Title IX is the federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding. Last week, the U.S. Department of Education released draft regulations to replace the President Obama administration’s Title IX guidance that was revoked in 2017.

The 149-page proposed regulations cover three broad areas: the definition of sexual harassment, the events that trigger a school’s obligation to respond, and how a school must respond.

What is actionable sexual harassment under Title IX?

• A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (i.e., quid pro quo harassment)
• Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity
• Sexual assault as defined in the Clery Act regulations

What triggers a school’s obligation to respond?

• The school must have actual knowledge of either sexual harassment or its allegations
• The alleged harassment must involve conduct that occurred within the school’s own program or activity
• The alleged harassment must have been perpetrated against a person in the U.S.

How must a school respond to avoid liability?

• Schools must treat all reports of sexual harassment seriously, regardless of whether the complainant files a formal complaint
• Schools will only be held liable under Title IX when the school knows of sexual harassment allegations and responds in a way that is “deliberately indifferent,” meaning “clearly unreasonable in light of the known circumstances”
• Schools must respond meaningfully to every report of sexual harassment but must only activate its grievance process to potentially punish a perpetrator when a formal complaint is filed
• Every school must have a Title IX Coordinator to intake reports and formal complaints, as well as to coordinate effective implementation of supportive measures
• If schools follow the grievance procedures consistent with the proposed regulations, then they have a safe harbor against findings of deliberate indifference with respect to responses to formal complaints
• If a student reports but does not file a formal complaint, the school only needs to offer the complainant “supportive measures” to obtain a safe harbor against a finding of deliberative indifference
• Schools must have a grievance procedure — with certain enumerated requirements — to handle each formal complaint of sexual harassment

The proposed regulations have already begun to receive criticism. Some of areas of criticism involve the following:

• A person accused of sexual misconduct will be guaranteed the right to cross-examine the complainant during a live hearing
• A school would not be required to conduct an investigation unless a formal complaint is filed
• The only complaints covered in the guidance are those in which the underlying alleged conduct took place on campus or at an educational program or activity
• Schools have the option of adopting the “clear and convincing evidence” standard rather than a “preponderance of evidence” standard
• Schools are allowed to opt into an “informal resolution” at any time, if both parties voluntarily agree to it
• Schools are not required to have an appeals process

The Department of Education’s proposed Title IX rule will be open for public comment for 60 days from the date of publication in the Federal Register.

To learn more about Title IX or how our team can help your institution with compliance, please contact:

• Kristin Klein Wheaton
• Christopher P. Maugans
• Or another member of our Higher Education Practice Group