Like a shockwave, the onset of COVID-19 has had a monumental, unprecedented, life-altering impact on educational institutions throughout the United States. Accompanied with rapidly changing guidance, the topic that has inundated both secondary and post-secondary educational institutions in the last few months has been the implications of providing educational opportunities in a COVID-19 environment. In the midst of the COVID-19 impact, 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 published during the height of COVID-19 on May 19, 2020 and are set to go into effect on August 14, 2020. These new Title IX regulations impose a markedly distinct framework from the last two decades for how educational institutions must handle allegations of sex discrimination under Title IX. In the event your institution has not turned its attention to the new requirements yet, here is an overview of some of the significant components 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, supportive measures, elementary and secondary school, postsecondary institution, and deliberately indifferent
- “Actual knowledge” of sexual harassment required versus “known or should have known”
- Response obligations for sexual harassment allegations limited to people 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 “supportive measures” in response to a “report” and must conduct formal investigations in response to a “formal complaint”
- Must conduct individual safety and risk analysis for respondent resulting in a determination of an immediate threat before removing the respondent from education program
- Respondent has right to challenge removal decision immediately after removal
- Permitted to select a “preponderance of the evidence” standard or the “clear and convincing evidence” standard
- 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 evidence obtained in an investigation and allow the parties to submit a written response prior to completion of the investigation
Applies Only to Post-Secondary Institutions Receiving Federal Funds
- If student discloses allegation of sexual harassment to the Title IX Coordinator or to any official with the authority to impose corrective measures if needed, then the educational institution is deemed to have actual knowledge
- Grievance hearings must be live and permit each party’s advisor to ask the opposing party and witnesses “cross examination” questions
Applies Only to Secondary Institutions Receiving Federal Funds
- If student discloses allegation of sexual harassment to any employee of an elementary and secondary school, educational institution has actual knowledge
- While permitted to do so, secondary institutions are not required to provide hearings for the grievance process.
These overarching areas highlight some of the significant changes imposed by the new Title IX regulations. Although educational institutions have been encumbered with the COVID-19 implications on the upcoming school year, they are expected to implement all of these robust, exhaustive regulations by August 14, 2020. While there are efforts to delay the August 14, 2020 implementation date, it is in educational institutions’ best interest to make efforts to implement these changes now.