LJSL LEGAL ALERT: New Federal Education Regulations

On May 6, 2020, the U.S. Department of Education published an unofficial set of regulations that impact Title IX and will have a number of implications for higher education and K-12 systems. There are over 2,000 pages in the new Title IX regulations. For K-12 school systems, the new regulations, which go into effect on August 12, 2020, will change the definition of sexual harassment, the manner in which incidents are reported, to whom incidents are reported, the standard of proof, and more.

For higher education institutions, the regulations introduce a new definition for sexual harassment, remove the number of mandatory reporters, reduce the scope of reporting for off-campus locations, allow for cross-examinations at hearings, and require each side of a complaint to have an adviser present at hearings to pose questions during hearings.

While the regulations could not have been published at a more inopportune time given the coronavirus pandemic, the USDOE has indicated that OCR enforcement activity will not be delayed. Institutions will need to review current policies and procedures related to Title IX and begin to implement changes, distribute appropriate communications to school or higher education constituencies, and commence training programs consistent with the new regulations.

Contact Samuel D. Kerr with questions:

(605) 342-2592
skerr@lynnjackson.com909 Saint Joseph Street, Suite 800
Rapid City, SD 57701

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Gun Safety in Schools

A new report from the nation’s largest education unions and the nation’s largest gun safety organization indicates that arming school district staff “increases risk and is overall an ineffective solution to gun violence.” The report comes out amid a previous White House report that takes an opposite view concerning the arming of school staff. This report presents a plan “that combines carefully tailored gun safety policies with school-based intervention strategies.”

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USDE Issues New Title IX Rules

Higher Education Alert!

Last Friday the United States Department of Education released proposed new federal regulations in connection with Title IX, the 1972 civil rights legislation designed to prohibit sex discrimination in federally funded educational programs. The new rules are intended to clarify how colleges and universities receiving federal funding are to handle instances of sexual misconduct. In 2017, the Department withdrew guidance put in place by the Obama administration in 2011 and 2014 through “Dear Colleague Letters.” In place of that prior guidance, the Department had issued a Dear Colleague Letter in September 2017, along with a Q&A.

The new regulations are not without controversy. For example, new rules would allow an institution to set its own evidentiary standard rather than the “by a preponderance of the evidence” standard established in 2011. In addition, institutions would be required to allow for cross-examination of students during institutional proceedings.

Once published in the Federal Registry, on open comment period will commence for 60 days. The new regulations will likely take effect in July 2019. You may access the USDOE’s Proposed Title Regulation Fact Sheet here.

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