Update on Title IX Requirements for High Schools

Title IX of the Education Amendments of 1972 has been getting a lot of attention recently. 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, Title IX legislation has always been and remains equally applicable to K-12 schools.

With the change of presidential administrations, there has been a focus on the Title IX regulations and other areas of the law such as transgender participation in athletics. Many Executive Orders have been issued since the January 21st inauguration, one of which includes a rescind of the Biden administration’s 2024 Title IX regulations and reinstating the 2020 Title IX regulations that were issued during the first Trump administration under then Secretary of Education Betsy DeVos. As challenges to some of the Executive Orders begin and work their way through the legal system, interscholastic athletic administrators do need to understand their role with the reinstatement of the 2020 Title IX regulations.

To be clear, the 2020 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 equitable 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 equal participation opportunities for girls and boys through the “three-prong-test” and equitable treatment through analysis of 11 program areas. Athletic administrators should continuously assess their athletic programs and develop a strategic plan to achieve compliance.

A major focus in the 2020 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 2020 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 2020 Title IX regulations essentially make reporting a federal requirement.

• Schools must respond when harassment occurs “in the school’s education or activity programs,” which includes 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 2020 Title IX 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 school leadership should re-engage and retrain in order to meet the requirements of the 2020 Title IX regulations and consider the following:

• 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 or update the previously issued 2024 Title IX regulation policy requirements so that they are compliant with the Department of Education directives of the 2020 regulations; • 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 2020 Title IX policy and procedures; and

• 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 2020 Title IX regulations define the obligations K-12 schools have for addressing sexual harassment including athletic departments. School athletic administrators must take a proactive approach to address the requirements put forth by the 2020 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 2020 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. The school’s athletic administrator and Title IX coordinator should meet on a 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 in Title IX 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. It is about access for students and employees to education programs and activities provided by a school free from discrimination based on sex. Schools have the responsibility to protect every student, and to ensure that every student has the freedom to learn and thrive in a safe and trusted environment. Schools have a legal requirement to educate all students, and schools 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
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.stopsexualassaultinschools.org
PA Coalition Against Rape www.pcar.org (Sexual Harassment Curriculum Guide)
Coaching Boys Into Men www.coachescorner.org
A Call to Men www.acalltomen.org
Education Risk Management www.edurisksolutions.org
NFHS Learn Courses www.nfhslearn.org