The Department of Education (“ED” or the “Department”) issued its long-awaited Notice of Proposed Rulemaking to amend regulations implementing Title IX of the Education Amendments of 1972 (“Title IX”) on November 29, 2018. As the Department has acknowledged, the proposed rules would adopt standards that significantly depart from those set forth in prior ED regulations and guidance under Title IX. Although much of the debate regarding the proposed rules has focused on institutions of higher education’s treatment of sexual harassment, the proposed rules also would significantly impact elementary and secondary schools. Husch Blackwell’s education team offers the following overview of the proposed rules, with a focus on the Department’s regulation of K-12 institutions.

1. Sexual Harassment Defined

In the era of #MeToo, defining conduct that constitutes sexual harassment under Title IX has been the subject of intense debate within the Department, the courts, and the public at large. Proposed section 106.44(a) would require a school with “actual knowledge of sexual harassment” in its “education program or activity” to “respond in a manner that is not deliberately indifferent.” The Department’s definition of “sexual harassment” means a school:

(1) “conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;”

(2) “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;” or

(3) “sexual assault as defined in 34 CFR 668.46(a), implementing the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act).”

Departing from previous administrative guidance, the proposed regulation makes constructive notice insufficient to trigger an institution’s Title IX obligations. For purposes of administrative enforcement, the proposed regulation adopts the Supreme Court’s deliberate indifference standard from Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).  This standard, significantly higher than ED’s enforcement standard, has been used by courts to determine institutional liability for the payment of monetary damages to the victim of sexual harassment. Tracking the judicial standard, the proposed rules define “deliberate indifference” as a response that is “clearly unreasonable in light of the known circumstances.” “Actual knowledge” is defined as “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient.”

The federal courts have held that determining whether someone is an official with authority to take corrective action is a fact-specific inquiry. Although the U.S. Supreme Court has not specifically ruled on the issue, the proposed rules state that “a teacher in the elementary and secondary context” is such an official “with regard to student-on-student harassment.” The Department reasoned that “school administrators and teachers are more likely to act in loco parentis, and exercise a considerable degree of control and supervision over their students” in elementary and secondary school settings. Thus, the Department believes that teachers at elementary and secondary schools should be considered to have the requisite authority to impart actual knowledge to the recipient regarding student-on-student conduct that could constitute sexual harassment and to trigger a recipient’s obligations under Title IX.

In addition, notice to a recipient’s Title IX Coordinator will always confer actual knowledge on the recipient. However, the Department states that “the mere ability or obligation to report sexual harassment does not necessarily qualify an employee, even if that employee is an official, as one who has authority to institute corrective measures on behalf of the recipient.” Similarly, a school does not have actual notice if the “official” with knowledge of the harassment is the perpetrator.

2. Grievance Procedures for Addressing Complaints of Sexual Harassment

The Department has expressed its desire to ensure schools have the “flexibility to employ age-appropriate methods, exercise common sense and good judgment, and take into account the needs of the parties involved” in determining how to respond to sexual harassment. Along those same lines, the Department “believes that teachers and local school leaders with unique knowledge of the school culture and student body are best positioned to make disciplinary decisions; thus, unless the recipient’s response to sexual harassment is clearly unreasonable in light of known circumstances, the Department will not second guess such decisions.”

Despite these admonitions, the proposed rules outline a revised, but nevertheless detailed set of grievance procedures for notifying, investigating, and issuing a decision regarding allegations of sexual harassment. Under the proposed rules, an institution’s grievance procedures must include the following elements:

• “Treat complainants and respondents equitably” by designing remedies that (1) “restore or preserve access to” a complainant’s education program or activity “where a finding of responsibility against the respondent has been made,” and (2) afford “due process protections for the respondent before any disciplinary sanctions are imposed.”
• Provide for an “investigation” which objectively evaluates “all relevant evidence – including both inculpatory and exculpatory evidence,” and must provide that “credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.” This appears, for example, to preclude any reasoning that a complainant’s account is more likely true than not because there are very few “false” sexual assault reports.
• Ensure that individuals participating in the grievance process are selected and trained to serve impartially with no “conflict of interest,” “bias for or against complainants or respondents generally or an individual complainant or respondent,” or reliance on “sex stereotypes.”
• Presume that the respondent is not responsible for the alleged conduct “until a determination regarding responsibility is made at the conclusion of the grievance process.”
• Complete with grievance process in a “reasonably prompt timeframe,” which can be extended based on absences of witnesses, “concurrent law enforcement activity,” or the need to accommodate individuals with disabilities. This appears to give a school greater flexibility to delay an investigation in deference to a law enforcement investigation than did the prior sub-regulatory guidance.
• Describe the possible sanctions and remedies that the recipient may implement following any determination of responsibility.
• Describe the standard of evidence to be used to determine responsibility.
• Establish procedures for the complainant and respondent to appeal, if an appeal is permitted.
• Describe “supportive measures” available to complainants and respondents.

Significantly for elementary and secondary schools, the regulations would grant elementary and secondary schools “the discretion to look to state law and local educational practice in determining whether the rights of the party shall be exercised by the parent(s) or guardian(s) instead of or in addition to” the accused student. For example, if the parent or guardian of a minor student at an elementary or secondary school files a complaint on behalf of the student, and state law and local educational practice recognize the parent or guardian as the appropriate person to exercise that student’s legal rights, the student would be a “complainant” under the proposed regulation even though the action of filing the complaint was taken by the parent or guardian instead of the student.

In addition, the proposed regulations stipulate that nothing in the proposed rules preclude a school “from removing a respondent from the recipient’s education program or activity on an emergency basis” so long as the school “undertakes an individualized safety and risk analysis, determines that an immediate threat to the health or safety of students or employees justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.” However, the proposed regulations also caution that a school considering the removal of a respondent must “follow the requirements of the IDEA, Section 504 and Title II of the ADA.”

3. Investigation of Sexual Harassment Complaints

The regulations further specify proposed requirements that school districts must include in their investigatory processes and procedures. These requirements contain significant changes to ED’s current rules. The requirements include placing “the burden of proof and the burden of gathering evidence” on the school, prohibiting a school from restricting the “ability of either party to discuss the allegations” or “to gather and present relevant evidence,” and notice requirements for any participants in the investigation. The regulations also require schools to provide participants with “the opportunity to be accompanied . . . by the advisor of their choice.” The Department noted that the right to have an advisor, “who may be an attorney,” is “important at the elementary and secondary education level to ensure that both parties are treated equitably.”

In one of the most controversial aspect of the proposed regulations, the Department also permits—but does not require—elementary and secondary schools to conduct “a live hearing.” The Department reasoned that “[b]ecause most parties and many witnesses are minors in the elementary and secondary school context, sensitivities associated with age and developmental ability may outweigh the benefits of cross-examination at a live hearing.”

Regardless of a school’s decision to implement a live hearing component, the regulations impose an affirmative obligation for “the decision-maker” to “ask each party and any witnesses any relevant questions and follow-up questions, including those challenging credibility that a party wants asked of any party or witnesses.” Similarly, “[i]f no hearing is held, the decision-maker must afford each party the opportunity to submit written questions, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” An investigation “must exclude evidence of the complainant’s sexual behavior or predisposition, unless such evidence about the complainant’s sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the evidence concerns specific incidents of the complainant’s sexual behavior with respect to the respondent and is offered to prove consent.”

4. Completing a Sexual Harassment Investigation

When the investigation is complete, a school must provide both parties “an equal opportunity to inspect and review evidence obtained as part of the investigation . . . so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.” Schools must further craft an “investigative report” that “fairly summarizes relevant evidence,” and must provide copies of the report to the parties for review and response. Significantly, the school “must apply either the preponderance of the evidence standard or the clear and convincing evidence standard.” However, a school may only utilize the “preponderance of evidence standard if the school “uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction,” and must “apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.”

The comments to the regulation require the report “issue a written determination regarding responsibility” that includes:

• the sections of the recipient’s code of conduct alleged to have been violated;
• the procedural steps taken from the receipt of the complaint through the determination;
• findings of fact supporting the determination;
• conclusions regarding the application of the recipient’s policy to the facts;
• a statement of, and the recipient’s rationale for, the result, including a determination regarding responsibility;
• any sanctions the recipient imposes on the respondent; and
• information regarding the appeals process and the recipient’s procedures and permissible bases for the complainant and respondent to appeal.

The comments further articulate the Department’s belief “that the benefits of these provisions, including promoting transparency and equal treatment of the parties, are equally applicable at the elementary and secondary level.”

Finally, the regulation requires schools to notify students and parents of elementary and secondary school students “that it does not discriminate on the basis of sex in the education program or activity which it operates.” The required notice “must state that inquiries about the application of Title IX may be referred to” the school’s designated “responsible employee” or “to the Assistant Secretary.” For allegations that are dismissed, the commentary indicates a school would still be free to address such conduct under its general student conduct code, although Title IX does not require the school to do so.

5. Specific Questions Addressed to K-12 Institutions

At the conclusion of the proposed regulation, the Department indicated it is seeking additional comments on specific questions, two of which are directed specifically to public school districts and other K-12 institutions.

First, the Department explicitly states that it is considering the “[a]pplicability of the rule to elementary and secondary schools,” and seeks comments regarding:

• whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level;
• if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties involved and involve parents or guardians; and
• whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider, such as systemic differences between institutions of higher education and elementary and secondary schools.

Second, the Department acknowledges that some aspects of the proposed regulation “differ in applicability between institutions of higher education and elementary and secondary schools.” Specifically, the Department cited the “safe harbor” and “cross examination” provisions applicable to institutions of higher education as important examples. Accordingly, the Department seeks comment “whether our regulations should instead differentiate the applicability of these or other provisions on the basis of whether the complainant and respondent are 18 or over, in recognition of the fact that 18-year-olds are generally considered to be adults for many legal purposes.”

What This Means for K-12 Schools

The Department’s proposed Title IX regulations will result in significant changes to Title IX compliance efforts at K-12 schools. School districts should carefully evaluate the proposed regulations and consider whether to provide comments to ED raising any concerns or suggested modifications. Comments are due on or before January 28, 2019. Under the assumption the proposed regulations may survive the comment process without significant changes, school districts should plan now for how they may need to modify their policies, practices, and procedures to align with the new regulations.