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Title IX of the Education Amendments of 1972 is a federal statute proscribing gender discrimination in educational programs. But the 37-word statute makes no mention of “sexual harassment.” For years, the Department of Education (DOE) has issued piecemeal guidance on how schools should address sexual harassment—a form of gender discrimination—pursuant to Title IX but these guidance documents were not legally binding. On May 6, 2020, pursuant to its rulemaking authority granted by Congress, DOE issued final regulations advising our nation’s schools about when they must respond to reports of sexual harassment and what that response must look like.

During the 60-day notice and comment period, DOE received over 124,000 comments, some of which voiced concerns about deviating from the status quo citing safety concerns and decreased reporting, while others believed campus tribunals were being unfairly administered. Placed in an unenviable position, DOE sought to strike a balance by integrating the bedrock principles of due process found within our legal system while also providing continuous support to complainants. It is impossible to address all aspects of the final regulations, which span over 2,000 pages, so this article merely highlights DOE’s most noteworthy changes.

Definition of Sexual Harassment

The final regulations define “sexual harassment” as one or more of the following: (i) quid pro quo harassment; (ii) unwelcome conduct that is “severe, pervasive and objectively offensive”; or (iii) sexual assault, dating violence, domestic violence or stalking. 34 C.F.R. §106.30 (citations throughout beginning with “§” reference CFR provisions to be published on July 1, 2020). Unwelcome conduct should be measured by a reasonable person standard. Id. The Department refers to the definitions in the Clery Act and the Violence Against Women Act to achieve uniformity with existing federal statutes. Id.

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