Title IX has been on the frontlines against sex-based discrimination in education for a long while now. Previously, Title IX was known to be implemented by educational institutions in the support of female-dedicated athletics programs (equivalent to male programs). In 1992, Title IX concluded that it will safeguard sexual harassment. It is one of the most important laws ever to pass in the U.S. for women and girls that prohibits discrimination against them on the basis of their race, color or origin. However recent updates in the law have highlighted significant changes. To answer the question: What did the final rule under Title IX formally add to the Title IX definition of sexual harassment?, it’s important to understand the goal of Title IX final rule.
According to the Title IX Final Rule, its goal is to strengthen the protection of students while being fair throughout the process. Now, it’s compulsory to understand the changes as it will impact the educational institutions and reflect their standards.
One controversial 2020 change, released on April 19, that required live hearings and cross-examination was revised. While such changes are welcomed, it is important to review the new procedures and training as per August 1.
Guiding Principles for Title IX Final Rule
The key guiding principle of Title IX Final Rule is the acknowledging of sexual harrassment, such as sexual assault, as a form of sex discrimination.
All government funded educational institutes are legally required to address this as any other form of discrimination. For instance, a student experiencing any kind of unwelcome conduct that leads to a hostile or unsafe environment, should not be ignored by the school authorities. They must take a serious action and give an appropriate response on an immediate basis.
The new guiding principles also ensure that schools update their written procedures for the incidents of sexual harassment. It will help students, parents and staff to take the necessary steps in case of a complaint to ensure a fair process.
Supporting Complainants
According to Title IX, schools must have supportive measures in place for the complainants. It should be followed even if a complainant does not want to file a formal complaint. It can be class schedules, counseling sessions, or even a no-contact order to ensure the complainant is safe and sound.
Another key point is the respect for the complainant’s autonomy in the process. A student facing harassment can request to switch classes so that they can avoid the respondent. Any such request should be honored by the school to ensure that the complainant is seen and heard. They must be forced into an unwanted situation or action.
The grievance process needs to be fair and impartial. It must treat the complainant and respondent with utter respect which means the investigation process should be unbiased from the very beginning. Both parties should have equal chance to present their case whilst maintaining a balanced approach. It is to ensure that justice is fairly served.
Ensuring Non-Discrimination, Free Speech, and Due Process
Core American Values: Equality and Fairness
Equality and fairness are the two core American values to ensure all students are treated equally with respect and dignity. A school must take action in a situation where a student is discriminated against due to their sex. The commitment is an epitome to create a safe educational environment for every student so that they have equal opportunities to learn and grow.
Procedural Rights for Complainants and Respondents
The Title IX Guidelines also puts emphasis on the procedural rights for complainants and respondents. For example, before a verdict begins, a student accused of sexual harassment has the right to know the accusations made against them. They can address those accusations, hence giving both parties a fair chance during the investigation period to display their evidence, information and can participate in the process.
Protection of First Amendment Rights
Title IX update also protects student’s First Amendment rights. Offensive comments might not be considered as sexual harassment but if they provoke a hostile or unsafe environment, school must address it carefully. While it is important to balance the need to protect students, the freedom of speech must be safeguarded as well.
Definition and Scope of Sexual Harassment
Previous Definition of Sexual Harassment
Sexual harassment was defined as follows in the Office for Civil Rights (OCR) 2001 guidelines:
- Requests for sexual favors, unwanted sexual advances, and other sexually suggestive words, gestures, or actions.
- The degree, scope, or consistency of this behavior must have been such that it limited or interfered with a student’s capacity to engage in or gain from an educational activity or program.
Changed Criteria of Sexual Harassment
The new regulations change the standard for what constitutes harassment to be
(1) unwelcome
(2) sex-based
(3) subjectively and objectively offensive
(4) so severe or pervasive
(5) that it results in a limitation or denial of a person’s ability to participate in or benefit from the recipient’s education program or activity.
The 2020 Title IX regulations required harassment to be severe, pervasive, and objectively offensive. The revised regulations broaden this need to cover behavior that restricts participation. The 2020 regulations previously required that the conduct result in a rejection of the person’s capacity to participate or benefit from the program or activity.
Types of Sexual Harassment
Title IX identifies different forms of sexual harassment that helps define the scope and seriousness of the behavior.
Quid Pro Quo Harassment
When a person is in a position of power or authority (like a teacher or a coach), demanding sexual favors in exchange of a cornered result such as better grade or a spot in the team, is considered as Quid Pro Quo Harassment. If the teacher implies that a student will fail his grade unless they do as they are told, is a clear violation of Title IX guidelines. In such a case a prompt response is required from the school.
Severe, Pervasive, and Objectively Offensive Conduct
In case a situation is severe, pervasive and objectively offensive denying a students its right and access to the educational program or activities in school is a form of sexual harassment. Such incidents are usually isolated or minor that they are easily overlooked. For example an unwanted comment about a student or even a joke about a student’s sex can cross the line.
Sexual Assault, Dating Violence, Domestic Violence, Stalking
A situation is considered as sexual harassment that explicitly includes dating violence, sexual assault, domestic violence and stalking. A student reporting being stalked by a peer or someone from staff needs to be reported immediately to ensure right steps are taken for their safety.
Actual Knowledge
Incidents can occur during school activities within the U.S. such as field trips, athletic events or dances etc. school is expected to respond promptly, and to offer supportive measures for the complainant and respondent.
Occurrence within Educational Program or Activity
It can include locations, instances or events, on campus and off campus where the educational institute had the control over complainant and respondent. It also includes any structure owned or managed by a recognized student group, such as a fraternity or sorority house.
Jurisdiction within the United States
Title IX Final Rule is applicable to the schools in the U.S. The person must be in the United States. The rule does not cover a student participating in exchange study programs abroad. The Final Rule does not preclude a school from addressing behavior that is not covered by Title IX. it must fall under the purview of the institution’s own regulations, such as providing supportive services or penalizing an alleged offender.
School’s Obligations and Response
Mandatory Response Obligations
Every formal complaint must include claims that schools will look into and notify both parties in writing of the allegations. During the investigation process, schools should bear the responsibility of obtaining evidence and meeting the burden of proof, rather than the parties involved. The school must deliver an investigative report to the parties (as well as their chosen advisers, who may or may not be attorneys) after the inquiry is complete, and give them at least ten days to comment.
Role of Title IX Coordinators
Title IX Coordinators are responsible to oversee a school’s response to sexual harassment and to ensure policies are implemented. From coordinating the investigation to the resolution of complaints, staff and students are provided necessary training. The purpose is to make the school’s procedure more accessible and effective. It is also important, and falls under the responsibility of coordinators to ensure both parties are aware of their rights during the investigation.
Supportive Measures Regardless of Formal Complaints
Supportive measures are the services offered to the complainant regardless of the fact whether they want to file a complaint or not. It helps them to continue their education in a safe environment. It can include counseling sessions, changing classes and even increased security on the campus. Schools can arrange online classes to make the complainant comfortable. Such measures protect the complainant’s wellbeing.
Formal Grievance Process
Investigation and Adjudication Requirements
The investigation process conducted by the school must be thorough and impartial to the complainant and respondent. Because the process should be fair, evidence is gathered, witnesses are interviewed, and relevant documentation is reviewed.
Written Notice of Allegations
After the formal complaint is filed, the school has to give a written notice to both parties. The notice must include the following details:
- Alleged conduct
- Identities of parties involved
- Specific policies (violated)
Throughout the grievance process, both parties should be informed about their rights to have an advisor especially in interviews and hearings.
Equal Opportunity to Select Advisors and Review Evidence
An advisor must be selected by the complainant and the respondent. They can either be a friend, family member, attorney or someone trusted. An equal right to review all evidence is provided during the investigation to ensure both parties can present their case.
Privacy Protections and Consent Requirements
Title IX is focused to keep the privacy of both parties intact. Therefore, the school must keep their identities and the witnesses confidential. Unless it becomes necessary or is required by the law to carry the investigation. All the shared information is secured and so, consent is required to present any medical or counseling records as evidence.
Standards of Evidence
School must have set a standard for evidence provided that must determine the sexual harassment happen or not.
- Preponderance of Evidence: According to this standard, evidence shows the likelihood of the occurrence of sexual harassment. The standard of the proof is rather lower and used in civil cases.
- Clear and Convincing Evidence: It is a higher standard that requires evidence to have the same standard as Title IX cases.
Live Hearings and Cross-Examination
In higher education institutions, live hearings are an essential component of the grievance procedure. Both parties get the chance to make their case at these hearings, and their advisors are free to cross-examine the other party and any witnesses. Cross-examination is meant to make sure that all of the evidence is looked at in detail and that the truth is revealed.
K-12 Schools
In K–12 schools, in-person hearings are not necessary. Rather, the evidence acquired throughout the investigation can be used to determine if harassment happened.
Fair Treatment and Due Process Protections
Presumption of Innocence
According to the grievance procedures, a respondent is innocent until proven otherwise. During the investigation school must remain fair towards the accused without assuming guilt. School cannot impose any disciplinary action solely on the basis of the allegation. Therefore, sexual harassment claims must be determined first.
Decision-Maker Requirements
The decision-makers are the panel or can be an individual, who are responsible to make a final statement about the sexual harassment. They must remain impartial and unbiased. The decision-maker should be someone who has not conducted the investigation. A Title IX Coordinator cannot be a decision-maker either. It is pivotal so that any conflicts of interest can be avoided.
Rape Shield Protections
These measures are designed to protect the complainants’ privacy during the grievance process. It prevents the accused or their advisor from questioning the complainant about their past sexual behavior, if unrelated to the present case. This measure is taken to avoid discrediting the sexual harassment claims with unrelated sexual history.
Written Determinations and Appeals
Once the hearings are completed, a written determination is provided by the decision-maker. It includes all of the finding facts, conclusions, and imposed sanctions. Both parties receive the written determination and have the right to appeal the decision. It can be done in case of procedural errors, emerging of new evidence, or conflict of interest.
Retaliation Protections
Retaliation against any party engaged in the complaint process—whether the complainant, respondent, or witness—is expressly forbidden by Title IX. retaliation can be a negative action taken because someone filed a complaint or assisted with an inquiry, such as harassment, intimidation, or discrimination.
Additional Provisions on Sex Discrimination
Remedial Actions for Sex Discrimination
A school must address a prompt response towards sexual harassment under Title IX. They are responsible to provide support services, introduce policy and implement training programs for both staff and students. So if a female students was unfairly excluded from a program based on her gender, more opportunities must be provided by the school.
Interplay with Title VII and FERPA
Title IX frequently comes into contact with other significant federal laws. The Family Educational Rights and Privacy Act (FERPA) safeguards the privacy of student education data, and Title VII of the Civil Rights Act of 1964 forbids sex discrimination in employment.
Role of Parents and Guardians
During the grievance procedure, parents and guardians are extremely important, particularly when minors are involved. On behalf of their kid, they have the right to be notified about allegations of sex discrimination or harassment and to take part in the resolution process.
Religious Exemption Clarifications
A school may request an exception from Title IX’s requirements for gender equality in programs that are in contradiction with a religious school’s teachings on gender roles. However, in order to be granted this exemption, institutions must formally notify the U.S. Department of Education and provide an explanation of how complying with Title IX would go against their religious convictions.
Practical Implementation for Educational Institutions
Policy Revision and Compliance
A school may ensure that everyone is aware of how to report incidents of harassment or discrimination by updating its website and handbook to reflect the most recent Title IX regulations. This entails updating the policies in place to reflect any new developments, such as revisions to the definitions of sexual harassment.
Training and Education for Title IX Personnel
Thorough and continuous training is crucial for Title IX Coordinators, investigators, and decision-makers. The most recent rules, the school’s policies, and the proper methods for resolving Title IX allegations should all be covered in this session.
Documentation and Record Keeping
Keeping thorough and accurate records is essential to complying with Title IX. Schools are required to maintain thorough records of all reports, inquiries, and decisions made regarding Title IX complaints. This paperwork facilitates accountability and enables a comprehensive examination in the event that any step of the procedure is later called into doubt.
Public Availability of Training Materials
Public access to Title IX training materials is mandated for educational institutions. The institution’s dedication to stopping and dealing with sex discrimination and harassment is strengthened by this openness. It also enables staff, parents, and kids to comprehend the policies and guidelines that Title IX workers are taught to maintain.
Conclusion
The way that educational institutions must handle accusations of sex discrimination and harassment has undergone major modifications as a result of recent changes to Title IX requirements. It is critical that schools concentrate on updating rules, giving Title IX staff comprehensive training, and upholding strict documentation and openness while they attempt to execute these reforms.
It might be difficult to navigate the complexity of Title IX compliance, but professional assistance can really help. Our area of expertise at Kaltman Law is assisting educational institutions in comprehending and successfully implementing these requirements. Our staff is here to help you with any needs you may have, including policy formulation, training, and managing particular instances.
Frequently Asked Questions
What did the final rule under Title IX formally add to the Title IX definition of sexual harassment?
Acknowledgment of sexual harassment, including sexual assault, as a form of sex discrimination was formally added to the Title IX definition of sexual harassment under the final rule.
