William J. Zee & Raymond A. Durkin Jr.

On November 3, 2020, Pennsylvania Governor Tom Wolf signed into law Act 110, which took effect on January 1, 2020.[1]  Act 110 amended the Pennsylvania Public School Code to require public school entities to take certain measures against any student who is convicted or adjudicated delinquent of sexual assault upon another student who is enrolled in the same public school entity.  Act 110 is a Pennsylvania statutory amendment which comes on the heels of the U.S. Department of Education’s final regulations regarding sexual harassment under Title IX of the Education Amendments of 1972 (the “Final Regulations”), which were issued on May 7, 2020 with an implementation deadline of August 14, 2020.[2]  While Act 110 and the Final Regulations are not in conflict, Pennsylvania public school entities must implement various policies and protocols to comply with both of these statutory and regulatory mandates.   

Act 110: Overview

Discipline Requirements

Under Act 110, if a school student enrolled in a public school entity[3] is convicted or adjudicated delinquent[4] of committing sexual assault[5] upon another student enrolled in the same public school entity, regardless of where the act or conducting leading to the conviction or adjudication occurred, the public school entity shall, pursuant to applicable law and regulations, be required to take one of the following actions:

1. Expel the convicted or adjudicated student;

2. Transfer the convicted or adjudicated student to an alternative education program; or

3. Reassign the convicted or adjudicated student to another school or educational program within the public school entity.[6]

Because a public school entity is required to take one of the above actions against any student who is adjudicated delinquent of committing sexual assault (subject to the exceptions discussed below), it is recommended that all public school entities designate an individual, such as the Superintendent or his or her designee, who is authorized to take prompt action in accordance with Act 110 and other public school entity policies upon report of a conviction or adjudication of sexual assault upon another student enrolled in the public school entity.  

 

While a public school entity is required to take prompt action pursuant to Act 110 to either expel, transfer or reassign a student who is adjudicated delinquent of committing sexual assault against another student enrolled in the same public school entity,  if the convicted or adjudicated student has already been expelled, transferred or reassigned, or if the victim does not attend the same school, no additional action regarding expulsion, transfer or reassignment is required by the public school entity.[7]  Although no further action is required, the public school entity maintains the authority to make an alternative assignment or provide alternative educational services during or after an expulsion.[8]  Furthermore, a public school entity may return the student who is expelled, transferred or reassigned, to the student’s originally assigned school if either (i) the victim is no longer enrolled in the public school entity; or (ii) the conviction or adjudication has been reversed and is not pending appeal.[9]

 

Aside from either expelling, transferring or reassigning any convicted or adjudicated student, all public school entities must also ensure that the convicted or adjudicated student is not educated in the same school building, transported on the same school vehicle, or allowed to participate in the same school-sponsored activities at the same time as the victim.[10]  Thus, it is critical that all public school entities development a system to ensure that any victim is not inadvertently placed in one of the above settings with the convicted or adjudicated student.

Reporting Requirements

Act 110 requires any student convicted of sexual assault upon another student enrolled in the same public school entity to notify the public school entity of the conviction no later than seventy two (72) hours after the conviction.[11]  In addition, prior to admission to a public school entity, the parent, guardian or other person having control or charge of a student shall, upon registration, provide a sworn statement or affirmation stating whether the student was previously or is presently expelled under Act 110.[12]  Therefore, it is recommended that public school entities notify all students and parents of their reporting obligations under Act 110 and make a copy of the public school entity’s Act 110 policy available online to promote compliance with this affirmative duty to report.[13]

While Act 110 imposes an affirmative obligation on any convicted or adjudicated student and his or her parents or guardians to notify the public school entity, as a best practice all public school entities should also inform all members of the school community regarding Act 110 to ensure awareness and compliance.  If a student and/or his or her parent fails to report a conviction within 72 hours and another member of the school community becomes aware of this conviction, all members of the school community should be encouraged to come forward and report this conviction so that appropriate action may be taken.  Additionally, all public school entities should review any notifications received from the juvenile probation department so that appropriate action may be taken following notice of an adjudication of sexual assault.

Students with Disabilities

While Act 110 requires public school entities to either expel, transfer, or reassign a student convicted or adjudicated delinquent of sexual assault, special considerations apply to students with disabilities because public school entities are required to take all steps necessary to comply with the Individuals with Disabilities in Education Act (“IDEA”) prior to taking any of the aforementioned actions.[14]  If the student in question is subject to the IDEA, the public school entity first must make a manifestation determination prior to considering the exclusion of a student with a disability via a disciplinary change in placement such as a suspension or expulsion.[15]  If it is determined that the behavior resulting in a conviction or adjudication of sexual assault was a manifestation of the student’s disability, the public school entity may be prevented from taking certain actions under Act 110.  Furthermore, if it is determined that a convicted or adjudicated student who is subject to the IDEA may be moved to a new placement, the public school entity is still obligated under IDEA to ensure that the student receives a Free and Appropriate Public Education (“FAPE”) in his or her new placement.[16] This decision should be made in consultation with the convicted or adjudicated student’s IEP team, and such decision should consider all relevant issues regarding any new placement.

As an additional consideration, under the Family Educational Rights and Privacy Act (“FERPA”) and the IDEA, public school entities may not disclose to the victim that the convicted or adjudicated student has a disability.[17] This may pose problems for public school entities because the victim and his or her family may object to any determination that permits the convicted or adjudicated student to remain in the same building as the victim.

Differences Between Act 110 and Title IX

The primary distinction between Act 110 and Title IX is that Act 110 imposes requirements on a public school entity to take certain disciplinary actions against a student after he or she is convicted or adjudicated delinquent of committing sexual assault under the criminal justice system, regardless of the setting where the conduct resulting in a conviction or adjudication occurred.  Whereas, Title IX establishes internal grievance procedures intended to address allegations of sexual misconduct which occurred in certain educational settings (as discussed further below) where a school district student or employee is accused of sexual misconduct against another school district student or employee, thus triggering the entity’s obligations to address these accusations in a manner consistent with the published Title IX framework.  While alleged sexual misconduct reported in accordance with Title IX procedures may ultimately result in a conviction or adjudication of sexual assault under Act 110 if criminal charges are implicated (thus triggering expulsion, transfer or reassignment under ACT 110), Title IX has its own definition of actionable “sexual harassment” which applies to any internal disciplinary measures imposed by the school district.

Title IX: Overview

Title IX Sexual Harassment

Title IX protects individuals from discrimination based on sex in education programs or activities that receive Federal financial assistance, such as public school entities.  The foundational text of Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”[18]  The objective of Title IX is to preserve a complainant’s[19] equal educational access while “leaving recipients[20] discretion to make disciplinary decisions when a respondent is found responsible” for violating the school’s policy prohibiting sexual harassment.[21]   In addition, a major focus of the Final Regulations is to ensure that individuals who are responsible for committing acts of sexual harassment are appropriately disciplined while simultaneously preserving the due process rights of the accused.

Definitions of Title IX Sexual Harassment

The Final Regulations define sexual harassment as conduct on the basis of sex that satisfies one or more of the following:

1.                  Quid pro quo harassment - a school district employee conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct;

 

2.                  Hostile educational environment - unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive[22] that it effectively denies a person equal access to an education program or activity; or 

 

3.                  Sexual assault (including indecent assault and other state defined offenses), dating violence, domestic violence, or stalking/cyberstalking.[23]

While the Final Regulations set forth a specific definition of “sexual harassment” for purposes of Title IX, the Final Regulations also state that public school entities may prohibit and address conduct falling outside of the new definition under other disciplinary codes or policies. 

Title IX sexual harassment often overlaps with other types of misconduct (i.e. conduct that is sexual in nature, lude or obscene in a sexually explicit way that does not violate Title IX because it does not meet the regulatory definition of sexual harassment) that necessitates disciplinary sanctions, behavior modification interventions, or other responses by a public school entity to prevent future disruption, remedy individual harm, or promote or maintain a positive, non-discriminatory, or safe school community.  While such conduct may not rise to the level of Title IX sexual harassment, the Final Regulations specify that school districts may prohibit and address conduct falling outside of the new definition of sexual harassment under other policies regardless of whether a respondent is determined to be responsible for violating the Title IX policy.[24]

The Final Regulations also narrow the scope of the settings where public school entities must respond to alleged sexual harassment.  As set forth above under the definition of sexual harassment, public school entities must only respond to instances that occur within an “education program or activity” and against a person in the United States.[25]  An education program or activity includes the locations, events or circumstances over which the public school entity exercises substantial control as to both the respondent and the context in which the harassment occurs, including programs that occur on-campus or off-campus.[26]

In sum, for purposes of Title IX, a public school entity must dismiss a complainant’s complaint if the alleged conduct (i) fails not meet the statutory definition of sexual harassment; (ii) does not occur within an “educational program or activity;” or (iii) does not occur within the United States.  Nevertheless, as stated above, a public school entity is permitted to address such conduct under other disciplinary codes or policies it promulgates.

Actual Knowledge

Under the Final Regulations, “actual knowledge” is established by, among other things, witnessing or hearing about conduct that could constitute sexual harassment from the complainant or another third party, or receiving a written or verbal complaint of sexual harassment allegations.  While the Final Regulations specify that actual knowledge is only imputed to an organization if it is provided to the Title IX Coordinator or any official “who has the authority to institute corrective measures on behalf of the [public school entity], the Final Regulations clarify that notice to any “employee of an elementary and secondary school establishes “actual knowledge” for purposes of Title IX and triggers the organization’s response obligations.[27] Thus, it is critical to assure that all public school entity employees are aware that they have a responsibility to come forward and notify the Title IX Coordinator (as discussed below) in the event that they witness or hear about any potential instances of sexual harassment.

Under the Final Regulations, each public school entity must designate an individual known as the Title IX Coordinator to coordinate its efforts to comply with Title IX.[28]  Public school entities are required to notify all students, parents or legal guardians, employees, applicants for admission and employment, and unions of the Title IX Coordinator’s name/title, office address, e-mail address, and telephone number.[29]  As part of this notice requirement, public school entities must prominently display this required information on their websites. 

Any person may report instances of potential sexual harassment at any time, and by a wide variety of means (i.e. in person, by mail, by telephone, or by e-mail using the contact information listed for the Title IX Coordinator).[30]  As discussed above, if a district employee witnesses or hears about any potential instances of sexual harassment from any source, actual knowledge of potential Title IX harassment is imputed to the school district and thus it is essential that they promptly notify the Title IX Coordinator to enable this person to take appropriate action.  While the Final Regulations provide that reporting instances of potential sexual harassment may be done by virtually any means that results in the Title IX Coordinator receiving notice, it is recommended as a best practice that public school entities make a standard complaint form available and encourage any individual who is making such a report to utilize this form to aid the Title IX Coordinator in addressing the report.

Emergency Removal

At any time after a public school entity has actual knowledge of alleging sexual harassment, the public school entity may pursue emergency removal of the respondent arising from the underlying allegations under certain circumstances.[31] Emergency removal is justified when an individualized safety and risk analysis indicates there is an immediate threat to the physical health or safety of an individual.[32] In the event that an individual observes or is the victim of dangerous or criminal activity, this individual should call 911.

Deliberate Indifference

When a public school entity has actual knowledge of Title IX sexual harassment, the public school entity is required to respond promptly and in a manner that is not deliberately indifferent, meaning not clearly unreasonable in light of the known circumstances.[33]  Once actual knowledge is conveyed to the public school entity, in order to respond in a manner that is not “deliberately indifferent,” the Title IX Coordinator must promptly do the following:

1.                  contact the complainant confidentially to discuss the availability of supportive measures; consider the complainant’s wishes with respect to supportive measures, inform the complainant that supportive measures are available with or without filing a formal complaint, and explain to the complainant the process for filing a formal complaint; and

 

2.                  contact the respondent, who must also be offered supportive measures.[34]

Under the Final Regulations, supportive measures are defined as non-disciplinary, non-punitive individualized services that are appropriate and reasonably available, without fee or charge, to the claimant or respondent.[35]  Supportive measures should be tailored to the unique circumstances presented in each case.  Some examples of supportive measures include, but are not limited to, the following: (i) counseling; (ii) extensions of deadlines or other course-related adjustments; (iii) modifications of work or class schedules; (iv) campus escort services; (v) mutual restrictions on contact between the parties; (vi) leaves of absence; and (vii) increased security and monitoring of certain areas of the campus.[36]  Supportive measures must be offered to the claimant and respondent regardless of whether a formal complaint is filed. Such measures are designed to restore or preserve equal access to the public school entity’s educational program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties involved, or deter sexual harassment.[37]

Obligation to Investigate

The deliberate indifference standard also applies to a public school entity’s decision whether to investigate after a formal complaint is filed.  Under the Final Regulations, a “formal complaint” is “a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that [the public school entity] investigate the allegation of sexual harassment.”[38]  A claimant is not required to file a formal complaint, and the Final Regulations provide that the complainant’s wishes should be respected regarding the school’s decision to investigate unless the Title IX Coordinator determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances.[39]  However, once a formal complaint is filed, the public school entity must provide written notice of the allegations to the known parties and investigate and adjudicate the complaint using a grievance process that complies with the Final Regulations.

Grievance Process

As highlighted above, one of the major policy goals of the Final Regulations is to preserve the due process rights of the respondent in the context of Title IX investigations.  Thus, the Final Regulations prohibit a public school entity from disciplining a respondent prior to concluding the grievance process.

The Final Regulations grant public school entities with the discretion to determine whether the grievance process will utilize the preponderance of the evidence standard or the clear and convincing evidence standard to assess culpability.[40] The elected standard of evidence must be clearly set forth in the public school entity’s policies and the same standard must be applied to all formal complaints of sexual harassment (whether the respondent is a student or an employee).

Pursuant to the Final Regulations, from the outset of an investigation, a complainant should not be considered any more credible than a respondent and a respondent must be presumed not responsible until the conclusion of the grievance process.

The Final Regulations prescribe a consistent, transparent grievance process for resolving formal complaints of sexual harassment which must be conducted in a “reasonably prompt timeframe.”[41]  Any delays or extensions must be “temporary,” “limited,” and “for good cause,” and the parties must be notified regarding the cause of any delays or extensions.[42]

Under the Final Regulations, public school entities must send written notice to all parties of the allegations upon receipt of a formal complaint. The written notice must include, among other things, sufficient detail of the allegations (including the identities of the parties involved, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident) to enable the parties prepare for an initial interview.[43] The written notice must also inform the parties that they may have an advisor of their choice present (who may be, but need not be, an attorney) and that they have a right to inspect and review evidence obtained during the investigation.[44]

During the grievance process and when conducting the investigation, the public school entity must comply with the following procedural safeguards:

1.                  the burden of gathering evidence and burden of proof remains on public school entity and not on the parties;

2.                  the parties must be provided equal opportunity to present fact and expert witnesses and other inculpatory and exculpatory evidence;

3.                  the ability of the parties to discuss the allegations or gather evidence must not be restricted (e.g., no “gag orders”);

4.                  the parties must have the same opportunity to select an advisor of the party’s choice (who may be, but need not be, an attorney);

5.                  written notice of any investigative interviews, meetings, or hearings must be sent to the parties;

6.                  evidence directly related to the allegations, in electronic format or hard copy, must be sent to the parties and their advisors with at least 10 days for the parties to inspect, review, and respond to the evidence;

7.                  an investigative report that fairly summarizes relevant evidence, in electronic format or hard copy, must be sent to the parties and their advisors with at least 10 days for the parties to respond; and

8.                  conduct that does not meet the Final Rule’s definition of sexual harassment must be dismissed for purposes of Title IX (such dismissal does not preclude a public school entity from addressing the conduct in any manner the public school entity deems appropriate in accordance with other disciplinary codes or policies).[45]

Title IX Coordinator, Investigator, and Decisionmaker as Separate Roles

As an additional procedural safeguard, the Final Regulations require that public school entities designate three different officials to handle various functions within the Title IX complaint process.  The Title IX Coordinator is the designated official who receives reports of potential sexual harassment.  In addition to the Title IX Coordinator, the public school entity must also designate an investigator to gather facts and interview parties and witnesses and a decisionmaker to determine findings, and impose any sanctions or remedies for the parties.[46]

Live Hearings and Written Questions and Responses

The Final Regulations clarify that the grievance process established by a public school entity may, but need not, provide for a live hearing with cross-examination.[47]   Regardless of whether a public school entity elects to permit hearings as part of its grievance procedure, after the investigator sends the investigative report to the parties and before the decisionmaker reaches a determination regarding responsibility, the decisionmaker must afford each party the opportunity to submit written, relevant questions directed at the other party or witnesses, provide each party with the answers, and allow for additional, limited follow-up questions from each party.[48]

Dismissal

Public school entities may, in their discretion, dismiss a formal complaint or allegations therein if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the formal complaint or allegations therein, if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the public school entity from gathering sufficient evidence to reach a determination.[49]  However, a public school entity must dismiss a formal complaint if the alleged conduct does not constitute sexual assault under Title IX’s definition, or if the conduct did not occur in the public school entity’s education program or activity or did not occur against a person in the United States.[50]  Public school entities must give the parties written notice of any mandatory or discretionary dismissal which provides the reasons for such dismissal.[51]

Written Determination

The decisionmaker is required to issue a written determination regarding responsibility for sexual harassment which contains the allegations at issue and the procedural steps taken since the receipt of the formal complaint, findings of fact and conclusions about responsibility for each allegation, the rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant.[52]  The written determination must be sent to the parties simultaneously along with information about how to file an appeal.

Appeals

The Final Regulations mandate that a public school entity must offer both parties an appeal from a determination regarding responsibility or from a public school entity’s dismissal of a formal complaint or any allegations therein, solely on the following bases:

1.                  procedural irregularities affected the outcome of the matter;

2.                  newly discovered evidence that could affect the outcome of the matter; and/or

3.                  Title IX personnel (i.e. Title IX Coordinator, investigator or decisionmaker) had a conflict of interest or bias that affected the outcome of the matter.[53]

In addition, a public school entity may offer an appeal equally to both parties on additional bases.[54]

Informal Resolution

If a formal complaint is filed, the Final Regulations allow a public school entity, in its discretion, to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, and written consent. Informal resolution is strictly voluntary and the public school entity is prohibited from requiring the parties to participate in such a process.  If the parties agree to participate in an informal resolution process, any party has the right to withdraw from this process at any time prior to agreeing to a resolution and resume the grievance process based on the formal complaint. While informal resolution is an option that is generally available to the parties, public school entities are prohibited from offering informal resolutions options when there is an allegation that an employee sexually harassed a student.

Retaliation

The Final Regulations prohibit retaliation against any individual exercising his or her rights under Title IX.  This retaliation prohibition specifically protects an individual’s right to participate or refuse to participate in any aspect of the Title IX grievance process.[55]  However, the Final Regulations clarify that the exercise of First Amendment rights does not constitute retaliation.[56]

Forms of prohibited retaliation include, but are not limited to, intimidation, threats, coercion, discrimination, or charging an individual with a code of conduct violation arising out of the same facts or circumstances as a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX.[57]  While retaliation is strictly prohibited, if an individual makes a materially false statement in bad faith during the course of a Title IX proceeding, this individual can be charged with violating the public school entity’s code of conduct policy without constituting an act of retaliation.[58]

Training

The Final Regulations require all public school entities to provide training to all Title IX personnel.  This training must include the following:

1.      The definition of sexual harassment;

2.      How to conduct an investigation and grievance process, including hearings and appeals, and the informal resolution process, as applicable;

3.      The scope of the public school entity’s education programs or activities;

4.      How to serve impartially, including avoiding prejudgment of facts at issue, conflicts of interest, and bias; and

5.      Issues of relevance with respect to preparing fair investigative summaries.[59]

In addition to providing the above training, public school entities are required to publish all training materials on their websites, or make them otherwise available for public inspection upon request. [60]

Recordkeeping

The Final Regulations require public school entities to maintain certain records pertaining to Title IX activities for the period of seven (7) years.  Public School entities must maintain records of the following:

1.      Each sexual harassment investigation, including any determination regarding responsibility and any audio, video or transcript of the proceedings; any disciplinary sanctions imposed on the respondent; and any remedies provided to the complainant;

2.      Any appeal and the result of such appeal;

3.      Any informal resolution and the result of such resolution; and

4.      All materials used to train Title IX personnel.[61]

In addition to the above recordkeeping requirements, public school entities must also create and maintain records of any actions taken in response to a report or formal complaint of sexual harassment (including supportive measures) for a period of seven years.[62]  Furthermore, a public school entity must document the basis for any conclusion that its response was not deliberately indifferent.[63]

Conclusion and Future Developments

Act 110 and the Final Regulations are designed to protect victims of sexual assault and sexual harassment and provide school districts with a framework for addressing these situations in a fair and comprehensive manner that comports with the due process rights of the accused.  While the Final Regulations only became effective as of August 14, 2020, on April 6, 2021, the U.S. Department of Education’s Office for Civil Rights announced that it will undertake a comprehensive review of the Final Regulations as part of implementing President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, issued March 8, 2021. 

President Biden’s March 8, 2021, Executive Order requires the Department of Education to review and reconsider all existing regulations, orders, guidance documents, policies and any other similar actions (including the Final Regulations).  In conducting this review, the Department of Education plans to solicit the public’s input on the issue of sexual harassment in school environments by holding a public hearing to enable those who are interested to share their views through oral comments and written submissions.  After listening to the public and completing its review of the Title IX regulations, prior to final publication the Department of Education anticipates publishing a notice of proposed rulemaking.  However, during this review process the existing Title IX regulations (including the Final Regulations) remain in effect.

While this review process is underway, the Appel, Yost & Zee LLP Education Group will continuously monitor this process and provide updated guidance as it becomes available.

[1] 24 P.S. § 13-1318.1.

[2] 85 Fed. Reg. 30026 (codified in 34 C.F.R. Part 106).

[3] “Public school entity” means a school district, independent school, area career and technical school, intermediate unit, charter school, regional charter school or cyber charter school.  24 P.S. § 13-1318.1(j).

[4] For purposes of Act 110, “convicted” means a finding of guilty by a judge or a jury or the entry of a plea of guilty or nolo contendere for sexual assault whether or not judgment of sentence has been imposed. 24 P.S. § 13-1318.1(j).  Although not defined under Act 110, when a minor is “adjudicated delinquent” it is analogous to an adult “conviction.” It is a formal finding by the juvenile court, after an adjudicatory hearing or the entering of a guilty plea/admission, that the juvenile has committed the act for which he or she is charged.

[5] “Sexual assault” means any of the following offenses:

1. Rape. 18 Pa. C.S.A. 3121.

2. Statutory sexual assault. 18 Pa. C.S.A. 3122.1.

3. Involuntary deviate sexual intercourse. 18 Pa. C.S.A. 3123.

4. Sexual assault. 18 Pa. C.S.A. 3124.1.

5. Aggravated indecent assault. 18 Pa. C.S.A. 3125.

6. Indecent assault. 18 Pa. C.S.A. 3126.

[6] 24 P.S. § 13-1318.1(a)(1).

[7] Id. at § 13-1318.1(a)(3).

[8] Id. at § 13-1318.1(d).

[9] Id. at § 13-1318.1(c).

[10] Id. at § 13-1318.1(a)(2).

[11] Id. at § 13-1318.1(e).

[12] Id. at § 13-1318.1(g).

[13] On December 18, 2020, the Pennsylvania School Boards Association issued Policy 218.3 (Discipline of Students Convicted/Adjudicated of Sexual Assault) a new, required policy to address Act 110, and revised other affected policies such as required Policy 103 (Discrimination/Title IX Sexual Harassment Affecting Students) and optional Policy 252 (Dating Violence).

[14] 24 P.S. § 13-1318.1(i).

[15] 20 U.S. Code § 145(k)(1)(E).

[16] 34 C.F.R. § 300.101 et seq.

[17] 34 C.F.R. § 99.1 et seq.; 34 C.F.R. § 303.401 et seq.

[18] 20 U.S.C. § 1681(a).

[19] The Final Regulations define “complainant” as an individual who is alleged to be the victim of sexual harassment. 34 C.F.R. § 106.30.  The Final Regulations also clarify that any third party as well as the complainant may report sexual harassment.  While parents and guardians do not become complainants (or respondents), the Final Rule expressly recognizes the legal rights of parents and guardians to act on behalf of parties (including by filing formal complaints) in Title IX matters.

[20] The Final Regulations define “respondent” as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. Id.

[21] 34 C.F.R. § Section 106.45(b)(1)(i)

[22] The Final Regulations rejected the Title VII standard for sexual harassment, which includes conduct that is “severe or pervasive,” in favor of the narrower severe, pervasive, and objectively offensive standard.

[23] 34 C.F.R. § 106.30(a).

[24] 20 U.S.C. 1681.

[25] The Final Regulations clarify that Title IX is only implicated regarding conduct that occurs in the United States and not any conduct occurring on foreign soil (such as study abroad or similar school-sponsored international trips or educational programs).

[26] 34 C.F.R § 106.44(a).

[27] 34 C.F.R. § 106.30(a).

[28] 34 § 106.8(a).

[29] Id.

[30] Id.

[31] 34 C.F.R § 106.44(c).

[32] Id.

[33] 34 C.F.R. § 106.44(a).

[34] Id.

[35] 34 C.F.R. § 106.30(a).

[36] Id.

[37] Id.

[38] Id.

[39] 34 C.F.R § 106.44(a); § 106.45(b)(10).

[40] 34 C.F.R. § 106.45(b)(1)(vii).

[41] 34 C.F.R. § 106.45(b)(1)(v).

[42] Id.

[43] 34 C.F.R. § 106.45(b)(2)(B).

[44] Id.

[45] 34 CFR § 106.45(b)(1).

[46] 34 CFR § 106.45(b)(7).

[47] 34 C.F.R. § 106.45(b)(6)(ii).

[48] Id.

[49] 34 C.F.R. § 106.45(b)(3)(i).

[50] 34 C.F.R. § 106.45(b)(3)(ii).

[51] 34 C.F.R. § 106.45(b)(3)(iii).

[52] 34 C.F.R. § 106.45(b)(7)(ii).

[53] 34 C.F.R. § 106.45(b)(8)(i).

[54] 34 C.F.R. § 106.45(b)(8)(ii).

[55] 34 C.F.R. § 106.71(a).

[56] 34 C.F.R. § 106.71(b)(1).

[57] 34 C.F.R. § 106.71(a).

[58] 34 C.F.R. § 106.71(b)(2).

[59] 34 C.F.R. § 106.45(b)(1)(iii).

[60] 34 C.F.R. § 106.45(b)(10)(i)(D).

[61] 34 C.F.R. § 106.45(b)(10)(i).

[62] 34 C.F.R. § 106.45(b)(10)(ii).

[63] Id.