	Background

Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment committed by professors, teachers, coaches, and others at educational institutions. The statute prohibits discrimination "on the basis of sex" of any person in an educational program or activity receiving federal funding. Meanwhile, federal agencies that administratively enforce the statute, such as the Department of Education (ED), have also determined that educational institutions can be held responsible for instances of sexual harassment under Title IX in certain circumstances. Title IX is thus primarily enforced in two ways: (1) through private rights of action directly against schools by or on behalf of students subject to such harassment in certain circumstances; and (2) by federal agencies that provide funding to educational programs. In each of the last several presidential administrations, however, the Department of Education (ED) has issued guidance documents that instruct schools regarding their responsibilities under Title IX when addressing allegations of sexual harassment. And ED recently issued another notice of proposed rulemaking, after having revoked some of its prior guidance to schools in 2017. As discussed in this report, if adopted, the regulations would significantly change educational institutions' responsibilities for responding to sexual harassment allegations. Two Supreme Court decisions, together, set out the requirements for establishing an educational funding recipient's liability under Title IX for damages for sexual abuse or harassment: Gebser v. Lago Vista Independent School District and Davis N ext Friend LaShonda D. v. Monroe County Board of Education . Federal Courts' Application of Gebser and Davis to Title IX Claims for Sexual Harassment or Abuse

The Supreme Court's Gebser and Davis decisions establish that a school or other educational program that receives federal funding will be liable under Title IX for damages for the sexual abuse or harassment of a student only if it acted with "deliberate indifference" in its response to known discrimination. Nor is a school required to remedy the harassment to avoid liability in a private right of action based on "deliberate indifference." These documents—while sometimes subject to change—generally reflect a different analysis for assessing a school's Title IX liability for harassment than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment. As discussed above, in 1998, in Gebser , the Supreme Court ruled that in cases of harassment committed by a teacher , a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination. And the next year in Davis , the Court held that in addition to a showing of actual knowledge by an appropriate person, and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits. In these documents, ED has indicated that the liability standard imposed by the Supreme Court for Title IX sexual harassment violations is distinct from the standards appropriate in the administrative enforcement context. The Letter also strongly discouraged schools from allowing the parties in a hearing to personally cross-examine one another. Legal Challenges to University Title IX Procedures

In response to the foregoing guidance from ED, as well as increased oversight from OCR between 2011 and 2016, schools developed a variety of procedures to ensure that their responses to allegations of sexual assault complied with Title IX. In particular, a number of students faced with disciplinary action by public universities have raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in the handling of their case. Among other things, the proposed regulation would (1) define in narrower terms what conduct qualifies as sexual harassment under Title IX; (2) require "actual notice" of harassment, rather than constructive notice, to trigger a school's Title IX responsibilities; (3) provide that a school's response to allegations of sexual harassment will violate the statute only if amounting to deliberate indifference; and (4) impose new procedural requirements that reflect concern for due process when schools investigate allegations and make determinations of culpability. Adopting "Actual Notice" Requirement

Second, in a departure from past administrative practice, in which ED considered "constructive notice" (i.e., known or should have known) to trigger a school's responsibilities in cases of student-on-student harassment, and did not impose a notice requirement in certain cases of harassment by a teacher or employee, the proposal would establish that a school has a duty to respond to allegations of sexual harassment only when it has "actual knowledge." And in contrast to past guidance from ED, the new regulations permit schools to apply either a preponderance of the evidence standard or a clear and convincing standard.
Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment at educational institutions. It bars discrimination "on the basis of sex" in an educational program or activity receiving federal funding. Although Title IX makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal agencies have determined that such conduct can sometimes constitute discrimination in violation of the statute; educational institutions in some circumstances can be held responsible when a teacher sexually harasses a student or when one student harasses another. Title IX is mainly enforced (1) through private rights of action brought directly against schools by or on behalf of students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs.
To establish liability in a private right of action, a party seeking damages for a Title IX violation must satisfy the standards set forth by the Supreme Court in Gebser v. Lago Vista Independent School District, decided in 1998, and Davis Next Friend LaShonda D. v. Monroe County Board of Education, decided the next year. Gebser provides that when a teacher commits harassment against a student, a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination. Davis instructs that, besides showing actual knowledge by an appropriate person and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits. Taken together, the Supreme Court's decisions set forth a high threshold for a private party seeking damages against an educational institution based on its response to sexual harassment. In turn, federal appellate courts have differed in how to apply the standards set in Gebser and Davis, diverging on the nature and amount of evidence sufficient to support a claim.
In each of the last several presidential administrations, the Department of Education (ED) issued a number of guidance documents that instruct schools on their responsibilities under Title IX when addressing allegations of sexual harassment. These documents—while sometimes subject to change—generally reflected a different standard than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment (the Court in Davis acknowledged that the threshold for liability in a private right of action could be higher than the standard imposed in the administrative enforcement context). Those guidance documents had, among other things, established that sometimes a school could be held responsible for instances of sexual harassment by a teacher, irrespective of actual notice; and schools could be held responsible for student-on-student harassment if a "responsible employee" knew or should have known of the harassment (constructive notice). ED's previous guidance also instructed educational institutions that they sometimes could be responsible for responding to incidents of sexual harassment occurring off campus. ED also cautioned schools on the use of mediation to resolve allegations of sexual harassment. With regard to the procedures used by schools to resolve sexual harassment allegations, ED informed schools that they must use the preponderance of the evidence standard to establish culpability, and the agency strongly discouraged schools from allowing parties in a hearing to personally cross-examine one another. In response to guidance from ED, as well as increased oversight from the department's Office for Civil Rights (OCR) between 2011 and 2016, schools developed several procedures to ensure that their responses to allegations of sexual harassment and assault complied with Title IX. A number of students faced with disciplinary action by public universities raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in handling their case.
ED issued a notice of proposed rulemaking in late 2018, after revoking some of its previous guidance to schools in 2017. The proposed regulations would, in several ways, tether the administrative requirements for schools to the standard set by the Supreme Court in Gebser and Davis. In doing so, the proposed regulations would depart from the standards set by ED in previous guidance documents (some of which have since been rescinded). The new regulations would require "actual notice," rather than constructive notice, of harassment by an education institution to trigger a school's Title IX responsibilities, and provide that a school's response to allegations of sexual harassment will violate Title IX only if it amounts to deliberate indifference. In addition, the new regulations would more narrowly define what conduct qualifies as sexual harassment under Title IX, and also impose new procedural requirements, which appear to reflect due process concerns, when schools investigate sexual harassment or assault allegations and make determinations of culpability.