U.S. Education Department releases final Title IX regulations

Potential impacts of the new rule for students with disabilities
By: | May 6, 2020

Schools must “respond meaningfully” to every known report of sexual harassment under final Title IX regulations released today by the U.S. Education Department.

The new rule has implications for students with disabilities, who can file failure to protect claims under Title IX against school districts for monetary damages.

Title IX is a federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding. The final rule defines sexual harassment as “unwelcome conduct … where the seriousness (determined by a reasonable person to be so severe, pervasive, objectively offensive, that it negatively impacts equal access) jeopardizes educational opportunities.”

The issue of students’ right to access an education free from sexual discrimination and harassment has continued to expand into the K-12 setting, including in situations that involve students with disabilities asserting failure to protect claims. And, some courts have held that Title IX cases do not require exhaustion of administrative remedies under the IDEA.

Under the final rule, effective Aug. 14, schools must provide due process protections for students, including a presumption of innocence throughout the grievance process. The regulations also require a decision-maker separate from the Title IX coordinator or investigator, and the right to cross-examination, subject to “rape shield” protections. In K-12, it can be written; on the college level, this cross-examination must be live.

“Actual knowledge” of an allegation under the new rule includes notice to any elementary or secondary school employee; and states that any person (e.g., the alleged victim or any third party) may report to a Title IX coordinator in person or by email, phone or mail.

Learn the top nine things every individual involved in the special education process should know about Title IX and how they can impact compliance during the LRP’s virtual National Institute® on Legal Issues of Educating Individuals with Disabilities. Attorney Bobby Truhe presents the session Going 9 for IX: 9 Things Anyone Involved in Special Education Must Know about Title IX.