Title IX Q&A

The U.S. Department of Education has issued a Q&A document explaining how it plans to interpret the 2020 regulations issued under Title IX. The most important parts for elementary and secondary schools are the sections about notice and hearings.

The notice provisions are much broader for K-12 schools than for postsecondary. According to the regulations, any time that any employee has notice of possible sexual harassment, the school must respond in the way that the regulations set out. The requirement extends to notice to a teacher, teacher's aide, school bus driver, cafeteria worker, maintenance worker or any other employee. A school can train a volunteer, such as requiring a parent to participate in mandated reporter training, without triggering the Title IX notice requirement. A school can give a volunteer authority to initiate the Title IX process, but training by itself will not create the obligation.

The second part relevant to K-12 schools is the fact that those schools need not conduct a live hearing. They must have some decision-making process, but it need not be a live hearing. The K-12 process must allow both the complainant and respondent the opportunity to submit written, relevant questions that the party wants any other party or witness to answer. Both parties also must have the right to submit limited follow-up questions. The person or panel deciding the claim must ask the questions or explain to the party why the question is not relevant.  Parents or guardians may act on behalf of a child.

Finally, the document clarifies that private schools "controlled by" a religious organization are exempt "to the extent that application of Title IX would be inconsistent with the religious tenets" of the organization. The most likely questions in the near future will revolve around DOE's recent notice of intent to apply Title IX to transgender rights. Religious schools can learn more information about exemption from Title IX requirements on the DOE website.