The law now defines sexual harassment broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize the equal access to education that Title IX is designed to protect: (1) Any instance of quid pro quo harassment by a school's employee; (2) any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; (3) any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
Education Program or Activity
The Title IX statute applies to persons in the United States with respect to education programs or activities that receive Federal financial assistance. Under the new law, schools must respond when sexual harassment occurs in the school’s education program or activity, against a person in the United States.
The Title IX statute and existing regulations contain broad definitions of a school’s “program or activity” and the Department will continue to look to these definitions for the scope of a school’s education program or activity. Education program or activity includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred.
Title IX applies to all of a school’s education programs or activities, whether such programs or activities occur on-campus or off-campus. A school may address sexual harassment affecting its students or employees that falls outside Title IX’s jurisdiction in any manner the school chooses, including providing supportive measures or pursuing discipline.
The new rules require a K-12 school to respond whenever any employee has notice of sexual harassment, including allegations of sexual harassment. Texas law also require all K-12 employees to be mandatory reporters of child abuse. Notice to a Title IX Coordinator, or to an official with authority to institute corrective measures on the recipient's behalf, charges a school with actual knowledge and triggers the school's response obligations.
The new law defines “supportive measures” as individualized services reasonably available that are non-punitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.
The law evaluates a school’s selection of supportive measures and remedies based on what is not clearly unreasonable in light of the known circumstances, and does not second guess a school’s disciplinary decisions, but requires the school to offer supportive measures, and provide remedies to a complainant whenever a respondent is found responsible.
The new law defines “complainant” as an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
This clarifies that any third party as well as the complainant may report sexual harassment.
While parents and guardians do not become complainants (or respondents), the law expressly recognizes the legal rights of parents and guardians to act on behalf of parties (including by filing formal complaints) in Title IX matters.
The new law defines “respondent” as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
The new law defines “formal complaint” as a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment and states:
At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the school with which the formal complaint is filed.
A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator under the law, and by any additional method designated by the school.
The phrase “document filed by a complainant” means a document or electronic submission (such as by e-mail or through an online portal provided for this purpose by the school) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.
Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or a party during a grievance process, and must comply with requirements for Title IX personnel to be free from conflicts and bias.
Preponderance of the Evidence
The law requires the school’s policy to state the standard of evidence applicable to determine responsibility. El Paso ISD has decided that the standard of evidence applicable is the preponderance of the evidence standard. The law requires that we apply the same standard of evidence for all formal complaints of sexual harassment whether the respondent is a student or an employee.
"Preponderance of the Evidence" means the greater weight of the evidence required to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.