Let’s look at the proposed Title IX regulations….

The Department of Education has issued proposed regulations pursuant to Title IX.  These proposed regs have a long way to go. There will be a 60-day public comment period, following which the DOE will sift through all of the comments before making changes and finalizing the  regulations.  The primary focus of the proposed regulations is to provide guidance to schools, colleges and universities about when and how they are required to investigate complaints of sexual harassment.  Today we will hit the highlights of proposed new regulation 34 CFR 106.44, and tomorrow we will do the same with 106.45.

Section 34 CFR 106.44, as proposed, is titled RECIPIENT’S RESPONSE TO SEXUAL HARASSMENT. Here are six key points included in this one regulation:

  1. WHAT YOU KNEW. NOT WHAT YOU SHOULD HAVE KNOWN.  When does your legal duty arise?  DOE proposes to stick to the standard used by the Supreme Court, rather than the more aggressive approach promoted by DOE under President Obama.  The Supreme Court standard imposes a legal duty on a school district only when the school has “actual knowledge of sexual harassment in an education program or activity.”
  2. HOW TO RESPOND. Again, sticking with SCOTUS rulings, the DOE only requires the school to avoid being labeled “deliberately indifferent” in its response to complaints of sexual harassment.
  3. A SAFE HARBOR. Schools are guaranteed to avoid the “deliberately indifferent” label with regard to “formal complaints” if they comply with the procedures set out in 106.45, which we will talk about tomorrow.
  4. EMERGENCY REMOVAL. A school may order the emergency removal of a student. But there are four important limitations on this authority.  First, the school must conduct “an individualized safety and risk analysis”; second, the school must make a determination that “an immediate threat to the health or safety of students or employees justifies removal”; third, the school must provide the respondent with notice and an opportunity to challenge the decision immediately following the removal.  Fourth and most important for K-12 schools: “This provision shall not be construed to modify any rights under the IDEA, Section 504 of the Rehabilitation Act of 1973, or title II of the Americans with Disabilities Act.”  So if an IDEA or 504 eligible student is charged with sexual harassment, any “emergency removal” would have to conform with the usual procedures.  The proposed regulations do not override those protections.
  5. ADMINISTRATIVE LEAVE. The “emergency removal” provision appears to be about students, rather than employees, because the very next provision assures schools that they can still put employees on administrative leave “during the pendency of an investigation.”
  6. WHO KNEW? The proposed regulations state clearly that “constructive knowledge” (what you should have known) does not create a legal duty.  Nor does the fact that someone who works for the school knows about sexual harassment.  The legal duty arises when “the school” knows. So what does that mean?  The proposed regs set out three categories of employees whose knowledge of sexual harassment would be imputed to the school. They are 1) the Title IX Coordinator; 2) “any official of the recipient who has authority to institute corrective measures on behalf of the recipient”; and 3) “a teacher in the elementary and secondary context with regard to student-on-student harassment.”

Tune in tomorrow for some comments about 34 CFR 106.45.


Tomorrow: More on the new Title IX regulations.