations contain numerous examples of supportive measures. On this issue:
• In the case of higher education, if a student chooses not to file a formal complaint and the school provides “supportive measures,” its response will not be found to violate the law as long as it meets certain notice requirements in the proposed rules. This “safe harbor” does not apply to K-12 schools, however, which, as noted previously, must still initiate a formal complaint in some cases even if a student expresses the desire not to proceed with a formal complaint, as is required of all schools under OCR’s current guidance.
• For K-12 schools, too, a proper response under the proposed rules can include “supportive measures” such as counseling, no-contact orders, and course or other academic adjustments. Under current rules and guidance as well as the proposed regulations, OCR requires that burdens related to such measures cannot automatically fall solely on either the responding or reporting student. Measures must be implemented based on individual circumstances.

Other Issues

• The impact of the geographic location of conduct on a school’s responsibility is unclear. The proposed regulations state that a recipient is only responsible for addressing conduct that occurs within its “education program or activity,” which some commentators suggest means schools are only responsible for misconduct that occurs on campus or at school-related activities. The comments to the proposed regulations also state, however, that “[w]hether conduct occurs within a recipient’s education program or activity . . . does not necessarily depend on the geographic location of an incident (e.g., on a recipient’s campus versus off of a recipient’s campus),” and the proposed regulatory language mirrors language already in the Title IX statute. It is unclear if the proposed language in the regulations would change OCR’s approach to investigating effects in the school environment after an incident of sexual misconduct that occurs off-campus.
• A school would need to be “deliberately indifferent” to a report of sexual misconduct to violate Title IX under the proposed rules. This means that the school’s response would need to be “clearly unreasonable in light of the known circumstances,” and is a lower bar than OCR’s current requirement that the response is “reasonable.” Notably, if a school has and follows “safe harbor” and grievance procedures that comply with the proposed regulations, it will not be found to be deliberately indifferent. OCR will not “second guess” disciplinary decisions made by schools.
• The proposed rules would codify schools’ right to choose the “burden of proof” used during the adjudication of sexual misconduct allegations. Schools have been allowed to choose the standard of proof since September 2017, however, when the Department rescinded Obama-era guidance on sexual misconduct. Commentators have noted that not many schools changed the standard of proof they used despite being granted permission to do so.
• The new rules include a myriad of “due process protections” for accused students during the adjudication of a sexual misconduct complaint. Examples include a presumption of innocence throughout the grievance process, written notice of the allegations, the opportunity to review all evidence collected, and, at least in the higher education context, the right to cross-examine their accuser through an advisor of choice in a live hearing. Colleges and universities would be required to offer a live hearing, but K-12 schools have the option to choose whether or not to do so. Even if no hearing is held, however, each party must be given the opportunity to ask other parties relevant questions through the decision-maker