The United States Department of Education has released proposed amendments to the regulations implementing Title IX of the Education Amendments of 1972. The Department’s Notice of Proposed Rulemaking and summary document indicate that the Department determined that current regulations and guidance do not provide appropriate standards for how educational institutions that receive federal funding must respond to incidents of sexual harassment.
The proposed amendments have not yet been published in the Federal Register. Once published, there will be a 60-day comment period from the date of publication. Notably, the Department has expressed that it is particularly interested in comments regarding whether there are parts of the proposed amendments that will be unworkable at the elementary and secondary school level; if there are additional parts 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.
The proposed Title IX regulations reflect that “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.” The Department has indicated that, therefore, unless the educational institution’s response to sexual harassment is clearly unreasonable in light of known circumstances, the Department will not second-guess such decisions. While this acknowledgment and position are favorable to educational institutions, there are also components of the proposed amendments that may be problematic.
The proposed rule would, for example, require that the decision-maker not be the same person as the Title IX Coordinator or the investigator. This may require changes in current protocols for many educational institutions. Moreover, the proposed regulations would require that an educational institution apply the same standard of evidence for complaints against students as it does for complaints against employees. The Department seeks comments regarding this issue. Any such requirement could prove to be particularly problematic in New York state, where different standards apply to due process proceedings involving students under the education law and employees under the education law, civil service law and collective bargaining agreements.
While the amendments are currently proposed only and subject to change following the public comment period, this alert encourages educational institutions to consider submitting comments once the public comment period commences; and provides a few housekeeping and other considerations for educational institutions in preparation for regulatory amendments.
Title IX Coordinator, Policy and Grievance Procedures
The current Title IX regulations require educational institutions to create and disseminate a policy of non-discrimination of students based on sex, designate a Title IX Coordinator, and adopt and publish grievance procedures providing for prompt and equitable resolution of complaints that a student is being discriminated against based on sex. While we await the final amended regulations, it is prudent to confirm these requirements are currently met and that appropriate training has been provided.
Requirements and Protections Under Other Laws Such as the Dignity for All Students Act
With regard to sexual harassment, the proposed amendment would fairly strictly define the conduct constituting sexual harassment for Title IX purposes; specify the conditions that trigger an educational institution’s obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of an educational institution’s response; specify situations that require an educational institution to initiate its grievance procedures; and establish procedural safeguards that must be incorporated into an educational institution’s grievance procedures to provide a fair and reliable factual determination when an educational institution investigates and adjudicates a sexual harassment complaint.
Remarkably, while the proposed amendments incorporate requirements for “actual knowledge” (e.g., via a report to a teacher) to trigger an educational institution’s obligations under Title IX and “deliberate indifference” (i.e., clear unreasonableness in light of the known circumstances) for Title IX liability to attach, it is imperative to keep in mind, particularly in the K-12 context, that other laws, such as the New York State Dignity for All Students Act (“DASA”), contain extensive definitions and are more liberally construed to afford students in New York State protections against bullying, harassment and discrimination on the basis of protected category and otherwise.
For example, while the proposed regulations indicate that the alleged harassment must involve conduct that occurred within the school’s own program or activity (e.g., on campus or at an offsite event), DASA protection extends to bullying, harassment and discrimination that occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Should you have questions and/or seek assistance with sexual harassment prevention policy review and/or training, please contact Sara Visingard at (585) 419-8748 or the Harris Beach attorney with whom you typically work.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.