New regulations released last week by the U.S. Department of Education will change how South Dakota's K-12 schools respond to students' reports of sexual assault and harassment, requiring administrators to more formally investigate claims and share the evidence with accused students and their parents.
The long-awaited rules, which apply to colleges as well as K-12 schools, mark the first time the DOE has established regulations under Title IX detailing what schools must do when dealing with sexual assault cases involving students.
Here are 11 key changes that you need to know about the new Title IX rules.
Key Change #1 - "Actual Knowledge"
Schools are required to respond when they have "actual knowledge" of a sexual harassment complaint, which can include a report to any employee of an elementary or secondary school. That's compared to the Obama administration guidance, which held schools responsible for incidents they "reasonably should" have been aware.
Key Change #2 - School District's "Program or Activity"
Schools must respond when harassment occurs "in the school's education program or activity." The new rules expand the definition of "program or activity" to include "locations, events, or circumstances over which the school exercises substantial control over both the respondent and the context in which the sexual harassment occurs."
Key Change #3 - Parental Participation
The new rules allow parents or guardians of K-12 students to file complaints on their behalf, and requires parental notification of complaints against their children.
Key Change #4 - No Hearing Requirement
Unlike colleges and universities, elementary and secondary schools are not required to hold hearings on student complaints.
Key Change #5 - "Supportive Measures"
The rules require schools to provide "supportive measures" to students, with or without a formal complaint. That might include providing counseling or changing class schedules to avoid sharing a classroom with the accused.
Key Change #6 - Definition of "Sexual Harassment"
The new rules define sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex.
Key Change #7 - Response of School
The new rules protect K-12 students by requiring elementary and secondary schools to respond promptly when any school employee has notice of sexual harassment.
Key Change #8 - Use of Technology
The new rules give schools flexibility to use technology to conduct Title IX investigations and hearings remotely.
Key Change #9 - First Amendment Protections
The new rules protect students and faculty by prohibiting schools from using Title IX in a way that deprives students and faculty of rights guaranteed by the First Amendment.
Key Change #10 - Standard of Proof
The new rules require schools to select one of two standards of evidence - the preponderance of the evidence standard or the clear and convincing evidence standard - and to apply the selected standard evenly to proceedings for all students and employees, including faculty.
Key Change #11 - Additional Protections
The new rules provide "rape shield" protections and ensure survivors are not required to divulge any medical, psychological, or similar privileged records
A summary of the Final Rules can be found by clicking here.
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