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On May 6th The United States Department of Education’s Office for Civil Rights (OCR) released a Final Rule implementing Title IX of the Education Amendments of 1972 (“Title IX”). The Final Rule, which is a 2,000+ page document, takes effect August 14, 2020 and can be intimidating to digest - serving as some good bed time reading material for those who suffer from sleep apnea.
The new regulations, which are significantly different and more stringent than ever before, have "the force of law" and school districts that fail to comply with the new Department directives by August 14, 2020 stand to lose the funding they receive from the federal government. The Department of Education also announced it will be conducting compliance reviews of how K-12 schools and districts handle cases of sexual assault. These consequences are in addition to the millions of dollars in civil claims that school districts may pay out for non-compliance if an incident happens on their watch.
To get you started, the Department of Education has prepared some summary documents, which we suggest you take a look at:
After you read through the summaries, you may still be asking yourself, so what exactly do I have to do? To help wade through the mud, here are five key take aways about the new Title IX regulations for school district administrators:
1. Update your Policies
Review and revise your Title IX Policy to be compliant with Department directives. The following changes may need to be made to your policy:
Redefine sexual harassment as the OCR now does (see footnote).
Describe the process for submitting a formal written complaint.
Outline the process for emergency removal of a staff or student.
Describe the possible range of sanctions that could apply for policy violations.
Develop informal resolution processes and an appeals process.
Post your Title IX policy on your district website and distribute widely.
Review and revise your Grievance Process:
Process must be fair, equitable, without bias or conflict of interest, and not reliant upon stereotypes.
Separate decision-makers must be involved in process – i.e., investigator separate from the ultimate decision-maker (policy violation decision).
Either a preponderance of the evidence or clear and convincing standard can be used to make determinations.
The burden is on the school to gather evidence to support a finding.
All information gathered in the investigation process must be shared with both parties before a decision is issued.
An appeal is allowed for both parties.
2. The Role of the Title IX Coordinator
Identify your Title IX coordinator and clearly define their role.
Make sure the Title IX coordinator’s contact information is identified on the district website.
Notify all parents or guardians of students, students and employees about who the Title IX Coordinator is.
Shift existing personnel or make new hires to effectively implement and support the Title IX Coordinator role and responsibilities.
3. The Investigation Process
Title IX only applies when sexual harassment occurs in a school's education program or activity.
If a formal complaint is filed that meets Title IX sexual harassment criteria, you must investigate.
Ensure effective documentation procedures are in place for how the district receives and maintains information including documenting an incident, notifying the parties and parents or guardians, conducting an investigation, and informing the appropriate and necessary people about the final outcome.
Investigations should be completed within a "reasonable amount of time." Have a decision maker who is separate from an investigator.
Maintain all records for a period of at least seven years.
4. Training for Designated Leaders
All involved in the grievance process must be specifically trained.
Training is required for "Title IX Coordinators, Investigators, Decision-makers, and anyone who facilitates an informal resolution process."
Training must cover the new definitions of sexual harassment and sexual misconduct as well as the highly expanded investigation requirements.
Each of these staff members are required to participate in a minimum of 8 hours of training by August 14th, with follow up trainings each subsequent year (see page 1960).
Conflicts of interest must be accounted for and alternates will be needed.
5. Training For ALL Staff Members
K-12 schools must respond when ANY employee has notice of sexual harassment.
School districts need to ensure that ALL staff understand what the Department defines as actual knowledge of a Title IX incident that triggers K-12 personnel’s duty to report to the district Title IX Coordinator.
Districts need to ensure that ALL employees are trained on Title IX, how to recognize potential concerns, and how to report it internally to the Title IX Coordinator.
School districts are required to train a minimum of 50 percent of their staff each year to account for turnover in staff or training of additional staff (see page 1959).
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Many more boxes are required to be checked! A full compliance checklist is included with our trainings. Our team at McGrath Training Solutions is committed to helping you understand and comply with these updates so you can keep the people and district you care about safe from harm and liability. Email us or give us a call (1.800.733.1638) to set up some time to discuss your training needs. We are here to help provide quality training materials to ensure you are compliant with your state and federal laws and create a safe school environment for all your staff and students.
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OCR Definition of Sexual Harassment: Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
1. Quid pro quo sexual harassment;
2. Hostile environment sexual harassment, defined as unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectionably offensive that it effectively denies a person equal access to the recipient’s education program or activity (emphasis added); or
3. Sexual assault, dating/domestic violence, or stalking (uses Violence Against Women)