Title IX For Students: Section D, Sexual Harassment
Written by Cooper & Friedman PLLC on October 19, 2022
In the final installment of the Title IX For Students blog series, sexual harassment is the main point of discussion. While the actual Title IX document has limited information on this facet of discrimination based on sex, there was previously a comprehensive guide dedicated to defining, outlining, and discussing the details of sexual harassment published by the Office of Civil Rights, but that was officially rescinded in 2020 and provisions regarding sexual harassment have since been published. These revisions are known as the “Final Rule,” and will be addressed along with the standing contents of the Title IX document.
Sexual harassment, at the end of the day, regardless of whether the guide has been rescinded or not, is still considered discriminatory conduct under Title IX, and protects students from most facets of sexual harassment. Universities will likely have their own set of specific rules in place to clear up any confusion that Section D of the Title IX law may introduce with the many changes and provisions it has had in the past few years, so be sure to check with your school’s Title IX advisor or on their website.
IV. Discriminatory Conduct
D. Sexual Harassment
1. Overview
Title IX, Chapter IV, Section D’s overview restates the common rule that you can find in the Title IX For Students: Section C, which is part two of this blog series. It goes on, however, to state that if an educational program or activity operating under Title IX discriminates on the basis of sex, including sexual harassment, the educational entity must take immediate remedial action to address the effects of the discrimination.
Take note that Title IX prohibits sexual harassment regardless of the sex of the harasser or the harassed.
1.5. Final Rule Revisions
Moving into the Final Rule provisions published in 2020, four of the notable issues addressed in the document have been included in this blog, but this is not a comprehensive summary of all changes. You can find the official document linked above or on the Summary of Major Provisions of the Department of Education’s Title IX Final Rule PDF.
1. The first notable revision lies in the Final Rule’s definition of sexual harassment, which broadly includes any of three different types of misconduct on the basis of sex, which was previously left to be decided based on a myriad of factors that had to be taken into account. The new definition defines these three types of misconduct as:
- Any instance of quid pro quo harassment by a school’s employee
- Any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access
- Any instance of sexual assault, dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
Notes: Quid pro quo (Latin for ‘this for that’) harassment is defined as a situation in which someone in a position of authority over another either directly or indirectly demands sexual favors in exchange for some benefit or to avoid some detrimental action. This could be a counselor, a teacher, a residential advisor (RA), a teacher’s assistant (TA) or assistant instructor (AI/IA), etc.
Quid pro quo harassment and Clery Act/VAWA offenses are not evaluated for severity, pervasiveness, offensiveness, or denial of equal educational access, because such misconduct is sufficiently serious to deprive a person of equal access.
2. The second notable revision addressed a concern of freedom of speech and how Title IX overlaps with this in offensive speech deemed harassment. The Final Rule states that the use of the Supreme Court’s Title IX-specific definition rather than the Supreme Court’s Title VII workplace standard (severe and pervasive conduct rather than the more encompassing sever or pervasive conduct), which had previously been used. It further states that the “Title IX definition provides First Amendment protections appropriate for educational institutions where students are learning, and employees are teaching. Students, teachers, faculty, and others should enjoy free speech and academic freedom protections, even when speech or expression is offensive.” So, unfortunately, unless your institution has rules against verbal harassment, usually, until it interferes with your equal access to education, Title IX isn’t a good source of protection.
3. The third notable revision included in the provisions document is the retention that the school must investigate the allegations in any formal complaint and send written notice to both parties upon receipt of a formal complaint.
It then outlines terms and information about the grievance process and rules for when investigating, which are that:
- The burden of gathering evidence and burden of proof must remain on schools, not on the parties.
- Schools must provide equal opportunity for the parties to present fact and expert witnesses and other inculpatory and exculpatory evidence.
- Schools must not restrict the ability of the parties to discuss the allegations or gather evidence (e.g., no “gag
orders”). - Parties must have the same opportunity to select an advisor of the party’s choice who may be, but need not be,
an attorney. - Schools must send written notice of any investigative interviews, meetings, or hearings.
- Schools must send the parties, and their advisors, evidence directly related to the allegations, in electronic
format or hard copy, with at least 10 days for the parties to inspect, review, and respond to the evidence. - Schools must send the parties, and their advisors, an investigative report that fairly summarizes relevant
evidence, in electronic format or hard copy, with at least 10 days for the parties to respond. - Schools must dismiss allegations of conduct that do not meet the Final Rule’s definition of sexual harassment or did not occur in a school’s education program or activity against a person in the U.S. Such dismissal is only for Title IX purposes and does not preclude the school from addressing the conduct in any manner the school deems appropriate.
- Schools may, in their discretion, dismiss a formal complaint or allegations therein if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the formal complaint or allegations therein, if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the school from gathering sufficient evidence to reach a determination.
- Schools must give the parties written notice of a dismissal (mandatory or discretionary) and the reasons for the
dismissal. - Schools may, in their discretion, consolidate formal complaints where the allegations arise out of the same facts.
- The Final Rule protects the privacy of a party’s medical, psychological, and similar treatment records by stating
that schools cannot access or use such records unless the school obtains the party’s voluntary, written consent to do so.
4. Finally, the fourth provision we’ll cover states that for postsecondary institutions (colleges, universities, trade schools, etc.), the Final Rule leaves the choice to sanction mandatory reporting for all employees or to designate certain employees that can function as confidential resources for college students to discuss sexual harassment up to the institution.
This confidentiality option does not automatically trigger a report to the Title IX office as notices of sexual harassment to a Title IX Coordinator or to an official with authority to institute remedial measures do. Reports of these natures to officials with this power constitute actual knowledge of misconduct, and therefore must be responded to with remedial measures or the institution may be held liable for monetary damages.
2. General Legal Standards and Relationship to Title VII
This specification of actual knowledge is addressed in subsection 2 of Title IX, Section D.
In general, as the content of the Title IX sex harassment law and its subsequent documents have come to change, the definitions of what conduct constitutes sexual harassment have remained largely the same under Title IX and Title VII. The biggest rift between the two statutes are revealed in the legal standards for assessing the defending entity’s liability for damages in private litigation. The Supreme Court has held that “…a school must be deliberately indifferent in the face of actual knowledge of the misconduct in order to be liable for money damages in private litigation under Title IX.” This differs in the workplace, as employers and companies can be held liable even without knowledge that the misconduct occurred.
Besides that, Title IX outlines several paragraphs within Section D of specific provision in regard to sexual harassment, summarized as:
- (1)(a) Title IX prohibits sexual harassment by teachers or other employees of the federally funded entity administering an education program or activity.
- (2)(a) Title IX also prohibits sexual harassment of one participant by another participant in a program.
- (b) Title IX’s prohibition of discrimination on the basis of sex can include protections against same-sex harassment.
- (c) While it is clear that discrimination in violation of Title IX must be “on the basis of sex,” courts have held that subjecting an individual to sex stereotyping may constitute sex discrimination in appropriate circumstances – i.e. denying access to benefits, programs, or activities because the individual doesn’t subscribe to certain gender norms.
- (d) Sexual harassment may be prohibited even when it does not occur on the program provider’s premises, as long as the off-premises activity during which the sexual harassment takes place relates to the covered educational program. This can include field trips, sports events, institution-funded internships, and any other off-campus program or activity.
What To Do If Your Title IX Case Has Been Mishandled
The sexual harassment section of Title IX may be a little slippery to grasp with the provisions made and rescinded, and the attitude that it sometimes held towards sexual harassment cases. As always, though, it’s important to take a stand against violators of Title IX, and if you believe that your Title IX sexual harassment complaint was mishandled and that the campus policies were misused, or you felt that the complaint and/or investigation itself was mishandled, you have the ability to file a complaint with the Department of Education Office for Civil Rights.
You’re also welcome to bring your case to Cooper and Friedman – experienced Civil Rights lawyers ready to help you with your Title IX violations and questions.
Some important information pertaining to Title IX cases:
- Anyone may file a complaint.
This means that the person or organization filing the complaint do not need to be a victim of the discrimination and may complain on behalf of another person or group. However, the person filing on behalf of another person(s) is responsible for securing any necessary written consent from that individual, including when a parent files for a student over the age of 18.
- A complaint usually has to be filed within 180 days of the last act of discrimination.
If your complaint involves matters that occurred longer ago than this and you are requesting a waiver, you will be asked to show good cause why you did not file your complaint within the 180-day period. This could be due to retaliation done against you because of your intent to file a complaint or other outstanding causes, such as debilitating injury, sickness, or uncontrolled circumstances.
- You may file a complaint online or by email.
You may file a complaint with the Office of Civil Rights (OCR) using their electronic complaint form or by emailing either the electronic complaint form or a scanned, signed written letter of complaint to ocr@ed.gov.
If you or someone you love has suffered a Title IX violation in the State of Kentucky and are in need of an experienced civil rights attorney, give the lawyers at the Cooper & Friedman law firm a call. The attorneys at Cooper and Friedman PLLC have over 50 years of combined experience defending the rights of civil rights violation victims. Schedule a free case consultation with an attorney by calling 502-459-7555 today.