On May 6, 2020, the United States Department of Education released new Title IX regulations that establish how education programs which receive federal funding must respond to sex discrimination, including sexual harassment.

Much has been written about how the new rules apply to college classrooms and dormitories, but the new regulations also apply to elementary school playgrounds and high school sports programs. In fact, the regulations detail specific minimum responsibilities and requirements that apply to kindergarten through 12th grade.

The date of implementation of the new regulations for schools was August 14, therefore, the new regulations process for schools is now in place.

Title IX prohibits sex discrimination in a school’s activities and programs, and requires all schools, from K-12 to post-secondary institutions, to take appropriate steps to prevent and redress issues of sex discrimination. For many years, while the public’s focus has been drawn to Title IX at institutions of higher education, this legislation has always been and remains equally applicable to K-12 schools.

To be clear, the new regulations do not affect Title IX compliance relative to a school’s obligation to provide a fair and equitable athletic program. Schools are still required to provide equitable opportunities and treatment to students who choose to participate in interscholastic athletic programs.

The Office for Civil Rights (OCR) will continue to determine whether a school’s athletic program provides adequate participation opportunities through the “three-prong-test.” In addition, schools remain obligated to provide gender equity in the “other athletic benefits and opportunities” area that accompany sports participation.

As schools across the country develop budgets, accessing school funding and all the direct and collateral consequences of the pandemic, K-12 schools cannot ignore and must take the immediate step of addressing how to implement the new Title IX regulations. A major focus in the regulations is to ensure that alleged victims (complainants) and perpetrators (respondents) of sexual harassment, are treated equitably during any complaint process. Among the key provisions for K-12 schools are:

When a school district has actual knowledge of sexual harassment, the new regulations prohibit districts from responding in a manner that is “clearly unreasonable in light of the known circumstances.” A K-12 district has “actual knowledge” when any employee has notice of sexual harassment or allegations of sexual harassment. While many states already have mandatory reporting statutes for districts, the new Title IX regulations essentially make reporting a federal requirement.

• Schools must respond when harassment occurs “in the school’s education or activity programs,” which would include athletic programs. Once a district’s response obligations are triggered, the Title IX coordinator must promptly contact the complainant to discuss supportive measures, consider the complainant’s wishes regarding supportive measures, and explain the process for filing a formal complaint.
• The new regulations expressly recognize the legal rights of parents and guardians to act on behalf of students in Title IX matters. Parents or guardians of K-12 students are permitted to file complaints on their behalf and require parental notification of complaints against their children. Ultimately, the parents or guardians of students may make decisions regarding appropriate supportive measures or whether to file or withdraw a formal complaint.
• School districts are required to offer and provide “supportive measures” to students, with or without a formal complaint. Supportive measures may include counseling, contact restrictions and modifications of class schedules to name a few. Additionally, districts must follow a grievance process before imposing any discipline or non-supportive measures against the respondent.

School district administrators and leaders should consider the following steps as an outline of some things that need to be done in order to meet the requirements of the new Title IX regulations.

• Review the current Title IX (sexual harassment) policy and identify who is currently responsible for implementing Title IX and responding to incidents in the school district;
• Revise the existing or draft a new Title IX policy that is compliant with the Department of Education directives;
• Identify the school district’s Title IX coordinator and clearly define his or her role. Post this information on the school district’s website;
• Identify what other personnel may be needed to effectively implement and support the school’s Title IX policy and procedures which could prompt hiring considerations or shifts in existing personnel and their roles;
• Notify all parents or guardians of students, students and employees who the Title IX coordinator is and how to report an incident of sex discrimination in a program or activity the school operates;
• Understand what the Department of Education defines as actual knowledge of a Title IX incident that triggers any K-12 personnel’s duty to report it to the district Title IX coordinator.
• Distribute and conspicuously post information and conduct training regarding the district’s approved Title IX policy and procedures;
• Provide training that is comprehensive and continuous for all school district personnel including athletic coaches, to ensure they are knowledgeable about the new Title IX policy and procedures.
• Ensure that a prompt and equitable grievance process and effective documentation procedures are in place for how the district receives and maintains information.

Unfortunately, incidents of sexual harassment occur across the spectrum in K-12 schools. The new Title IX regulations increase the obligations K-12 schools have for addressing sexual harassment – including athletic departments. School district athletic administrators must take a proactive approach to address the requirements put forth by the new regulations. Among the essential steps for athletic administrators to undertake are:

• Locate the school district’s Title IX coordinator. The district Title IX coordinator should not be the school district’s athletic administrator. The requirements of Title IX are extensive, and the Title IX coordinator’s duties and responsibilities go far beyond athletics. With the new Title IX regulations comes increased responsibilities for the district Title IX coordinator, which includes training of all school district employees and staff including cafeteria workers and bus drivers. The school’s athletic administrator may fill the role of deputy Title IX coordinator for athletic compliance as part of the administrative team.
• Communicate regularly with the school district’s Title IX coordinator and meet with that individual on a consistent, routine basis. Collaborate in the training of coaches and athletic personnel.
• Participate in all school district’s Title IX training opportunities. The athletic administrator should be a part of the school district’s “Title IX Team.”
• Disseminate school district policies and procedures to the coaching staff and athletic personnel. Include policies and procedures in the coaches’ handbook and make the conversation about Title IX requirements a regular practice during coaches meetings, new coaches orientations and regular one-on-one conversations with coaches.
• Be the expert of Title IX and its application to athletics. Learn about the law – do not fear the law. Seek assistance from resources and experts in the field.
• Do not allow the athletic program to be isolated from the other functions of the school district. As the school district’s athletic administrator, seek to be included as part of the school district’s administrative team.

Title IX is an important and valuable federal law. Schools have the responsibility to protect every student, and to ensure that they have the freedom to learn and thrive in a safe and trusted environment. Schools have a legal requirement to educate all students and they also have a legal obligation to provide a safe and orderly environment for students and, to protect their health, safety and welfare. This legal obligation also extends to education-based athletic programs.

Resources:

U.S. Department of Education www.ed.gov
U.S. Department of Education Office for Civil Rights www2.ed.gov
Association of Title IX Administrators www.atixa.org
Institutional Compliance Solutions www.icslawyer.com
Title IX Clearinghouse www.titleix.com
Stop Sexual Assault In Schools www.stopsexualassaultinschool.org
PA Coalition Against Rape www.pcar.org (Sexual Harassment Curriculum Guide)
Coaching Boys Into Men www.coachescorner.org
EduRisk www.edurisksolutions.org