Department of Education Releases Final Title IX Regulations: What Missouri Public Schools Need to Know

May 14, 2020

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 Missouri should respond to students’ reports of sexual assault and harassment under Title IX.  Notably, the regulations deviate significantly from the “Dear Colleague Letters” that were previously issued under the Obama administration.

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  This is a departure from the Obama administration guidance, which required schools to respond to harassment for which they “reasonably should” have been aware. However, it is important to note that “actual knowledge” by the school includes a report made to any employee of an elementary or secondary school.
  • 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.   This is a departure from typical privacy practices dictated by the Family Educational Rights and Privacy Act (“FERPA”).
  • Schools are required to maintain records of investigations and their outcomes for at least seven years.
  • 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.”

Tueth Keeney’s experienced Education Team will continue to review all the details of the Final Rule and provide specific guidance, based upon the current polices of each school. If you have questions about how these regulations might impact your institution, please contact your Tueth Keeney education attorney.

Missouri Education  – The law firm of Tueth Keeney Cooper Mohan & Jackstadt, P.C. (the “Firm”), has one of the largest and most successful education law groups in the country. The Firm regularly serves the legal counsel needs of approximately 150 school districts throughout Missouri. The Firm also has one of the largest school law practices in Central and Southern Illinois.

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.

Adam comes from a long line of public school teachers and administrators. Prior to attending law school, Adam graduated with honors from the School of Education at Mizzou and taught social studies courses at the high school level.

Jenna M. Lakamp practices primarily in the areas of labor & employment, litigation, and education law, representing both private and public institutions in education and employment matters. Jenna is licensed in Missouri and Illinois and regularly litigates in both jurisdictions. Prior to joining the firm, Jenna practiced civil litigation at a large defense firm in St. Louis where she gained experience in discovery, motion practice, and client interaction. Jenna attended law school at Washington University in St. Louis, where she was active in The National Moot Court Team. Jenna also clerked with a successful litigation firm during law school.