New Title IX Rules: What Needs to Change Before Back to School This August
| | Title IX, Title IX : Sexual Assault/Misconduct
School policies and procedures will need to change to comply with the new Title IX rules that take effect on August 1. Most colleges, universities, and K-12 schools start the school year in August, so back to school could be a little different. Certainly, those who work with policies will need to work hard over the next few months to get ready for the changes.
If you are heading back as a student or employee, there are some things you should be aware of. If your school policies haven’t changed to keep up with the legal requirements, or your school does not follow the requirements when it comes to handling a Title IX complaint, it would be a good idea to consult a knowledgeable attorney who can help protect your Title IX rights on campus and in court, if necessary.
Definition of Sex Needs to Be Updated
The implementing regulations prohibit discrimination on the basis of sex in a wide array of formats. For purposes of Title IX requirements, the definition of sex has been expanded under the new rules.
The new rules require schools to expand what is considered a Title IX violation to include discrimination on the basis of:
- Sex stereotypes
- Sex characteristics
- Pregnancy
- Pregnancy-related conditions
- Sexual orientation
- Gender identity
Since more than half the states in the country have challenged this expansion of the scope of Title IX, schools located in these states may need to have two versions of the rules ready on August 1. At least some schools and districts should expect to see legal action regardless of whether they incorporate the new definition into their policies. Making the change will anger some groups, while refusing to make the change will anger others, and as of the moment, it is difficult to envision a compromise that will fully satisfy both sides.
Definition of Sexual Harassment Needs to Be Clarified
In addition, sex-based harassment–which is considered a form of prohibited discrimination under the Title IX scheme—has also been redefined. It includes harassment based on the newly-included characteristics, of course, but there are other clarifications in the new rules. Both “sexual harassment” and “sex-based harassment” are specifically defined to include quid pro quo sexual harassment, sexual assault, stalking, dating violence, domestic violence, and situations that create a “hostile environment.”
With regard to the definition of when sex-based harassment creates a “hostile environment,” the standard under the new rules departs from both the standards of the Trump administration and the Obama administration.
For harassment to create a hostile work environment under the pre-2020 scheme, conduct generally had to be unwelcome and either severe, persistent, or pervasive to create a hostile environment. The standard became harder to satisfy when the rules changed in 2020. The unwelcomed conduct had to be severe, pervasive, and objectively offensive to create a hostile environment.
The new standard, which will take effect August 1, defines hostile environment harassment as unwelcome conduct that is subjectively and objectively offensive and that is either severe or pervasive. This definition seems to split the difference between the two earlier definitions, perhaps striking a much-needed balance.
Changes to the Duty to Report and Respond to Sex-Based Harassment
Under the 2020 rules, schools and their employees had a reduced duty to identify and report sexual or sex-based harassment. Only employees with “actual knowledge” of conduct that could constitute a violation were required to report to the school’s Title IX Coordinator. The reporting then triggered an obligation to respond in a way that was not “deliberately indifferent.”
That vague standard of action left the door wide open for interpretation or shut the door on complaints, depending on your perspective.
The new rules change the standard for reporting. An employee need not have actual knowledge of conduct that could violate Title IX. Instead, any employee with “information” about such conduct has an obligation to report it. If a potential violation is reported to someone designated as a confidential employee, that employee must disclose their confidential status and give the person reporting to them information about how to inform the Title IX Coordinator.
The new rules also set a different standard for a school’s response to a report. When a school receives a report of conduct that could constitute a violation, it must respond “promptly and effectively.” While this standard also leaves much room open for interpretation, it is at least not a double negative.
Changes in Grievance Procedures
To be ready for August 1, schools will need to change their policies for handling complaints of Title IX violations. Schools can continue to use many previous standards, such as the requirement that responsibility be proven by “clear and convincing evidence,” but they must use the same standards in all “comparable proceedings.” Schools have permission to adopt a lower standard of proof, the preponderance of the evidence standard. Moreover, they can specify in their policies that they will be using the “single investigator” model in many situations, allowing the Title IX Coordinator to serve as investigator and decision-maker. In addition, schools have the ability to establish and use an informal resolution process in many more situations.
Students, Faculty, and Staff Need to Know How to Protect Their Title IX Rights
Although Title IX regulations are designed to balance needs and protect all students, faculty, and staff, as a practical matter, striking the right balance is very difficult. It is common for a school to err on one side or the other, either failing to pursue a complaint adequately or failing to protect the due process or rights of the respondent. Working with an experienced Title IX attorney allows both complainants and respondents to understand and take advantage of the full protections available both in campus disciplinary proceedings and in court.
If you are concerned about a Title IX issue anywhere in the country, our team would be happy to explain your options for pursuing justice. Just schedule a confidential consultation by calling 212-736-4500 or contact us online.