Is your educational institution ready for the new Title IX requirements? | Cranfill Sumner LLP
Like a shock wave, the outbreak of COVID-19 has had a monumental, unprecedented, and life-altering impact on educational institutions across the United States. Accompanied by rapidly changing guidance, the topic that has flooded secondary and post-secondary institutions over the past few months has been the implications of providing educational opportunities in a COVID-19 environment. Amid the impact of COVID-19, there has been the significant overhaul of a federal regulation prohibiting sex discrimination looming in the background – Title IX. The new Title IX regulations were released at the height of COVID-19 on May 19, 2020 and are scheduled to take effect on August 14, 2020. These new Title IX regulations impose a distinctly different framework from the past two decades for how the Educational institutions must deal with allegations of sex discrimination under Title IX. In case your institution has not yet paid attention to the new requirements, here is an overview of some of the important elements of the new Title IX regulations.
Applies to all educational institutions receiving federal funds
- new definitions of actual knowledge, complainant, consent, formal complaint, respondent, sexual harassment, supports, elementary and secondary school, post-secondary institution, and intentionally indifferent
- “Actual knowledge” of sexual harassment required vs. “knew or should have known”
- Response obligations for allegations of sexual harassment limited to persons and areas over which the educational institution has substantial control as well as buildings owned or controlled by student groups officially recognized by the educational institution
- Must offer “support measures” in response to a “report” and must conduct formal investigations in response to a “formal complaint”
- Must perform an individual safety and risk analysis for the respondent, which determines an immediate threat before removing the respondent from the education program
- The defendant has the right to challenge the dismissal decision immediately after the dismissal
- Allowed to choose a standard of “preponderance of evidence” or the standard of “clear and convincing evidence”
- The grievance process must allow both parties to have an advisor of their choice to accompany them to any meeting or proceeding.
- The educational institution must send both parties the evidence obtained during an investigation and allow the parties to submit a written response before the investigation is completed.
Applies only to post-secondary institutions receiving federal funding
- If the student discloses an allegation of sexual harassment to the Title IX Coordinator or any official authorized to impose corrective measures if necessary, the educational institution is deemed to have actual knowledge
- Grievance hearings should be live and allow counsel for each party to ask “cross-examination” questions of the opposing party and witnesses
Applies only to secondary schools receiving federal funds
- If the student discloses an allegation of sexual harassment to any employee of a primary and secondary school, the educational institution has actual knowledge
- Although authorized to do so, secondary institutions are not required to hold hearings for the grievance process.
These general areas highlight some of the important changes imposed by the new Title IX regulations. Although educational institutions have been burdened with the implications of COVID-19 on the upcoming school year, they are expected to implement all of these stringent and comprehensive regulations by August 14, 2020. Although efforts are being made To delay the August 14, 2020 implementation date, it is in the interest of educational institutions to make efforts to implement these changes now.