LEGAL UPDATE Terence Morrow, MSBA Director of Legal and Policy Services

LEGAL UPDATE

New Title IX Final Rule on Sexual Harassment

By Terence Morrow, MSBA Director of Legal and Policy Services

In May 2020, the U.S. Department of Education issued an anticipated final rule that amends the federal regulations related to allegations of sexual harassment in educational institutions. The rule seeks to clarify the definitions and administrative liability that may arise in sexual harassment cases involving K-12 school districts that are Title IX recipients. The final rule goes into effect on August 14, 2020. MSBA will issue revised policies and provide additional assistance to districts before the effective date.

Sexual harassment: One of the highlighted developments centers upon the definition of “sexual harassment.” The final rule states that sexual harassment is conduct on the basis of sex that occurs in one or more of the following situations: (1) an employee conditions provision of aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (quid pro quo harassment); (2) unwelcome conduct that a reasonable person would perceive as so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an education program or activity; or (3) sexual assault, dating violence, domestic violence, or stalking as defined under federal law. Title IX Coordinator: A K-12 school district must designate an employee whose responsibilities include coordination of the district’s compliance program. This employee, who must be known as the “Title IX Coordinator,” may be an employee with other assigned duties.

Policy and notice requirements: A K-12 school district must provide notice of its nondiscrimination policy and grievance procedures, which must state that the district does not discriminate on the basis of sex in its education program or activities. The notice must include the Title IX Coordinator’s phone number, office address, telephone number, and email address. The notice must appear on the district’s website and handbooks.

Reporting allegations of sexual harassment: Any person may report sexual discrimination, including sexual harassment, under the final rule. A report may be made at any time.

The final rule defines a district’s “actual knowledge” of sexual harassment as notice of sexual harassment or allegations of sexual harassment that any employee

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possesses. In the past, notice to a K-12 teacher of studentto-student sexual harassment was imputed to the district. The final rule expands the scope to any district employee’s knowledge.

Complainant and respondent: The final rule states that a complainant is an individual who is alleged to be the victim of sexual harassment. The complainant must be participating in or attempting to participate in the district’s education program or activity at the time that the complaint is filed. The complainant may file a formal complaint. The Title IX Coordinator may sign a complaint; a third-party reporter may not file a formal complaint.

The educational institution’s response: The final rule distinguishes the requirements upon a school district when it has notice of sexual harassment and the district’s procedure for responding to a formal complaint of sexual harassment.

A school district must respond promptly to actual knowledge of sexual harassment in an education program or activity. A district must treat complainants and respondents equitably by promptly offering supportive measures to a complainant and by following a grievance process before imposing discipline or sanctions upon a respondent. Emergency removal of a respondent may be taken to protect others from an immediate threat of physical health or safety.

Additional procedural measures and requirements for the formal complaint process are set forth under the final rule. These requirements address written notice, dismissal of a formal complaint, investigation, the hearing process, determination of responsibility, appeals, informal resolution, recordkeeping, and retaliation.

MSBA is grateful to the National School Boards Association for its guidance, upon which this article draws.

Terence Morrow is the MSBA Director of Legal and Policy Services. Direct questions to him at tmorrow@mnmsba.org.

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