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Title IX Proposed Rule Changes

What situations would initiate a school’s legal responsibility to address sexual harassment or abuse?

In considering the purview of Title IX policies, a common question for schools might be, “Am I responsible for doing something about that particular situation?” The complicated dynamics of sexual harassment and assault mean that an incident happening outside of school activities could still impact a student’s access to educational opportunities, which is the ultimate focus of Title IX. Rules on Title IX must therefore determine what is within the scope of a school’s responsibility, which can be a balancing act between concern for protecting students’ access to education and concern over putting too much responsibility on the school through too broad of a scope for Title IX.

Under previous guidance, there was an obligation for schools to respond even if the initial sexual harassment occurred outside the school’s education program or activity if there was potential impact to a student’s education and engagement with school activities.

Under the new proposed regulations, institutions are required to respond only when they have “actual knowledge of sexual harassment in an education program or activity.” This would include activities sponsored by recognized Greek life organizations and athletics programs. However, an assault happening in off-campus housing or a local bar, for example, would no longer fall under the school’s responsibility, regardless of the potential impact on a student’s education.

The new proposed rule also specifies harassment “against a person in the United States.” This would limit the school’s responsibility to address anything happening in a study abroad program.

Though the focus of this blog series is on higher education, it’s important to also consider the potential impact in K-12 schools. It might be of particular concern to consider sexual harassment or abuse happening to a student outside of school activities (e.g. at a party, online, at a friend’s house), but the student potentially being unable able to seek recourse through their school, despite impacts on their education. (It is important to note that, outside of Title IX requirements, a school can still implement policies for preventing and addressing situations of harassment or abuse in order to protect students and employees.)

SCCADVASA wants to thank NASPA and the other national organizations who have provided briefings on the proposed Title IX rule changes that contributed to our content. We also want to recognize the campus and community-based advocates who continue to support students throughout, and regardless of, policy changes.

For further questions about proposed Title IX changes, please contact SCCADVASA at 803-256-2900.

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