On August 14, 2020, the Department of Education’s final regulations regarding sexual harassment under Title IX went into effect. This marks the final step in a controversial process that began in November 2018, when President Trump’s Secretary of Education Betsy DeVos submitted a proposal to drastically overhaul many aspects of the Title IX guidelines instituted under the Obama administration.
Title IX, which applies to all educational institutions that receive any form of federal funding, prohibits discrimination on the basis of sex, including sexual harassment. Title IX is perhaps best known as a legal framework governing how colleges and universities address issues of gender discrimination, sexual harassment and sexual assault. Title IX, however, applies equally to elementary and secondary, i.e. K-12, schools. Under the new Title IX regulations, there are some important distinctions that apply to K-12 schools, but not to colleges and universities.
First, one of the most disputed aspects of the new Title IX regulations is the requirement that colleges and universities must now hold live disciplinary hearings and permit cross-examination of witnesses. Under the previous regime, schools were discouraged from allowing an alleged perpetrator to cross-examine the complainant because of the very likely possibility of re-traumatization. Fortunately, this new requirement does not extend to K-12 schools. The final regulations dictate that K-12 schools may, but are not required to, hold live hearings and permit cross-examination. This appears to be an acknowledgment that subjecting a victim to rigorous cross-examination is stressful and simply may not be appropriate for a younger child. However, the new regulations permit each party in a K-12 Title IX proceeding to submit written cross-examination questions to the other party or to any witness.
Second, the new Title IX regulations, clarify the reporting requirements for K-12 schools. Institutions of higher learning are only required to respond to a complaint if it is brought to the attention of the Title IX coordinator. But under the new regulations, notice to any K-12 school employee triggers an obligation to respond. In other words, any elementary or secondary school teacher or staff member is a mandatory reporter. If they learn of an allegation of sexual harassment, they must report it. The theory is that college students are mature enough to decide for themselves whether they should report sexual harassment allegations to the Title IX coordinator and to seek that person out. In contrast, a younger child cannot be expected to understand the process and know which official to report to.
The Title IX process and the new regulations are complicated. If you or your child has been subject to sexual harassment in a school setting, the lawyers at Sanford Heisler Sharp can help you navigate the process.