are required to turn away and dismiss certain complaints about sexual misconduct if the conduct is outside the new Title IX definition of sexual harassment. Systems, however, can still address, and may be required to address, the same conduct if it violates other provisions of the student code of conduct or another applicable federal or state law. One such law that may require a system to still address a student’s complaint is the Jamari Terrell Williams Bullying and Prevention Act passed in Alabama in 2018.152 Like the Final Rule, the Jamari Terrell Williams Bullying and Prevention Act also has very strict requirements and processes that school officials are required to follow. Thus, school systems must now make sure employees receive knowledge and training on all applicable laws, policies and procedures and their overlap in order to avoid costly litigation and OCR scrutiny. Next, in the employment context, the Final Rule now clearly applies sexual harassment to employees. It is still unknown, however, whether OCR will attempt to enforce Title IX in the employment context, or whether OCR will defer to the Equal Employment Opportunity Commission (“EEOC”), which is charged with enforcing discrimination and harassment under Title VII. Or rather, will the EEOC and the OCR work together? Until school systems are provided further clarification from one or both of the agencies, systems must now blindly navigate how to address sexual harassment through the lens of both Title IX and Title VII. Despite the lack of clarity regarding compliance with Title IX, however, because the Final Rule went into effect in August, school systems must act now to come into compliance. Finally, AASB notes that the Biden Administration has indicated an intent to revise certain provisions. However, until such time as that happens, school systems are expected to comply with the new Title IX regulations. Thus, until school systems receive further clarification from OCR or the Department of Education, school systems should focus on training employees and updating policies and procedures. The Appendix shares resources and sample letters to provide some guidance as you navigate the Final Rule. Given all these complexities and the changing environment, AASB encourages school system officials and board members to consult with their school board attorney, especially when allegations of sexual harassment arise.
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