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

THE FINAL RULE: RECORDKEEPING Under the Final Rule, school systems must keep records related to sexual harassment reports for a minimum of seven years, including investigation records, disciplinary sanctions, remedies, appeals and records of any action taken, including supportive measures. Records should document that the system’s response was not deliberately indifferent and that measures were taken to restore or preserve equal access to the education program or activity.137 If a system does not offer supportive measures in response to a report, the records should document why the response was reasonable under the circumstances.

In addition to retaining any training materials used for Title IX coordinators, investigators, decisionmakers and any other designees, systems must also post the training material on their websites, or otherwise make the materials available to the public if the system does not have a website.138 THE FINAL RULE: CONFIDENTIALITY AND RETALIATION The Final Rule discusses confidentiality in a couple of areas. For example, a school system must keep confidential the identity of any person who has made a report or complaint of sex discrimination, including: (1) any person who has made a report or filed a formal complaint of sexual harassment, (2) any complainant, (3) any person who has been reported to be the perpetrator of sex discrimination, (4) any respondent, and (5) any witness, except: a) as may be permitted by FERPA; or b) as required by law; or c) to carry out the purposes of the Title IX regulations, including conducting any investigation, hearing, or judicial proceeding.139 In addition, the school system must keep confidential any supportive measures provided to the complainant or respondent, unless doing so prevents the system from providing the supportive measures.140 A school system cannot access, consider, disclose or otherwise use a party’s records that are kept by a physician, psychiatrist, psychologist or other recognized professional in connection with treatment, unless the system obtains that party’s voluntary, written consent to do so. If a party is not an “eligible student” as defined under FERPA (e.g., the party is a minor), then the school system must obtain the voluntary, written consent of a parent or authorized guardian.141 36