After a lengthy notice and comment process, the Department of Education released its long-awaited Title IX rules on sexual harassment on May 6, 2020. A list of key provisions of the rules is available on the Department of Education website.

Highlights

  • The rules include a new definition of sexual harassment to mean:
    • Any form of quid pro quo harassment, that is, conditioning any educational opportunity or benefit on the granting of sexual favors, regardless of its severity or pervasiveness.
    • Any form of sexual assault, dating violence, domestic violence, or stalking as defined by the Clery Act. These forms of misconduct are so serious in themselves that no finding of “pervasiveness” is required.
    • Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to an education program or activity (i.e., hostile environment).
  • Postsecondary institutions (but not elementary and secondary schools) must hold live disciplinary hearings in sexual misconduct cases and allow cross-examination of witnesses
  • The regulations require all elementary and secondary education teachers and staff to report allegations of misconduct of which they are aware, but they do not specify who must be deemed a “mandatory reporter” in colleges and universities.
  • Lastly, the new rules include only very limited direction as to the remedies that schools must offer either to aggrieved individuals or to the student body, and they do not address prevention. The rules left these matters to each educational institution.

Background

Part of the Education Amendments Act of 1972, Title IX is a federal law that states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Next Steps

Schools from kindergarten to graduate should familiarize themselves with the new Title IX requirements to ensure compliance and consider how best to adapt their current policies and procedures to the new requirements. Read the key provisions of the new rules linked above.

If you have questions related to this update, please contact your North Risk Partners advisor. Don’t have an advisor? No problem. We’ll help you find one.

This regulatory update is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.