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On July 20, 2021 the Department of Education released a 67-page guidance for the DeVos-era Title IX rule: Title IX Q&A document. The Q&A is consistent with the Final Rule and is a helpful resource that all school districts need to review.
Here are 5 important take-aways from the Department’s Q&A:
Definition of "effectively denies a person’s right to equal access to its education program or activity": Complainants do not need to have “dropped out of school, failed a class, had a panic attack, or otherwise reached a ‘breaking point’” or exhibited specific trauma symptoms to be effectively denied equal access. School officials turning away a complainant by deciding the complainant was ‘not traumatized enough’ would be impermissible (p.7-8).
Off-campus & non-school-related incidents: Each school has the authority to determine whether it has “substantial control” over an off-campus, non-school-related incident and therefore would be required to address it under Title IX. If an incident of sexual harassment between two students in a private hotel room occurs in a context related to a school-sponsored activity, such as a school field trip or travel with a school athletics team, the school would need to consider whether it exercised substantial control over the context in which the sexual harassment occurred. The preamble adds that a school may have substantial control over an incident that occurred in a student’s home, such as where “a teacher employed by a school visits a student’s home ostensibly to give the student a book but in reality to instigate sexual activity with the student (p.9-10).
Incidents occurring prior to August 14, 2020: The Trump rule does not apply to incidents that occurred before August 14, 2020. Depending on the date of the harassment, schools will only need to comply with the 2001, 2011, 2014, and/or 2017 guidances, whichever was in effect at time of the incident, even if the formal complaint was filed on/after August 14, 2020 (p.10).
Notice of Sexual Harassment - "Actual Knowledge": In elementary and secondary school settings, a school must respond whenever any school employee has notice of sexual harassment. This includes notice to a teacher, teacher’s aide, bus driver, cafeteria worker, counselor, school resource officer, maintenance staff worker, coach, athletic trainer, or any other school employee. The preamble explains that “the Department does not limit the manner in which [a school] may receive notice of sexual harassment.” This means that the employees described above “may receive notice through an oral report of sexual harassment by a complainant or anyone else, a written report, through personal observation, through a newspaper article, through an anonymous report, or through various other means (p. 10).
If a complainant has left the school: Even if a student is currently no longer at a school, the school must respond to the student’s formal complaint if—at the time of filing—the student had withdrawn but wanted to re-enroll, had graduated but wanted to apply to a new program or participate in alumni programs, was on a leave of absence but wanted to reapply, was not yet a student but had submitted an application, etc. And even if the student did not file in time and is no longer attempting to participate in the school’s programs in any way (and therefore cannot file a formal complaint), the Title IX coordinator can still chose to sign a formal complaint on the student’s behalf (p.15).
Don't forget New Title IX Regulations require 8-hours of training for your designated leaders and awareness training for your school employees. Schools need to ensure that employees are trained so that those with authority to address harassment, misconduct, discrimination and bullying know how to respond appropriately, and other responsible employees know that they are obligated to report to appropriate school officials. Failing to identify, report, and investigate these behaviors can result in great harm to students and staff and expose districts and individuals to legal liability.