On May 6th, the U.S. Department of Education published its long-awaited final regulations regarding sexual harassment under Title IX of the Education Amendments of 1972. The final regulations take effect on August 14, 2020 and, as expected, they will have a significant impact on the manner in which educational institutions investigate and address claims of sex discrimination and harassment.

Title IX applies to education programs or activities that receive federal financial assistance (“recipients”) and specifically prohibits discrimination on the basis of sex, including sexual harassment. Until now, there have been no binding federal regulations related to sexual harassment under Title IX, only administrative guidance issued by the DOE’s Office for Civil Rights.

The final regulations dramatically expand the requirements for Title IX grievance procedures, which will require significant policy and procedure revisions, training, and time to implement. While many schools are focused on planning for the reopening of schools in the fall, they should be sure to keep the new regulations on their radar and take steps to ensure that they are in compliance come August 14, 2020 by updating policies and grievance procedures and providing any necessary training for school staff.

Below are a few of the new changes:

• Narrowing the definition of sexual assault under Title IX
• Limiting the obligation to investigate complaints only to conduct that occurred in the school’s program or activity (and not to unrelated off campus conduct)
• Mandatory response obligations of schools (i.e., providing supportive measures)
• A change to the standard for school liability
• More detailed grievance procedures that will alter the way schools process and respond to complaints
• Hearings are optional, written questions required (for K-12 Schools)
• Schools may choose what standard of evidence to use (e.g. preponderance of evidence v. clear and convincing)
• Schools must offer both parties an appeal from a determination regarding responsibility

Additional links that may prove helpful in becoming more familiar with the new regulations:

• Title IX Regulations Addressing Sexual Harassment (Unofficial Copy)
• Title IX: Fact Sheet: Final Title IX Regulations 
• Title IX: U.S. Department of Education Title IX Final Rule Overview
• Title IX: Summary of Major Provisions of the Department of Education’s Title IX Final Rule

For questions about these final regulations, please contact any member of our School Law Group.