Legal Matters

Sexual harassment is a major concern at colleges and universities; however, K–12 school leaders must also recognize its prevalence in their schools. As of May 1, 2020, the U.S. Department of Education’s Office for Civil Rights (OCR) had 239 open investigations concerning sexual harassment or sexual violence within K–12 school districts. Notably, this number only reports the number of filed OCR complaints involving violations of Title IX of the Education Amendments Act of 1972 (Title IX) and may not be reflective of the total number of actual instances of sexual harassment that have occurred in schools.

Over the past decade, the U.S. Department of Education (ED) has offered guidance about how sexual harassment should be addressed in K–12 schools. Yet, this guidance has shifted with the transition from the Obama to the Trump administration, leaving many school leaders confused. To provide clarity, this article summarizes the past guidance and explains what principals should do in light of the most recent Title IX regulations from May 2020.

The 2020 regulations are significant—they are among the most substantial revisions to the regulations that implement Title IX in many years. Unlike the previous Dear Colleague letters discussed below, these new regulations have the force of law because they underwent the formal rule-making process, which includes a public comment period. These regulations went into effect on August 14, 2020.

Past Federal Guidance

In 2011, ED issued a Dear Colleague letter that focused on student-to-student sexual harassment, offering definitions and explaining schools’ legal obligations. Additionally, in 2014, the OCR released a document responding to more than 50 questions about requirements under Title IX to assist institutions in reducing sexual violence. The 2011 Dear Colleague letter and the 2014 OCR “Questions and Answers on Title IX and Sexual Violence” scripts were considered “significant guidance documents,” and they were used nationwide. However, these guidance documents were not legally binding because they did not go through the formal rule-making process.

In 2017, the ED rescinded the 2011 and 2014 Obama-era sexual assault guidance, and implemented new interim guidance. In 2018, ED proposed new regulations to Title IX that changed many of the above requirements, including the definition of sexual harassment.

New Federal Regulations and District Liability

In May 2020, ED released its new Title IX regulations. The document includes several changes that will apply to colleges, universities, and K–12 schools. For example, sexual harassment is now defined more broadly to include sexual assault, dating violence, domestic violence, and stalking.

In the past, school officials needed to respond to sexual harassment if they “reasonably should” have been aware of it. Under the new regulations, they are required to respond when they have “actual knowledge.” For elementary and secondary schools, “actual knowledge” occurs when any employee has notice of actual or alleged sexual harassment. The regulations also require K–12 schools to use a narrower definition of sexual harassment than what was recommended in earlier guidance documents. Sexual harassment is now defined as “conduct that is unwelcome and being so severe, pervasive, and objectively offensive that it effectively denies a student equal access to an education.” In the past, it had been defined as “unwelcome conduct of a sexual nature.” Note that instances of sexual assault, i.e., rape, do not need to be evaluated for severity, etc., as outlined above because they are automatically considered serious enough to deprive a person of equal access to an education.

Also, to find a school district legally liable for failing to respond to accusations of sexual harassment, the student would need to demonstrate that school officials responded with “deliberate indifference” toward the harassment. The regulations define this as actions that are “clearly unreasonable in light of the known circumstances.”

New Reporting Requirements

The new regulations require that several options exist for reporting sexual harassment, including the ability to make a verbal or written report. School districts should also accept reports of harassment by email or telephone. Additionally, anyone can now report the harassment, including friends and bystanders. The regulations further clarify that school officials must investigate whenever any district employee learns about an incident involving a student and sexual harassment. Schools will be required to investigate cases that happen on campus or as part of school activities only. In contrast, the earlier Title IX guidance required schools to address off-campus sexual harassment that interfered with students’ opportunities to an equal education.

New Investigation Requirements

Importantly, the rules make exceptions for K–12 schools in order to not treat children the same way they would treat young adults. For example, K–12 schools are not required to hold a hearing or cross-examinations, which are required at postsecondary institutions; however, parties must be able to submit written questions. The regulations also require “supportive measures” to students whether or not they file a formal complaint. This might include altering class schedules or providing counseling services.

Recommendations for Principals

  1. Work with district leaders to designate a Title IX coordinator to provide training, handle reporting requirements, and address issues as they arise.
    • Ensure that students, employees, parents, unions, and applicants for admission or employment are given written notice of the coordinator’s contact information.
    • Publish the coordinator’s contact information on the school’s website.
  2. Adhere to your state law on mandatory child abuse reporting.
    • Develop a comprehensive procedure that integrates those provisions with the reporting requirements of Title IX.
    • Recognize that some instances of sexual harassment may also fit within the definition of child abuse and must be both investigated internally and also reported externally.
  3. Ensure your Title IX procedures include the requirements for a prompt and mandatory response to sexual harassment, including:
    • Contact and offer supportive measures to the alleged victim by the Title IX coordinator.
    • Follow a grievance process in compliance with the regulations.
    • Ensure students’ constitutional rights are not abrogated—avoid illegal searches.
  4. Train all employees about their legal responsibilities to report and address sexual harassment.
    • Clarify the new reporting and investigation requirements (e.g., actual knowledge required).
    • Provide examples of sexual harassment that must be reported and investigated.
    • Request that employees help you educate students, families, student teachers, and volunteers on their responsibilities.
  5. Stay abreast of the law, as it changes frequently.
    • Research federal and state law, as well as district policies.
    • Study case law. In fact, a few legal challenges to the new Title IX regulations have already been filed (see References).

Jennifer Rippner is a co-editor of the 4th edition of Contemporary Issues in Higher Education Law and is a faculty member at Indiana University in Bloomington, IN. Suzanne E. Eckes is a professor at Indiana University, a co-author of Principals Avoiding Lawsuits, and a past president of the Education Law Association. Janet R. Decker is a co-author of Legal Rights of School Leaders, Teachers, and Students and is an associate professor at Indiana University.


Sidebar: References

34 C.F.R. § 106 (2018).

Commw. of Pa., et al., v. DeVos, Case 1:20-cv-01468 (D.D.C. June 4, 2020).

Ali, R. (2011, Apr. 4). Dear colleague letter. U.S. Dep’t of Educ. Retrieved from www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf.

Know Your IX, a Project of Advocates for Youth, et al. v. Devos, et al., 20-cv-01224 (RDB) (D. Md. May 14, 2020).
Lhamon, C. (2014, Apr. 29). Questions and answers on Title IX and sexual violence. U.S. Dep’t of Educ. Retrieved from www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.

U.S. Dep’t of Educ. (2020a, May 1). Pending cases currently under investigation at elementary-secondary and post-secondary schools. Retrieved from www2.ed.gov/about/offices/list/ocr/docs/investigations/open-investigations/tix.html#.

U.S. Dep’t of Educ. (2020b, May 6). Title IX regulations, unofficial, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf.