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Title IX Policies and Sexual Harassment in Schools – Kindergarten Too!

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On August 14th new regulations for handling campus sexual misconduct complaints went into effect under Title IX. This had many colleges, universities, and school districts rushing to adapt their policies amidst planning for a new school year starting in the COVID Pandemic.

Title IX originally was passed in 1972 and prohibits federally funded educational institutions from discriminating against students or employees based on sex. Since then, Title IX has been amended to encompass procedures for educational institutions on sexual assault claims regarding their students and employees.

For many years, campuses all over the country have been dealing with incidents of sexual assault. Colleges and universities have been heavily criticized for their response to such incidents including lack of transparency, unequal treatment of survivors and alleged perpetrators, and punishments. The Title IX regulations aim to address some of these concerns; however, some changes have been condemned by advocates for survivors of sexual assault, who say there were excluded from the drafting process of the new policies.

The new set of Title IX policies come at a very difficult time to colleges and schools because of the already demanding planning of reopening or virtual plans for the new school year. Contrary to most of the conversations around Title IX and sexual assault only focusing on higher education like college and university campuses, the Title IX policies also govern incidents of sexual assault in levels K-12.

In order to delay implementation, there were four lawsuits filed against the U.S. Department of Education over the new regulations. The State of New York and the Board of Education for the City School District of the City of New York and several other states attempted to delay the implementation of these new regulations for the K-12 levels. New York argued that it was concerned that many elementary and high schools will have difficulties implementing regulations that are designed to address sexual harassment and sexual assaults on college campuses.

Another concern is that schools do not have the ability to adhere to staff training requirements because of limited personnel to serve as the investigator, decision-maker, and facilitator—while many colleges do have a Title IX coordinator and have the ability to expand, school districts often lack the resources to implement such positions and hire a full team to address these concerns as the new Title IX policies have laid out. A federal judge in New York for the Southern District of New York refused to rule on these issues.

All colleges and schools must now be in compliance with the following new changes to Title IX policies:

  1. Actual Knowledgeschools are only obligated to take action when they receive actual knowledge of allegations of sexual harassment; actual knowledge takes the form of a report being made to the Title IX Coordinator or any official of the school who has the authority to institute corrective measures by the school.
  2. Jurisdictionschools are only responsible for addressing sexual harassment that occurs under an education program or activity; meaning the school has is not required to address incidents that occur outside of its jurisdiction which would include study abroad trips.
  3. Standard of Proofschools can choose the burden of proof for Title IX adjudications; either the lower burden of “preponderance of the evidence” (under 51% chance of guilt) or the higher burden of proof “clear and convincing” (higher than 51% chance of guilt).
  4. Live Hearing—higher education institutions must provide live hearings for formal complaints of sexual harassment; the school must create an audio or audiovisual recording or transcript of the live hearing and it must be made available to both parties for inspection.
  5. Cross-Examination—at the live hearing questioning must be conducted directly, orally, and in real time by the party’s advisor and never by the party himself/herself (the alleged or the survivor).
  6. SingleInvestigator Model—the investigator cannot be the same person who determines whether the alleged is guilty.
  7. Students’ Rights—the investigator must provide all parties an equal opportunity to examine all evidence gathered during the investigation that is directly related to the allegations; all parties must be given a copy of the report at least 10 days before the hearing
  8. Respondents’ Right—schools must tell the alleged accused in writing they are presumed innocent until determined guilty; an alleged person cannot be summarily expelled from school unless they pose an immediate threat to the physical health or safety of the complainant or anyone else
  9. Informal Resolution­­—schools may offer an informal resolution option, like mediation, to the parties but both must give voluntary and informed written consent; this does NOT apply to allegations that an employee sexually harassed a student
  10. Recordkeeping Requirements: schools must maintain Title IX records for 7 years.

Another not-yet-known part of Title IX regulations is that they also govern incidents involving employees. Employees of a school can be the alleged in student-initiated complaint or report. Only a student complaint can initiate a formal complaint and trigger the formal grievance process requirements of a hearing—which means that an employee would be subject to the new rules mentioned above. But these new Title IX policies also require that schools adopt and public grievance procedures to address sexual harassment complaints brought by employees against other employees.

The new Title IX policies will change the landscape of sexual harassment and sexual assault claims brought by students. The implications of these procedures are especially challenging during the new landscape of virtual and in person classes this Fall. Many students fear that the new policies will not adapt well to students attending classes online and interactions that necessarily take place outside of the school’s jurisdiction.

Aleksandra Syniec is a 3rd year law student at Seton Hall University School of Law. She is also knowledgeable in landlord-tenant law and information technology.

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