On May 6, 2020, the United States Department of Education (“Department of Education”) released its Final Rule updating Title IX regulations and addressing sexual misconduct in schools. The Final Rule codifies sexual harassment as unlawful sex discrimination under Title IX.  Although the Department of Education had previously addressed sexual harassment through Dear Colleague Letters and other guidance documents, such documents are not legally binding. The Final Rule updates regulations to define sexual harassment to include quid pro quo harassment; unwelcome conduct that is severe, pervasive, and objectionably offensive; and sexual assault, dating violence, domestic violence, or stalking.

The Final Rule also includes the following significant updates:

• Schools must respond promptly if they have “actual knowledge” of sexual harassment. The Final Rule defines actual knowledge to include notice in person or via email, phone, or mail to a Title IX Coordinator or any elementary or secondary school employee.
• Schools are required to investigate sexual harassment that occurred at an event or location over which the school exercised substantial control. This includes off-campus housing or events controlled by a student organization recognized by the school, such as fraternities or sororities.
• A school’s response to a complaint of sexual harassment must not be “clearly unreasonable in light of the known circumstances.”
• Schools must offer supportive measures to every complainant, even if the complainant chooses to not file a formal complaint.
• Schools are required to follow a specific grievance process designed to ensure due process, as well as a reliable determination. Schools may not issue discipline to an accused student without first following the grievance process.

All of the Department of Education’s updates to current Title IX regulations are outlined in the Final Rule. The updated regulations take effect on August 14, 2020, just in time for the new school year.