The U.S. Department of Education recently released its anticipated proposed regulations regarding sexual harassment under Title IX of the Education Amendments of 1972. If adopted, these regulations could have a significant impact on the manner in which educational agencies and institutions investigate and address claims of sexual harassment or discrimination.  Although these regulations may not be binding on independent schools, these evolving standards will foreseeably impact best practices and establish more general expectations.

Key components of the proposed regulations include: a definition of sexual harassment; a duty for recipients only to investigate complaints of conduct that occurred within their program or activity; the adoption of an “actual knowledge” and “deliberate indifference” standard of liability; and detailed grievance procedures.

Currently there are no binding federal regulations related to sexual harassment under Title IX, only administrative guidance issued by the Department’s Office for Civil Rights, which enforces Title IX. The proposed regulations are open to public comment for 60 days, and may result in further revisions before they become final.

Title IX specifically applies to state and local educational agencies and institutions that receive federal financial assistance (recipient(s)) and specifically prohibits discrimination on the basis of sex, including sexual harassment, which has the effect of denying students access to educational programs or activities. Generally, independent schools do not receive federal financial assistance, and are thus not covered by Title IX.  However, if an independent school, or any part (or program) thereof, receives any federal funds for any purpose, all of the operations of the independent school will be deemed covered by Title IX.

Please click here for our summary and analysis of the proposed regulations.