Sex-Based Harassment

Proposed Rulemaking

On June 23, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) released proposed amendments to the Department’s Title IX regulations. The proposed regulations aim to ensure full protection under Title IX for students, employees, and others and end all forms of sex discrimination in federally funded elementary and secondary schools and postsecondary institutions. The agency’s goal is to ensure that no person experiences sex discrimination in education, that all students receive appropriate support as needed to access educational opportunities, and that school procedures for investigating and resolving complaints of sex discrimination, including sex-based harassment and sexual violence, are fair to all involved. The proposed regulations would also clarify Title IX’s coverage of discrimination based on sexual orientation and gender identity, as well as sex stereotypes, sex characteristics, and pregnancy or related conditions.

The Department’s Proposed Title IX Rule was published in the Federal Register on July 11, 2022, thus beginning the 61 day public comment period. The public comment period closed on Sept 12, 2022.

Additional information on the proposed rule, includes a summary with background information and a fact sheet.

Until any new regulations go into effect, the 2020 regulations remain in effect.

2020 Title IX Regulations Regarding Sexual Harassment and Sexual Violence

On May 6, 2020, the U.S. Department of Education released the Department's final Title IX rule which amends the regulations implementing Title IX of the Education Amendments of 1972. The final regulations specify how recipients of Federal financial assistance, including elementary and secondary schools, must respond to allegations of sexual harassment and assault consistent with Title IX’s prohibition against sex discrimination. Title IX Coordinators should work with district legal counsel to understand how the 2020 regulations affect the district’s Title IX policies and procedures and make revisions, as necessary. The 2020 regulations went into effect Aug 14, 2020.

The 2020 regulations remain in effect until new regulations are formally released.

Webinar Series

An Overview of the 2020 Title IX Regulations: What they are and Steps to Take

This two-part informational webinar series was delivered virtually Oct 2020, by the Colorado Department of Education (CDE), in collaboration with the Colorado Association of School Boards (CASB). For more information, or to request a copy of the webinar series, please contact Rebekah Ottenbreit at Ottenbreit_r@cde.state.co.us

Current Federal Guidance and Interpretation of the 2020 Regulations

July 2021, the U.S. Department of Education’s Office for Civil Rights released a Question and Answer document to clarify how the Office for Civil Rights (OCR) interprets schools’ and districts’ obligations under the 2020 amendments to the Department’s Title IX regulations, including areas in which schools have discretion in their procedures for responding to reports of sexual harassment. The focus is on questions related to the most recent amendments to the regulations (the 2020 amendments). The appendix includes sample policies and information on parent/guardian rights.

July 2021 Questions and Answers on the Title IX Regulations on Sexual Harassment

Other interpretation documents and resources released by the department are listed below.

Sexual Harassment

Under the 2020 regulations, sexual harassment, as defined by Title IX, is conduct on the basis of sex that meets one or more of the following descriptions:

A school employee conditioning an educational benefit, service or an individual’s participation in an educational activity upon unwelcome sexual conduct (“quid pro quo”)
Unwelcome conduct determined by a reasonable person to be “so severe, pervasive and objectively offensive” that it effectively denies the victim access to the school’s education programs
“Sexual assault,” “dating violence,” “domestic violence,” or “stalking” as those terms are defined under the Clery Act and the Violence Against Women Act

Anyone, regardless of race, sexual orientation, disability status, or gender identity might be a victim or perpetrator of sexual harassment.

Obligation to Designate a Title IX Coordinator

The U.S. Department of Education's Implementing Regulations 34 C.F.R. Part 106 and the 2020 Title lX Regulations require that all recipients of Federal financial assistance, including elementary and secondary schools, designate at least one responsible employee to coordinate the efforts to comply with Title lX of the Education Amendments of 1972.

A list of district Title lX Coordinators can be found at ED.gov Civil Rights Coordinators Data Website.

Annual Training for Title IX Personnel

Under the 2020 Regulations, Title IX personnel should receive annual, role specific training, conducted by Title IX professionals with experience in Title IX investigations.

Prevention and Preventative Education

The Office for Civil Rights requires schools and districts to provide preventative education that includes:

What constitutes sexual harassment under the 2020 Title IX Rule
The school’s/district's Title IX policy, grievance procedures, and consequences
How to report sexual harassment
For all K-12 staff, students, and parents/guardians

Resources

The Colorado School Safety Resource Center has a list of Resources for Child Sexual Abuse and Assault Prevention which includes educational programs for preventative education, programs to prevent human trafficking, and other resources.
On November 16, 2022, the U.S. Department of Education, Office of Elementary and Secondary Education’s Office of Safe and Supportive Schools, the National Center on Safe Supportive Learning Environments (NCSSLE) hosted a from the Field webinar, Partners in Prevention: Engaging the Secondary School Community to Prevent Gender-Based Violence. The recording and power point can be accessed on the National Center on Safe and Supportive Learning Environments website.

How to Report Sexual Harassment

All of the school/district educational community needs to know how to report sexual harassment. Under the 2020 regulations, schools must notify all applicants for admission or employment, students, parents or legal guardians of K-12 schools, employees, and unions or professional organizations holding collective bargaining agreements that:

The school/district does not discriminate on the basis of sex
The school/district is required, under Title IX, not to discriminate on the basis of sex
This requirement extends to admissions and employment
Inquiries may be referred to the school/district Title IX Coordinator, to the Office for Civil Rights, or to both

For more information, see the Office for Civil Rights Short Webinar on How to Report Sexual Harassment

Complaints

Reports of sexual harassment should be filed with the individual school or district. However, a complaint may also be filed with the Office for Civil Rights: How to File a Discrimination Complaint.