This month new rules were released by the Education Department regarding the manner in which schools respond to student reports of sexual assault and harassment.  These federal rules seek to require a more formal process for investigation of claims of sexual assault and harassment and to create a system whereby the results of such investigations are shared with students and their parents or guardians.  Brought under the purview of Title IX, these new requirements apply to K-12 institutions receiving federal funding.  While sexual assault and harassment cases must be reported to the police, these rules may offer a more formalized process within the school itself with transparency provided to the involved students and parents and guardians.  Under the new requirements, a victim of sexual assault will be provided written notice of any punishment given to the perpetrator. 

The rules also mandate an investigator independent of the decision-maker.  Typically, these types of investigations within K-12 institutions are conducted by Principals or Vice-Principals who are also responsible for determining punishment, if any.  Investigations will be conducted upon any report of sexual assault or harassment, whether the report comes directly from a student or elsewhere.  It will also be required that schools investigate and address allegations that occur on school property as well as during a school activity such as a field trip or athletic event.  They regulations do not cover activities that are not affiliated with the school or school activities, such as private parties. 

While the regulations offer broader requirements in terms of investigation, they narrow the types of allegations that are required to be investigated.  The new regulations define unwelcome conduct as conduct that “a reasonable person” would consider “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to an education.  This narrow definition of sexual harassment and assault leaves out a substantial range of conduct that many students and parents would consider objectionable when that conduct is not severe and pervasive.  It raises questions of just how much a student must endure before a school will begin an investigation, leaving victims vulnerable to continued violations until the conduct is sufficient severe or pervasive to warrant an investigation under the new standards. 

Because this is the first time such regulations have been applied to K-12 institutions under Title IX there is no case law to provide guidance on what conduct meets the threshold.  Arguably, young people who are learning about concepts of sexual harassment and assault may be more sensitive to statements and conducts than adults in the workplace who are also required to prove persistent and pervasive conduct. 

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