Since 1972, Title IX has served as an important piece of legislation that guides how educational institutions respond to and seek to prevent discrimination “on the basis of sex,” including sexual misconduct and abuse (see note below). The U.S. Department of Education's Office for Civil Rights (OCR), which enforces Title IX, releases updated guidelines and policies that are used to review and enforce Title IX complaints and regulations with which schools must comply. The most recent regulations fall under the Final Rule, which the Department of Education (ED) announced in May 2020 and released in August 2020.
Although Title IX only applies legally to institutions receiving federal funding, the guidelines and regulations set forth by the Department of Education can serve as useful guides for any school seeking to develop effective and just practices when handling instances of sexual misconduct and abuse. This document summarizes relevant guidelines and regulations provided by ED under Title IX and also includes recommendations from Learning Courage. At the bottom of each section, we have included “Our Observations and Recommendations” on the various guidelines and how they might best apply to your school regardless of whether you receive federal funding.
Note: There are instances in this document when we refer to discrimination “on the basis of sex,” which is language taken directly from the Title IX statute. We recognize that this is outdated language meant to refer to gender-based discrimination and sexual violence. Because the legislation continues to use this language, we have included it here, but in quotation marks. We believe that using “gender-based” as a replacement for “on the basis of sex” is more current and inclusive terminology, so we recommend using that and use that in our work.
We at Learning Courage believe that it is important for all K-12 schools to be familiar with Title IX regulations. While schools that receive federal funding must abide by all Title IX regulations, we also believe that schools that do not receive federal funding can use the regulations to, in part, guide approaches to resolving and reducing sexual misconduct and abuse. In addition to consulting Title IX, it’s also important that your school consult and abide by all other federal and state requirements. We have compiled the following list of our observations and recommendations about Title IX for schools that do not receive federal funding.
Coordinator: Your school should appoint a coordinator, often called a “Wellness Coordinator,” wherever possible. The Wellness Coordinator’s role is similar to that of the Title IX Coordinator in schools that receive funding (duties can include receiving reports of sexual misconduct and abuse, coordinating the investigation and disciplinary processes, reporting incidents to DCF and law enforcement, etc.)
Rationale: It is important and beneficial to create an obvious point of contact for everyone in the community to go to for information and reporting incidents. It also sends a strong statement to the community that your school prioritizes student health and safety. This person can also assist in evaluating policies, procedures, programming, curriculum, and training related to this topic.
Definitions: Your school should provide definitions of sexual abuse, sexual harassment, and other prohibited conduct and communicate those definitions clearly and in a variety of ways to the community throughout the year.
Rationale: This reinforces your school’s commitment to student safety and clarity of communication. It accommodates different learning styles by communicating in a variety of ways and provides a consistent and clear message throughout the school year by communicating definitions frequently and agreeing on what they mean.
Terms: Your school should use the terms “responding party” and “reporting party,” respectively, instead of “respondent” and “complainant.”
Rationale: It is better to use more neutral and less legal language. (See the section on “Other Important Terms Used in Title IX Documents” for a more in-depth explanation of this language.)
Laws: Your school should check and comply with all state and federal laws concerning mandatory reporting, consent, etc. and inform the community about who the mandatory reporters are, what ages of consent are, and more.
Rationale: Clear guidelines help protect your students’ safety and ensure compliance with legal requirements.
Notice of nondiscrimination: Your school should write and disseminate a notice of nondiscrimination, which expressly states that the school does not tolerate gender-based discrimination or sexual violence. This notice should be part of your student handbook and policies and procedures at a minimum. It doesn’t need to be a separate statement from the general statement you have, but take care to update this regularly to ensure it is inclusive to any changes that have occurred in the types of discrimination that can impact physical and emotional safety.
Rationale: This underscores your school’s commitment to protecting all members of the community and provides legal protection.
Grievance Procedure: Your school should write a clear and thorough grievance procedure to establish standards for the allegation, investigation, and disciplinary processes. You should prominently display this procedure in your student handbook and on websites and follow it closely.
Rationale: This provides clarity and awareness for everyone in the community about the process and helps your school follow clearly outlined steps when you are in the midst of a complex and demanding situation.
Prompt, Survivor-Centric Response: Your school should respond to any allegations of sexual misconduct or abuse in a prompt and respectful way and should consider the wishes of the reporting party with regard to how the school responds and investigates the allegations, while also following legal and moral requirements. We also believe your approach should be survivor-centric and trauma-informed.
Rationale: This helps avoid deepening the harm that a reporting party may experience, which can happen by reporting something that they do not want reported. You must also take legal requirements into account and consult your legal counsel to obtain advice concerning any particular legal matter.
Advocates for Reporting and Responding Parties: Ensure that reporting and responding parties have a trained advisor or advocate to help guide them through the process and offer support.
Rationale: It is important for both the reporting and responding parties to have support and guidance as they navigate the challenging process of investigations. While historically, it is more common to support the reporting party (which is essential), we believe that responding parties need support as well.
Student Involvement in Disciplinary Committee: Students should be excluded from serving on disciplinary committees when dealing with hearings for sexual misconduct or abuse.
Rationale: Cases like this require training, sensitivity, and high degrees of confidentiality. Not having students on these disciplinary hearings, helps preserve both confidentiality and professionalism.
Training for Discipline Committee: Members of the discipline committee who conduct hearings should be trained on sexual trauma and its potential impacts on memory and behavior, among other things.
Rationale: Understanding how trauma impacts the brain is important so as to avoid misinterpreting survivor behavior, including changes in memory, recollections, and timeline. It will also help promote a survivor-centric, trauma-informed response, ideally reducing unintended harm to those involved.
Preponderance of Evidence Standard: Your school should use the “preponderance of evidence standard” over the “clear and convincing standard” of evidence. The “preponderance of evidence standard” is easier to meet and is less rigorous than the “clear and convincing standard.”
Rationale: Doing this increases the likelihood that reporting parties will be taken seriously and will therefore lead to more integrity in the reporting process. It can also serve to reduce barriers to having a more accurate finding for the reporting party.
Appeals Process: Your school should articulate an appeal process if you have one. When determining your appeals processes, you might want to consider the differences between current and historic abuse. You should also be clear about the reasons you may consider an appeal such as new or previously undisclosed evidence. Appeals should not be allowed simply because someone didn’t agree with the outcome.
Rationale: Providing clarity to the community regarding the appeals process and potential differences based on whether abuse is current or historic is important to avoid confusion and build community.
Restorative Justice: Your school should offer and facilitate an informal resolution process, such as restorative justice, if both parties give explicit and informed consent. Informal resolution should not occur in instances when an employee has sexually abused a student. The adult who leads the informal resolution process must be trained and qualified. Note that using a restorative justice approach does not replace the normal investigation and discipline committee process.
Rationale: This step can promote resolution and healing while supporting survivors.
Retaliation: You should expressly prohibit retaliation of any kind in circumstances of reporting sexual misconduct or abuse. This should be specifically identified in the Student and Employee Handbooks.
Rationale: It is essential to prohibit retaliation, which is something we believe should be standard in student and employee handbooks to create a safe community.
Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. All schools receiving any form of federal aid must comply with Title IX regulations. This comprehensive federal law prohibits gender-based discrimination and sexual harassment and abuse. Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” [Title Ix Of The Education Amendments Of 1972 | CRT] Under Title IX, survivors of sexual violence can legally hold their schools accountable for keeping them safe. For many years, the application of Title IX was more focused on gender-based discrimination, successfully arguing for more balanced funding for female sports teams. In more recent years, the law has been applied to rules that secure student safety from sexual harassment and abuse.
On May 6, 2020, the Department of Education published the long-awaited Final Rule implementing new Title IX regulations. All schools subject to Title IX compliance are required to adapt to these changes in the Final Rule by August 14, 2020. Since the Final Rule was published, many critics have spoken out against the new regulations. Attorneys General from 18 states have sued the Department of Education in an attempt to block the Final Rule from becoming effective and the ACLU has a pending lawsuit challenging the regulations. You can read more about the Final Rule on the Department of Education’s website here.
We at Learning Courage also recognize various faults and limitations of the Final Rule. While we believe that many Title IX regulations may be useful and effective when implemented, we believe that some of the new regulations of the Final Rule will have real implications for survivors in K-12 schools. While we don’t yet know how exactly all of these changes will affect survivors and school in practice, as a survivor-focused organization we do not agree with any policy that has the potential to discourage survivors from reporting or is not supportive of survivors. For example, one of the new Final Rule policies requires schools to give the reporting and responding parties the opportunity to ask questions of any party or witness and to provide each party with answers. We believe that this requirement (essentially allowing parties to interrogate each other) could negatively affect survivors’ willingness to report, which is detrimental to survivors and therefore should be not considered a best practice. Due process is critical, but it needs to be done in ways that don’t suppress reporting from those who have been victimized.
The Office of Civil Rights (OCR) of the U.S. Department of Education enforces Title IX. OCR has the authority to develop policy on the regulations it enforces. While Title IX is a very short statute, Supreme Court decisions and guidance from OCR have given it a broad scope covering sexual harassment and sexual violence. Schools receiving federal funding must look to guidance materials from the U.S. Department of Education, which outlines policies on the regulations that it enforces under Title IX. [Title IX - Know Your Rights]
Title IX covers all the educational programs or activities offered by an institution receiving federal funding. The intent of Title IX is good and appropriate, and we believe all schools should meet or exceed those requirements. In many cases, this does not apply to independent schools. However, you should check to make sure your school is not subject to Title IX because there are some tracking and reporting requirements that may not be part of your current practices. For example, if your school has received federal funds through the Payroll Protection Program (“PPP”) or as an Economic Injury Disaster Loan (“EIDL”), it may trigger compliance requirements. [FFA and the SBA: Implications for Independent Schools Accepting Federal Financial Assistance | Thought Leadership]
Under Title IX regulations every educational institution receiving federal funding must designate at least one employee to serve as its Title IX coordinator. The Title IX Coordinator ensures schools are compliant with the regulations, coordinates the investigation and disciplinary process, and looks for patterns or systematic problems with compliance to ensure schools fulfill all their federal obligations. [Title IX - Know Your Rights] A school needs to ensure its educational community knows how to report to the Title IX Coordinator. This includes notifying students, employees, applicants for admission and employment, parents or legal guardians, and all unions of the name, office address, email address, and telephone number of the Title IX Coordinator. This contact information should also be prominently displayed on schools’ websites. Any person can report sexual misconduct or abuse to the Coordinator at any time.
If your school does not receive federal funding, it is still useful to appoint a coordinator whose explicit role is to receive and handle reports of sexual misconduct and abuse and to coordinate the investigation and disciplinary processes that follow. It should also be this person’s job to look for individual patterns or systemic problems of abuse in the school in order to ensure the safety of all students and reduce instances of abuse. Many independent institutions call this role the “Wellness Coordinator” as opposed to the “Title IX Coordinator.” We at Learning Courage recommend that all schools clearly state on their websites that students can report abuse to the person serving in this role and include this coordinator’s contact information.
The following is a summary of information on guidelines and regulations provided by the Department of Education under Title IX.
Definition of Sexual Harassment Under Title IX
The Final Rule of Title IX defines sexual harassment broadly to include these three types of misconduct “on the basis of sex”:
If your school does not receive federal funding, it is still important for administrators, faculty, and students to understand what constitutes sexual harassment, misconduct, and abuse. The definitions provided under Title IX may serve as useful guides for your school to develop your own definitions, which should then be communicated clearly to the community. We believe that, in addition to providing definitions for sexual harassment, sexual abuse, and other prohibited conduct, schools should also provide definitions for and educate/train students about “consent” and other relevant topics. (See Learning Courage’s page on “Definition of Terms” for more information.)
Other Important Terms Used in Title IX Documents
We at Learning Courage recognize faults in some of the language above that is used in Title IX documents. Specifically, we believe that the term “complainant” wrongly carries a pejorative tone. No victim of sexual misconduct or abuse should ever be blamed or looked down upon for coming forward. Furthermore, no victim who chooses to report abuse is ever “complaining,” but rather taking a brave step to speak up against the perpetrator. So, we recommend using the term “reporting party” instead of “complainant.” Likewise, we recommend using the term “responding party” instead of “respondent.” For these reasons, in the following sections, we place quotation marks around “complainant” and “respondent.” We believe that “formal complaint” and “supportive measures” are appropriate terms, which many schools already use.
Under the Final Rule of Title IX, K-12 schools receiving funding must respond whenever any employee has notice of sexual harassment, including allegations of sexual harassment. In other words, all school employees must now be considered “mandatory reporters.” Many State laws also require all K-12 employees to be mandatory reporters of child abuse. For schools receiving federal funding, notice to a Title IX Coordinator, or to an official with authority to institute corrective measures on the recipient's behalf, charges a school with actual knowledge and triggers the school's response obligations.
For institutions that receive federal funding, all employees must be mandatory reporters, and schools that do not receive funding should check state laws regarding mandated reporting and ensure that members of the community are aware of mandated reporting laws and adhere to them. At a minimum, we recommend that every school have a dedicated mandatory reporter, regardless of whether all adults are legally considered mandatory reporters. This ensures that there is at least one person at your school whose job it is to report incidents.
Under Title IX, schools must disseminate a notice of nondiscrimination. The U.S. Department of Education recommends that schools: (1) Publish this policy online and have it available in print across campus so that school members may understand its purpose and utility and (2) Include enough detail in the policy so that members of the community can realize sexual harassment and sexual violence are prohibited forms of discrimination.
We recommend that all schools, including those that do not receive federal funding, write and publish explicit and detailed policies against gender-based discrimination, including sexual misconduct and abuse. These policies should be both easy to access and displayed on schools’ websites and in student and employee handbooks.
Under Title IX, schools are required to adopt and publish a grievance procedure outlining the complaint, investigation, and disciplinary processes used for resolving formal complaints of sexual misconduct and abuse. According to guidance by ED, the grievance procedure should be consistent and transparent. The following is a summary of other requirements prescribed by ED for grievance procedures. Grievance procedures must:
We recommend that your school adopt a grievance procedure in order to establish standards for the allegation, investigation, and disciplinary processes. To summarize, a grievance procedure should require an objective, unbiased, and fair approach to investigating allegations and resolving formal complaints of misconduct and abuse. The procedure should be outlined clearly and thoroughly, and it must be followed consistently. An examination of ED’s requirements may provide a solid starting point for crafting a grievance procedure.
The Final Rule provides several response obligations that schools must fulfill. The following is a summary of those obligations.
We believe that all schools, regardless of Title IX status, should respond to any allegations of sexual misconduct or abuse in a prompt and respectful way. This includes communicating openly and understandingly with both the reporting and responding parties and ensuring that they are aware of their options relating to investigations and available support. The wishes of the reporting party/victim should be taken into consideration to the extent that the law allows.
The Final Rule states that, to comply with Title IX, schools receiving federal support must investigate the allegations in any formal “complaint” and send written notice to both parties (“complainants” and “respondents”) of the allegations. For these schools, the following statements are true during the grievance process and when investigating:
Investigations can differ between current and historic incidents and we recognize the importance of having a strong process in place for both. We suggest that the reporting and responding parties involved have a trained support person to help navigate the emotionally-challenging process throughout the investigation. Although schools that do not receive federal funding are not required to follow the above regulations regarding investigations, we at Learning Courage believe that they are nevertheless important to consider. (See Learning Courage’s pages on “Investigations and Responding Practices” and “Historic Misconduct and Abuse” for more information.)
Under Title IX, recipients of federal funding that are K-12 schools may, but need not, have a hearing as part of their grievance process.
We would like to emphasize that, when conducting hearings, your school should prioritize the privacy of both parties involved. While some independent schools have a discipline committee that handles hearings for allegations of sexual misconduct and abuse, students should not serve on this committee when it is handling hearings specifically pertaining to sexual misconduct, in order to ensure privacy and professionalism. It is also important that the adults serving on your committee receive training in sexual trauma. Specifically, committee members should understand the impacts that sexual trauma has on survivors and how that trauma can potentially alter or impair survivors’ memories of the sexual abuse that occurred, through no fault of their own. We also recommend that both reporting and responding parties should have the opportunity to submit a written statement of the events, along with any supporting evidence they feel is important in determining the result and response to the investigation.
The Final Rule requires the school’s grievance process to state the standard of evidence that is used to determine responsibility. This standard of evidence must be applied consistently for all formal “complaints” of sexual harassment whether the respondent is a student or an employee (including a faculty member). The Rule also specifies requirements for written determinations.
We, at Learning Courage, believe that any process that discourages reporting or revictimizes a reporting party must be carefully reconsidered. Furthermore, we believe that applying the preponderance of evidence standard is more appropriate than the clear and convincing standard because there is often conflicting information and a lack of hard evidence in most of these cases. Applying a more rigorous standard will result in fewer findings, which will also discourage reporting. The more rigorous standard will also serve to reinforce the cultural norms around power dynamics and potentially create more unintended harm for those involved. Reporting parties must feel like their case has a good chance of being decided on its merits rather than decided because the certainty of guilt is lacking. As you consider which standard to apply, you should consult your attorney to understand the implications.
The Final Rule states that a school receiving funding must offer both parties the chance to appeal a determination regarding responsibility or a school’s dismissal of a formal complaint or allegations on the following bases: procedural irregularity that affected the outcome of the matter, newly discovered evidence that could affect the outcome of the matter, and/or Title IX personnel had a conflict of interest or bias, that affected the outcome of the matter.
We recommend that your school, regardless of receiving federal aid, articulate if you have an appeal process and state what it is. Many schools have appeals processes that differ depending on if the sexual misconduct or abuse is current or historic, which is an important distinction to consider. (See Learning Courage’s page on “Historic Misconduct and Abuse” for more information.)
The Final Rule allows a school, in its discretion, to offer and facilitate informal resolution options, such as mediation or restorative justice if both parties give voluntary, informed, written consent to attempt informal resolution. (See Learning Courage’s page on “Restorative Justice” for more information.) Any person who facilitates an informal resolution must be well trained. The Final Rule adds:
At Learning Courage, we believe that restorative justice can be an effective strategy for informal resolution. We also agree with Title IX recommendations that informal resolution between parties should only take place if both parties give informed and voluntary consent and that informal resolution processes should not occur in instances when an employee has sexually abused a student. It is crucial that the adults leading the restorative justice process are trained professionals. Additionally, informal resolution options must not be used as an alternative to the existing investigation process but rather in addition to it.
Under Title IX, retaliation (an act meant to punish a person for making a report of sexual misconduct or discrimination) is prohibited. The Final Rule specifies the following:
It is essential to respect the confidentiality of the responding and reporting parties that are involved. We also agree with Title IX regulations that retaliation in circumstances of reporting sexual misconduct or abuse is unacceptable and should be expressly prohibited, with appropriate disciplinary action taken if discovered.
We urge you to review the information in Title IX as it relates to the safety of students and survivors. If not mandated to follow the regulations, please consider using them as guidelines as you review and update your policies and procedures. Please consult your legal counsel, as appropriate, for additional guidance.
Portsmouth, New Hampshire
info@learningcourage.org
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