Understanding Title IX and the New Sexual Harassment Regulations for School Boards

In addition, the Title IX Coordinator may also sign a complaint but doing so does not make the Title IX coordinator a party in the grievance process. Only a complainant and the Title IX Coordinator may file a formal complaint.107 A “respondent” is a person who has been reported to be the perpetrator of sexual harassment.108 The respondent can be a fellow student or a school system employee.

THE FINAL RULE: THE SCHOOL SYSTEM’S RESPONSE As mentioned above, the Final Rule requires that a school system respond in a manner that is not deliberately indifferent. To meet that requirement, the Final Rules discuss the general requirements for responding to actual knowledge of sexual harassment separately from the required procedure for responding to a formal complaint of sexual harassment, defined as a document filed by a complainant or signed by the Title IX Coordinator.109 Put another way, under the new Rules, a school system’s response is now two-fold: (1) a system’s general response to actual knowledge of sexual harassment, (which could include an informal verbal or written report of sexual harassment by any individual), and (2) a system’s response to a formal complaint. 110 GENERAL RESPONSE The Final Rule requires a school system respond promptly, in a manner that is not deliberately indifferent to actual knowledge of sexual harassment. This provision adopts the Gebser/Davis standard, as does the Final Rule’s definition, stating that a recipient is deliberately indifferent if its response is clearly unreasonable in light of known circumstances.111 SUPPORTIVE MEASURES A school system’s response must treat complainants and respondents equitably by offering supportive measures to a complainant and by following a grievance process before imposing any disciplinary consequences or sanctions on a respondent.112 “Supportive measures” are non-disciplinary, non-punitive, individualized services, offered as appropriate and without charge to a complainant or a respondent before or after the filing of a formal complaint, or where no complaint has been filed.113 Examples of supportive measures include counseling, course modifications, schedule changes, and increased monitoring or supervision. Supportive measures should be designed to restore or preserve equal access to the education program or activity without “unreasonably” burdening the other party. In other words, a supportive measure that completely removes a respondent from an activity would likely be considered punitive.114 28