First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

– First Amendment of the United States Constitution

The First Amendment includes several specific freedoms that are particularly relevant to K-12 students.

Prohibited Speech: School officials cannot formally restrict most student speech. As a general rule, the U.S. Constitution protects student speech that does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” In addition, school officials bear the burden of justifying any restrictions on student speech. Nevertheless, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Schools also can punish lewd or offensive speech that occurs at school. But when the school’s concerns are not legitimate, its authority to restrict student speech ends.

Compelled Speech: School districts cannot compel student speech on any topic. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia v. Barnette (1943)

Retaliation: Teachers and other school officials cannot retaliate against students who engage in protected speech in the classroom, on school grounds, or off school grounds. Although the test varies slightly by circuit, the federal appellate courts have held that students can sue for First Amendment retaliation if they were engaged in protected speech, the school took an adverse action, and the student’s speech was a motivating factor for the school’s action. The school’s adverse action must be something that would deter a student of ordinary firmness from engaging in that speech again. Giving a student poor grades or reviews is a clear example. Notably, the Eighth Circuit recently held that “the stress, anxiety, and ostracization arising from a teacher’s false attribution of racist utterances to a middle-schooler” also “might fit the bill.”

Additional Resources:

Students Don’t Have to Leave Their Faith at Home, Alliance Defending Freedom
4 Things You Can’t Say in the K-12 Classroom, Foundation for Individual Rights in Education
K-12 Expression and the First Amendment, Foundation for Individual Rights in Education
Free Speech and Mental Health in School, Foundation for Individual Rights in Education
Know Your Rights: Religious Freedom, American Civil Liberties Union
Know Your Rights: Students’ Rights, American Civil Liberties Union

*Source: Parents Defending Education, Resources

MODEL RESOLUTION FOR FREEDOM OF EXPRESSION

Model Freedom of Expression Resolution Based on University of Chicago Statement

Parents’ Bill of Rights:

To protect the fundamental right of a parent to direct the upbringing of a child.

Defined Terms:

Parent(s): Parent(s)/Legal Guardian(s)

LEA(s): Local Education Agency(ies)

SEA(s): State Education Agency (ies)

The role of parents in the raising and rearing of their children is of immeasurable value and deserving of both praise and protection by all levels of government. The tradition of western civilization recognizes that parents have the responsibility to love, nurture, educate, train, and protect their children.

Parental Rights to direct the upbringing of a child are inalienable, Further, these rights are enshrined by the following:

S.984 – Parental Rights and Responsibilities Act of 1995 which prohibits the Federal Government or any State or local government, or any official of such a government, from interfering with or usurping the right of a parent to govern the upbringing of a child of the parents. It also disallows any exceptions to this Act unless the government or official is able to demonstrate, by appropriate evidence, that such interference or usurpation is valid to accomplish a compelling government interest, in which case only the least amount of interference may be used; and

The Supreme Court of the United States Meyer vs Nebraska, 262 U.S. 390 (1923) – the court ruled that the fundamental right of parents to direct the upbringing of their children is implied in the concept of ordered liberty within the Due Process under the 14th Amendment and Case Law; and

The Supreme Court of the United States Pierce vs Society of Sisters, 268 U.S. 510 (1925) – the court ruled that the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Therefore, this legislative body resolves to observe and enforce the following:

Article I: Commitment to Respect for the Rule of Law, the [Insert State] Constitution, and the Constitution of the United States of America:

School divisions, being arms of local government, are obligated to follow the Constitutions of [Insert State] and the United States of America; and

In all its operations, curricula, and teaching, the school divisions shall prioritize meritocracy, equal opportunity, equitable assignment of resources, respect for the rule of law, and respect for the constitutions of [Insert State] and the United States of America.

Article II: Fundamental Parental Right to Parent as they see Fit: This right is afforded to parents by the Due Process Clause under the 14th Amendment and Case Law.

Article III: Parental Right to Know what their Child is Learning (Legal Right of Parents in Schools):

Transparency of Curriculum: Every school division in the [Insert State] shall prominently display on the school division’s website and on the website of each school in the division the following information by July 1st of each year, organized by subject and grade level: The instructional materials and activities that were used during the previous school year and for the upcoming school year, including any materials assigned, distributed, or otherwise presented in any course for which a student receives credit, or any materials from which students are required to select one or more options if the selection is restricted by the school; and
Transparency and Display of Training Materials:
1. Each school division in the [Insert State] shall display on the school division’s website any materials used by the school division for staff and/or teacher training, any procedures for the documentation, review, or approval of the learning materials used for student instruction, including by the principal, curriculum administrators, the office of “equity”, or other staff; and
2. Each school division in the [Insert State], display of training materials shall include all details necessary to identify the learning materials and activities used for instruction, including the title and the author, organization, app, or website associated with each material and activity. When possible, trainings will be live streamed on the school division’s website and Parents will be notified via email and social media. Nothing in this section shall be construed to require the digital reproduction of the materials themselves or the separate reporting of individual components of materials produced as a single volume; and
3. Parents’ Right to their Children’s School Records: Parents shall have the right to obtain their student(s)’ trueschool records per the Family Educational Rights and Privacy Act (FERPA). No duplicate or alternate records shall be made with the purpose of inhibiting transparency; and
4. Parental Right to Transparency from the School Board and the School Division’s Administration: Each school division in the [Insert State] shall host quarterly, open town hall meetings to present and update on the division’s activities, take questions from the public on those activities, and openly discuss other matters of public concern. The town hall meetings will include the superintendent, members of the School Board, the Chief of Staff of the school division, and relevant department heads of the school division; and
5. Parental Right to Provide Input on Certain School Division Contracts: Any and all proposed contracts valued at more than $5,000 between any school division in the [Insert State] and an outside contractor or consultant will be posted on the division’s website and will invite public comment for a duration of 45 days. Such public comments will be posted on the website and addressed by the school board and superintendent at the school board meeting following the close of public comment. The school division will not execute any such contract before this process has been completed; and
6. Parental Right to Visit and Observe their Child’s Classroom: This right is afforded to parents under Every Student Succeeds Act (ESSA); and
7. Prohibition of Charges for Freedom of Information Act Requests: Being that the residents are already paying taxes to the county, and a significant portion of those tax dollars are spent on the schools, no school division in the [Insert State] shall charge the residents for Freedom of Information Act Requests.

Article IV: Parental Right to their Student’s Data and the Protection of Student’s Data:

Parents have the right to refuse or minimize data collection of their student. Students’ data is to be used for “educational purposes” and/or “educational quality” only, and prior consent must be given; and
Parental prior consent must be given before any student data is disclosed to a third party; and
Parents must give informed consent prior to the collection of their student’s data and use, including information on what data points are to be collected, including metadata, generated data, and data used in personalized or adaptive learning; and
Parents have the authority to determine who receives access to the data collected outside of the LEA, and/or any third-party vendors including all technology companies, application providers, scientists, and researchers. Without prior consent, no data is to be given to third-party vendors; and
Any data collected on a student may only be used within the context of the student that provided said data. LEAs and third-party vendors or companies may not repurpose student data without informed prior consent of the Parent.
1. Any data collected on a student may only be used within the context of the student that provided that data. LEAs and third-party vendors or companies may not repurpose student data without the affirmative and informative consent of the parent; and
2. Parents have the legal right to expect secure and responsible data practices. LEAs, SEAs, or third-party entities have a legal responsibility to use best practices for security and publish algorithms directing their decision-making process per parent request.
Student Privacy and Safety:
1. No school shall require a student to use an identification device that uses radio frequency identification or similar technology to identify the student, transmit information regarding the student, or monitor or track the student without approval of the school board, after a public hearing, and without the written consent of the parent of an affected student which may be withheld without consequence; and
2. No school shall install remote surveillance software on a school supplied computing device provided to a student without the approval of the school board, after a public hearing, and without the written consent of the parent of the affected student which may be withheld without consequence. “Surveillance” refers to observing, capturing images, listening, or recording, and shall not include locating equipment when there is reason to believe the equipment is about to be or has been stolen or damaged; and
3. No school shall visually record in any way, a school classroom for the purpose of teacher evaluations without school board approval after a public hearing, and without written consent of the teacher and the parent of each affected student; and
4. Nothing in this section shall preclude the use of audio or video recordings for use with or by a student with a disability, or by such student’s teacher or service provider when the student’s individualized education program or accommodation plan includes audio or video recordings as part of the student’s education, services, assistive technology service, or methodology, so long as such audio or video recordings are made, used, and maintained in accordance with the Family Education Rights and Privacy Act (FERPA) and applicable state law; and
5. Parents have the right to recourse, including private right of action, in the event of data abuse and non-compliance.

Article V: Parental Rights to Freedom of Speech, Private and Public Communications Guidelines, and Social Media Conduct:

Parents and Students are entitled to Freedom of Speech without reprisal from the government (local, state, or federal), without defamation of character, either slander-spoken or libel-written. Defamation of Character can lead to civil penalties. Sources: What is Freedom of Speech; Defamation of Character; and
Each school division in the [Insert State] and its board members, administrators, teachers, and staff shall refrain from any and all implied or explicit threats, personal attacks, misinformation, activism, paid campaigning not related to running for office, and discussion of these activities against any member of the community; and
Each school division in the [Insert State] and its board members, administrators, teachers, and staff shall refrain from participating in any social media groups that restrict or otherwise discourage membership based on political, policy, or social viewpoints as they relate to the division’s public schools; and
Prohibition on Political Affiliation Discrimination: no school division in the [Insert State] shall discriminate against any student, teacher, staff member or parent on the basis of political affiliation or perceived political affiliation; and
Anonymous Reporting: for any and all students accused of either discrimination, or the use of a slur based on race, ethnicity, religion, sexual orientation, or gender identity, the school division shall work with the student’s teachers and parents and provide that student and the student’s parents with an opportunity for a hearing conducted in accordance with the due process of law; and
Prohibition against all forms of Social Emotional Learning, without informed prior parental consent. This includes surveys or instructional materials or lessons with specific data gathering, that intends to determine the emotional state of a student, or views held by a student. This prohibition is consistent with the Protection of Pupil Rights Amendment (PPRA, 1978) and as amended (2002), which also requires the district to seek parental permission prior to any such activity; and
Prohibition against any administrator, school counselor, school psychologist with a master’s or lesser degree, or any teacher or staff member, assigning a mental health, psychological, emotional assessment, or survey, diagnosing, and/or treating or assigning a course of action. Parents must be informed of such request from their student. Parents must be made aware of all and any such assessments and give informed prior consent to any such assessments and/or any data that may be shared with third parties.

Article VI: Freedom of Religion:

Parents shall be able to excuse their student(s) from ANY school activity if it conflicts with their religious beliefs. Source: ACLU The Right to Religious Freedom; and
Parents have the right to dispute an educational topic that is in conflict with their educational or moral beliefs. Sources: Parental Rights Case Law; CA and Constitutional Parental Rights Case Law.

Article VII: Teachers are not Certified Mental Health Professionals:

Pursuant to The Public Health and Welfare Code 42 USCS § 254c-16 (2) [Title 42. The Public Health and Welfare; Chapter 6A. The Public Health Service; General Powers and Duties; Primary Health Care; Health Centers] – the term qualified mental health professionals refers to “providers of mental health services reimbursed under the Medicare program carried out under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.) who have additional training in the treatment of mental illness in children and adolescents or who have additional training in the treatment of mental illness in the elderly.” Teachers are not qualified to provide lessons and/or counseling on matters of mental health or social views.

Equitable Grading Explained

Grading for equity, a concept popularized by consultant Joe Feldman, seeks to replace traditional grading concepts which use measurable inputs and outcomes, including class attendance and participation, test scores, and completed assignments, with Equitable Grading that relies on “Accuracy” “Bias Resistance” and “Motivation”. Although, as we will see, Equitable Grading can cause confusion for teachers, students, and parents, and reduces clear metrics by which students can be measured.

Equitable grading is making its way into more K-12 public schools. So, Parents Defending Education has created this resource to help parents understand common Grading for Equity jargon.

Equity- This word is commonly understood to mean fairness or justice, but it is now used by activists to mean something much more specific: equality of outcomes between different racial groups. When you hear activists demand “equity,” what they’re actually saying is that the basic American value of equality of opportunity — that the rules should apply equally to everyone, regardless of race — is racist, because equality of opportunity doesn’t always produce equality of results. The solution is “equity,” or attempting to achieve equality of results through discrimination.

Traditional Grading– This grading practice is most likely what parents and grandparents were graded on when they were in school. According to Common Goal Systems Inc., an educational technology company in traditional grading, “students are primarily measured by the percentage of work successfully completed.” Usually, schools use a A-F scale that corresponds with percentages from 0 -100%.

Equitable Grading- “Grading for Equity”, has been popularized by Joe Feldman. It refers to a system of grading that attempts to remove perceived bias from grading and have all students reach the same academic outcome, no matter how they got there. For example, if a student misses class and does not submit homework, but shows mastery of a subject at the end of a course, then that student would get the same grade as a student who also showed mastery at the end of a course but also turned in homework on time and had perfect attendance.

Accuracy- One of Grading for Equity’s three pillars (the others are “bias resistance” and “motivation”). According to an article from the Harvard Graduate School of Education, accuracy should reflect a student’s academic performance and not take into account their behavior. In other words, the goal of accuracy in Grading for Equity is not measuring student subject mastery, but rather, to exclude supposed “bias”.

Also, it refers to grades reflecting a student’s current level of understanding rather than their cumulative grade. For example, if Sally takes a test today and scores a 90%, but for the rest of the semester she had very bad scores giving her a 60% her “accurate” grade in Grading for Equity is a 90% because that is her grade now.

Bias- Bias resistance is one of Grading for Equity’s three pillars (the other two are “accuracy” and “motivation”). Grading for Equity aims to implement grading practices that overcome “bias”, “Grading practices must counteract institutional biases that have historically rewarded students with privilege and punished those without, and also must protect student grades from our own implicit biases.” A criticism of Grading for Equity (and Equity in general) is that there is no defined outcome that indicates when bias has actually been eliminated in grading. According to equitable grading practices, teachers may exhibit bias when: offering extra credit, giving zeros for cheating, penalizing late work, and docking students for poor attendance or classroom behavior.

Motivation- Motivation is another of Grading for Equity’s three pillars (the others are “bias resistance” and “accuracy”.) Equitable grading seeks to grow intrinsic motivation, “Equitable grading builds intrinsic motivation, empowering students with self-regulation and ownership over their learning. For example, we can teach students that doing homework is important not because the teacher awards 10 points for completing it but because the homework is designed to help them learn—a means-end relationship that is borne out on the summative assessment.” However, as we see with the other definitions, “equitable grading” robs students of opportunities to increase their grade through hard work, or experience consequences of not studying.

Standards-Based Grading- Sometimes shortened to SBG, standards-based grading measures a student’s progress toward specific learning objectives. This contrasts with traditional grading, which typically measures a percentage of work completed as well as assessments. A notable difference, as seen in the screenshot below, is that Traditional Grading is measurable, based on the overall percentage a student got correct on assignments throughout the quarter or semester. The SBG grading reflects teachers assigning points based on their assessment of a student and that assessment does not include homework completion, participation or any other work habits. The grade is only reflective of their mastery of the subject as shown on formative and summative assessments.

Rolling gradebook- A rolling gradebook includes all assignments and tests from the semester or year. A quarterly gradebook includes only those from the quarter, so each quarter a student “starts over”. Indeed, this gives them a new opportunity to succeed, however, it does little to reinforce study skills and the consequences, or benefits of consistent studying.

Summative Assessments- Assessments conducted at the end of a learning period to evaluate students’ overall understanding and mastery of the material. Equitable grading practices, like those implemented in Portland Public Schools in Oregon, calls on teachers to “base grades on summative assessments, instead of classwork, homework, formative assessments.”

Context- In Equitable Grading, context refers to a student’s particular circumstance when giving them a grade. It may include socioeconomic factors, cultural background, and learning styles. The goal of including “context” into equitable grading is “bias reduction”. One example of where this comes up is encouraging teachers not to count homework as part of a grade. A 2019 Harvard Graduate School of Education article states, “… homework is often a filter for privilege, that students who have resources at home, whether they be internet access, or caregivers who have a college education or who have time to help them… those students are more likely to complete homework compared to the students who don’t have those resources. When we include a student’s performance on homework in the grade, we are rewarding students who have those resources and punishing those who don’t.”

Mastery- Traditionally, mastery means that a student understands a subject and can correctly answer test questions or explain a subject to their teacher or peers. However, Grading for Equity has turned “mastery” on its head to refer to a students’ subject mastery at a specific point in time. This means that instead of a student’s grade reflecting their performance throughout the semester, it only reflects a point in time. As such, previous quiz and homework grades, good or bad, are irrelevant. It is also referred to as competency-based.

Racial Disparities– Schools will implement Grading for Equity when racial disparities appear in student academic outcomes. For example, if the average test score for white students is 90 and the average test score for black students is 85, that is a racial disparity. Grading for Equity attempts to “correct” this by having all races of students end up at the same outcome. You’ll also hear this referred to as “narrowing the gap” or “closing the achievement gap.” (We want ALL students to succeed so of course we want to narrow and close these gaps—but not by lowering the bar or engineering a preferred outcome in the name of “equity.”)

Culturally Responsive Teaching (CRT)- This educational approach emphasizes the importance of integrating students’ cultural backgrounds and experiences into the learning environment, including grading practices. This sounds like a good thing but often manifests itself in practices like affinity groups that separate students based on race and having students acknowledge their unconscious racial biases. Grading for Equity falls under the umbrella of Culturally Responsive Teaching.

TITLE IX RULES AND PROCEDURE

HERE’S WHAT CHANGED UNDER THE NEW TITLE IX RULES FOR K-12 SCHOOLS

On May 6, 2020, the United States Department of Education issued final regulations under Title IX governing sexual harassment in an educational setting. The new rules, which will become effective on August 14, 2020, carry the force of law and make significant changes to the Department’s former recommendations and guidance regarding how schools carry out proceedings in response to sexual harassment claims. However, the Department of Education will not enforce these new regulations retroactively.[1]

Although the unofficial copy of the new regulations is 2,033 pages long, the following represent some of the most significant requirements that apply to elementary and secondary schools:[2]

Definition of “sexual harassment.” The new regulations limit a school’s Title IX process to “sexual harassment” as defined in the regulations. “Sexual harassment” includes the following three types of conduct: 1) quid pro quo harassment by a school’s employee on the basis of sex (i.e., school employee conditions educational benefits on partaking in unwelcome sexual conduct); 2) unwelcome conduct on the basis of sex that a reasonable person would find so severe, persuasive, and objectively offensive that it denies a person equal educational access; and 3) any instances of sexual assault as defined in the Clery Act, dating violence, domestic violence, or stalking as defined in the Violence Against Women Act.

The term “objectively offensive” was not used to define “sexual harassment” under the prior Title IX guidance. Moreover, the new regulations require that these elements be evaluated under the “reasonable person” standard.

Conduct that does not fall under the new definition of “sexual harassment” cannot be addressed under a school’s Title IX process. This is true regardless of whether the conduct meets the school’s definition of sexual harassment. To handle this change, schools should develop parallel procedures to address sexual misconduct that violates their own codes but does not constitute “sexual harassment” under Title IX.

Location of sexual harassment. The new regulations explicitly define the scope of schools’ responsibilities to respond to complaints of sexual harassment. Specifically, schools must only respond to allegations of sexual harassment against a person in the United States. Furthermore, the alleged sexual harassment must have occurred in “locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurs.” If an alleged act of sexual harassment occurred off campus, a school need only respond if the location is in use by a school-sanctioned student or institution organization (i.e., athletic facilities).

Under the new regulations, a student may not file a complaint against another student or a faculty member at a school where the student does not participate in an educational program. Moreover, the new regulations do not extend Title IX protection to students studying abroad. Should schools wish to address and discipline sexual harassment occurring in study abroad programs, they should develop a disciplinary process outside of Title IX.

3) Schools must only investigate formal complaints under Title IX. Schools are only obligated to investigate formal complaints brought to the attention of officials who possess authority to take corrective action. A formal complaint is one filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment.

For elementary and secondary schools, all school employees possess authority to take corrective action; therefore, formal complaints may be brought to any school employee. However, when a complaint is not brought to a person empowered to take action (i.e., a school employee for elementary and secondary schools), schools must follow various mandated response obligations, such as offering and informing the complainant of support measures. Schools may address all allegations in an informal complaint pursuant to their own code of conduct and outside of the Title IX process.

Schools must designate an employee to coordinate their efforts to comply with Title IX (“Title IX Coordinator”). Schools must notify students, employees, applicants for admission and employment, parents or legal guardians of primary and secondary school students, and all unions of the name or title, office address, e-mail address, and telephone number of the Title IX Coordinator. Schools must also display the Title IX Coordinator’s contact information on their websites. Any person may report sex discrimination, including sexual harassment, to the Title IX Coordinator at any time.

Grievance Procedure. The new regulations provide the following detailed requirements for school grievance processes addressing sexual harassment:
- The grievance process must include reasonably prompt time frames for the conclusion of the grievance process and the filing/resolving of appeals. The grievance process must also allow for limited extensions of time for good cause with written notice to the Parties of the reasons for any extensions.
- Investigators and Title IX Coordinators may not be biased toward either party.
- All accused respondents are presumed innocent until the conclusion of the grievance process. However, the school must describe the range of possible disciplinary sanctions that it may implement following a determination of responsibility.
- Schools must conduct a threat assessment before removing an accused student from campus pending a decision in a Title IX case. Schools must also create a process for the accused student to immediately challenge his or her removal from campus.
- Schools must declare what evidentiary standard they are using to evaluate all Title IX complaints. (See, infra, Section 5.) Schools must use the same evidentiary standard for all Title IX cases.
- Prior to any formal interview regarding a sexual-harassment complaint, schools must send a notice of written allegations to the parties. Such notice must include, “the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment…, and the date and location of the alleged incident, if known.” The notice must also include a statement that the accused is presumed not responsible and that the parties may have an advisor of their choice (who may be an attorney) to inspect and review all evidence.
- Schools may no longer use a “single investigator” model to investigate, adjudicate, and issue disciplinary sanctions against students of faculty in Title IX cases. Instead, the new regulations require the following three separate officials to work in coordination to handle Title IX complaints: 1.) a Title IX Coordinator who receives reports of sexual harassment (see, supra, Section 3), 2) an investigator who gathers facts and interviews parties and witnesses; and 3) a decision-maker who determines sanctions and remedies.
- Schools may dismiss formal complaints upon the complainant’s request. Schools may also dismiss formal complaints if the respondent is no longer a student or employee at the school.
- Parties must have equal opportunity to present witnesses, including fact and expert witnesses. Parties must also have equal opportunity to present inculpatory and exculpatory evidence.
- Parties must have equal opportunity to review evidence before any investigative report is finalized, and to respond in writing to the evidence. The grievance process must protect all legally recognized privileged information unless such privilege is waived.
- Parties must have equal opportunities to present evidence during any grievance proceedings. Schools must provide advisors to students who do not have an advisor at all grievance proceedings.
- Schools must create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior any determination regarding responsibility, provide the report to each party and the party’s advisor, if any. The report may be provided in an electronic format or a as hard copy for the party and/or his or her advisor’- review and written response.
- After sending the investigative report, decision makers must afford each party the opportunity to submit written, relevant questions that the party wants asked of any other party or witness; provide each party with the answers to all questions asked; and allow for additional, limited follow-up questions from each party.
- Schools may, but need not, provide for a hearing. (See, infra, Section 10.)
- The decision-maker must issue a final, written determination regarding responsibility. (See, infra, Section 6.)
- Remedies must be designed to restore or preserve equal access to the school’s educational program or activity.
- The Title IX Coordinator is responsible for implementation of any remedies.
Evidentiary Standard for identifying sexual harassment. The new regulations require schools to presume that individuals accused of sexual harassment are innocent prior to the school’s investigative and decision-making process. Schools may now use the traditional “preponderance of the evidence” standard or the higher “clear and convincing” standard to determine guilt in Title IX cases. However, schools must declare which standard they are using, and they must use the same standard to assess responsibility for all Title IX cases.
Determination regarding responsibility. The decision-makers must issue a final, written decision regarding responsibility. This written decision may be reached only after applying the school’s chosen evidentiary standard. (See, supra, Section 5.) The written decision must include the following:
- Identification of the allegations potentially constituting sexual harassment;
- A description of all procedural steps taken from when the school received the formal complaint through its issuance of the written decision. Such description should include all notices sent to the parties, any interviews with parties and witnesses, all site visits, all methods used to gather evidence, and any hearings the school held;
- Findings of facts to support the decision;
- Conclusions regarding the application of the school’s code of conduct to the facts;
- A statement of, and rationale for, the conclusion as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the school imposes on the respondent, and whether remedies designed to restore or preserve equal access to the school’s education program or activity will be provided by the school to the complainant; and
- The school’s procedures and permissible bases for the complainant and respondent to appeal.
Mandatory Appellate Procedure. Schools must offer both parties a chance to appeal from a determination regarding responsibility, including from the institution’s dismissal of a formal complaint. A school’s grievance process must include the procedures and permissible bases for either party to appeal. Such appeals may be based on the following: prejudicial procedural irregularities (i.e., irregularities that affected the outcome of the matter), newly discovered evidence that could affect the outcome of the matter, and/or conflict(s) of interest or bias by Title IX personnel that affected the outcome of the matter. Other bases for appeal are allowed if they are provided equally to both parties.

Schools must notify the respondent(s) when an appeal is filed. Both parties must be given a reasonable time to submit a written statement in support of, or opposing, the written decision. The appellate decision maker(s) must issue a new written decision describing the results of any appeals and the rationales for such results. Such written decision must be simultaneously provided to both parties.

Schools must also ensure that the decision-maker(s) for any appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator.

Complainant supportive requirements. The new regulations require schools to allow complainants to make decisions about how schools respond to incidents of sexual harassment. The regulations also require schools to offer supportive measures to complainants, such as the opportunity to changes classes or dorm assignments and the opportunity to pursue no-contact orders. A school’s grievance process must describe the supportive measures available to complaints.
“Deliberate indifference” standard for school liability. The Department’s Office for Civil Rights may not find a school legally culpable for mishandling sexual harassment accusations under Title IX unless it finds that the institution was “deliberately indifferent” in carrying out mandates to support victims and in fairly investigating complaints. The regulations define “deliberately indifferent” as “clearly unreasonable in light of known circumstances.” The “deliberately indifferent” standard was previously used by courts to determine when a school could be sued for money damages arising out of its failure to address sexual harassment. Based on such caselaw, the “deliberately indifferent” standard is difficult to show.

The new regulations require Title IX Coordinators to promptly contact the complainant confidentially to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint.

The new regulations also incorporate an “actual knowledge” prong to the “deliberate indifference” standard. Knowledge and a duty to act are attributed to a school only when notice of the sexual harassment was provided to the institution’s Title IX Coordinator, any institution official with authority to institute corrective measures, or to any employee of an elementary or secondary school.

Differing regulations for postsecondary schools. Unlike the requirements for elementary and secondary schools, postsecondary schools must hold a live hearing as part of their Title IX grievance process. At such live hearing, parties must be allowed to cross-examine witnesses and any evidence from a witness who is not subject to cross-examination will not be considered by the decision-maker(s). Additionally, unlike elementary and secondary schools, postsecondary schools need only respond to a Title IX complaint if the complaint is brought to the Title IX Coordinators.

[1] Federal agencies authorized by statute to promulgate rules may only create rules with retroactive effect where the authorizing statute has expressly granted such authority. (See 5 U.S.C. § 551; Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) [“Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.”].)

[2] The terms “school” and “schools” as used in this memorandum refer to elementary and secondary schools.