09.11.2020

Since the new Title IX regulations^[1] took effect on August 14, 2020, as highlighted in AALRR’s previous Alert, educational institutions that receive federal financial assistance have been focused on updating their policies and procedures in order to be compliant with the new regulations when addressing complaints of sexual harassment, sexual assault, dating/domestic violence and stalking on the basis of sex.

After the Final Title IX Rule was announced in May of this year, the Office for Civil Rights (“OCR”) of the U.S. Department of Education received numerous questions about the regulations’ impact on educational institutions, including the effective date of the Final Rule, Title IX Coordinators and other personnel issues, the definition of “sexual harassment,” the filing of a “formal complaint,” and conducting hearings.  In response, OCR issued technical assistance on September 4, 2020 through its Questions and Answers Regarding the Department’s Final Title IX Rule (“Q&A on Final Title IX Rule”).

This Alert will primarily focus on the differences between the definition of “sexual harassment” in the Final Title IX Rule and California law and how educational institutions should address these types of complaints in a manner that complies with their concurrent legal obligations under federal and state laws.   

Definition of Sexual Harassment

The new Title IX regulations make a significant change to the definition of “sexual harassment” by defining it more narrowly and in a manner deemed by the U.S. Department of Education as being more aligned with two U.S. Supreme Court decisions.^[2]  Specifically, the new Title IX regulations define sexual harassment as follows: 

Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:

(1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;

(2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or

(3) “Sexual assault” as defined in 20 U.S.C. § 1092(f)(6)(A)(v) (the Clery Act), “dating violence” as defined in 34 U.S.C. § 12291(a)(10), “domestic violence” as defined in 34 U.S.C. § 12291(a)(8), or “stalking” as defined in 34 U.S.C. § 12291(a)(30)(the Violence Against Women Act).^[3]

Under state law, Section 212.5 of the California Education Code, which is applicable to elementary, secondary, and postsecondary educational institutions,^[4] defines “sexual harassment” as follows:

“Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

(a)  Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.

(b)  Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.

(c)  The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.

(d)  Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.^[5]

A key difference between federal and state law with regard to the definition of “sexual harassment” is identified when one compares the Title IX definition with California’s regulations addressing “sexual harassment” in the educational setting under Section 4916 of Title 5 of the California Code of Regulations (applicable to elementary and secondary programs receiving state or federal financial assistance). 

Section 4916 of Title 5 defines “sexual harassment” as conduct that is “sufficiently severe, persistent, pervasive or objectively offensive, so as to create a hostile or abusive educational or working environment or to limit the individual's ability to participate in or benefit from an education program or activity.”^[6]  Under the new Title IX regulations, however, to constitute “sexual harassment,” conduct must be found to be “severe, pervasive, and objectively offensive.”^[7] 

Therefore, under these different definitions, an educational institution may be faced with situations where, based on the evidence, the harassing conduct does not violate Title IX, but it does violate California law.  This highlights that an educational institution must be mindful that it has concurrent obligations to comply with both federal and state anti-discrimination laws, including, but not limited to, those laws that address sexual harassment. 

Even if the Title IX Coordinator determines after reviewing the facts of a particular complaint that the allegations do not satisfy the definition of “sexual harassment” under the new Title IX regulations, the inquiry does not end there.  An educational institution must be vigilant in determining whether the same factual allegations are potentially actionable under California law (under its broader definition of “sexual harassment”) or under the educational institution’s own policies related to an employee or student code of conduct that would require it to take affirmative steps to investigate the complaint and, where determined necessary, stop the complained-of conduct and ensure that such conduct does not recur. 

Indeed, the U.S. Department of Education’s responses to public comments included in the Final Title IX Rule make this very point clear as illustrated below:

• “[S]ome State laws may require recipients to provide additional protections for both complainants and respondents that exceed these final regulations.”^[8]
• “A recipient may address conduct that Title IX and these final regulations do not require a recipient to address, pursuant to its own code of conduct, including where the recipient is obligated to address the conduct under a State law.”^[9]
• “If a State law requires a recipient to investigate and address conduct that these final regulations do not address, then these final regulations do not prevent a recipient from doing so.”^[10]

Additionally, the new Title IX regulations permit an educational institution to use the very same Title IX grievance process under 34 C.F.R. §106.45 and the personnel in their Title IX Team to investigate sexual harassment allegations that fall both inside and outside the scope of Title IX “sexual harassment” complaints.  For example, a Title IX Coordinator or Title IX Decision-Maker might determine that the allegations set forth in a complaint do not meet the definition of “sexual harassment” under the Final Title IX Rule, but, nevertheless, the educational institution may continue to use the established grievance process to investigate whether the alleged conduct supports a finding of “sexual harassment” under California law or its own code of conduct policies. See Question 3 of Q&A on Final Title IX Rule.  This is permissible.  We also note that the new Title IX regulations do not prohibit an educational institution from leaving its Title IX complaint grievance process after a Title IX matter is properly dismissed under 34 C.F.R. §106.45(b)(3) and continuing to investigate and reach a decision about sexual harassment under California law by using an established code of conduct process or the process under the Uniform Complaint Procedures. 

AALRR continues to monitor key issues raised by the new Title IX regulations that impact educational institutions in California, related litigation, and OCR technical assistance and will continue to provide periodic Alerts to keep you apprised of the latest developments in this area of critical importance.  If you need legal advice with regard to your compliance with the Final Title IX Rule, please contact one of the authors of this Alert.

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^[1] Please note that “new Title IX regulations” and “Final Title IX Rule” are used interchangeably in this Alert.

^[2] See Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998); and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

^[3] 34 C.F.R. § 106.30 (emphasis added).  See also Summary of Major Provisions of the Department of Education’s Title IX Final Rule, U.S. Department of Education, available at: https://www2.ed.gov/about/offices/list/ocr/docs/titleix-summary.pdf.

^[4] Cal. Educ. Code § 66262.5 (“Sexual harassment” in the Equity in Higher Education Act has the same meaning as defined in Section 212.5).

^[5] Cal. Educ. Code § 212.5.

^[6] Cal. Code. Regs, tit. 5, § 4916 (emphasis added).

^[7] 34 C.F.R. § 106.30 (emphasis added).  Another difference can be found by reviewing the general definition of “harassment” set forth in Section 4910 of Title 5 of the California Code of Regulations, which defines “harassment” as “conduct based upon a protected status that is severe or pervasive, which unreasonably disrupts an individual’s educational or work environment or that creates a hostile educational or work environment.” Cal. Code Regs. tit. 5,  § 4910 (emphasis added).

^[8]  See Final Rule at 1567.

^[9]  See Final Rule at 1578.

^[10] See Final Rule at 1591.

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