On May 6, 2020, the U.S. Department of Education (“ED”) released the final Title IX regulations (“Final Rule“). The implementation date for the Final Rule is August 14, 2020. While discussion about the Title IX regulations has largely centered on colleges and universities, the changes will also impact how K-12 districts in Illinois should respond to students”™ reports of sexual assault and harassment under Title IX. Below are some of the key Title IX provisions applicable to K-12 schools:
- Title IX uses a narrower definition of sexual harassment. Sexual harassment under the new Title IX regulations is defined as unwelcome conduct that “a reasonable person” would consider “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to an education program or activity.
- Schools must respond when harassment occurs “in the school’s education program or activity.” The final rule expands the definition of “program or activity” to include “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.”
- Schools are only required to respond when they have “actual knowledge” of a complaint of sexual harassment, which can include a report to any employee of an elementary or secondary school. This is a departure from the Obama administration guidance, which required schools to respond to incidents they “reasonably should” have been aware of.
- Parents or guardians of K-12 students may file complaints on their behalf.
- After an assault or a harassment incident covered by Title IX is reported, the school must tell the students involved and their parents in writing about the allegations and evidence that is gathered. The school must also give the accused person at least 10 days to respond.
- Unlike colleges and universities, elementary and secondary schools are not required to hold hearings on student complaints.
- If an investigation is conducted, the decision-maker (who cannot be the same person as the investigator) must issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, and any disciplinary sanctions imposed. The written determination must be sent simultaneously to the parties along with information about how to file an appeal.
- A school with actual knowledge of sexual harassment in an education program or activity must respond in a manner that is not deliberately indifferent. A school is only deliberately indifferent if its response to sexual harassment is “clearly unreasonable in light of the known circumstances.”
Our Illinois Education Law Team will continue to review all the details of the Final Rule. We will also continue to review these changes while considering existing Illinois specific laws. If you have questions about your obligations under Title IX or Illinois law, please contact your Tueth Keeney attorney.
Illinois Education – Tueth Keeney is proud to be one of the state’s largest Illinois education law practices. The firm has one of the most experienced groups of attorneys in Central and Southern Illinois dedicated to serving public schools. We regularly represent nearly 150 public school districts, including many districts in Central and Southern Illinois. Our Firm is also regularly appointed by insurers of educational institutions to represent districts in complex or difficult cases involving school or civil rights laws.
Adam Henningsen practices primarily in the areas of education law, labor and employment law, and civil litigation. Adam regularly works with school districts and individual administrators on matters including labor and employment, contracting, student discipline, special education, and state and federal regulation compliance. He has successfully represented school districts, charter schools, and other employers in State and Federal Court, as well as administrative agencies including the Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, the Missouri Administrative Hearing Commission, and the United States Department of Education Office for Civil Rights. Prior to joining the firm, Adam practiced school law at a firm in Kansas City, Missouri.
Merry Rhoades has more than 30 years of experience representing Illinois public education institutions. Because of her 30-plus years of experience, she has key insights regarding the day-to-day operation of a school district ranging from board governance matters to board policy matters to student matters to special education matters. She is an active member of several school related organizations and serves as a member of the Illinois Council of School Attorneys Executive Committee and also the Illinois Association of School Boards (IASB) PRESS advisory committee.