The wait is over. Today, the U.S. Department of Education (DOE) released the long-anticipated final version of its Title IX rules governing how schools must respond to allegations of sexual harassment. Although there are minor changes throughout it, the regulation is largely unchanged in substance from the draft proposed in November 2018. Importantly, the new Title IX rules carry the force of law, unlike the heavily criticized 2011 Office for Civil Rights Dear Colleague letter—a guidance document that schools have been working under for the past eight years. This regulation was subject to extensive public comment. Indeed, the DOE received and reviewed more than 100,000 remarks before finalizing it.
One of the key components of the regulation is the identification of what constitutes sexual
harassment. The definition includes: 1) quid pro quo harassment by school employees, 2)
unwelcome conduct that a reasonable person finds so severe, pervasive, and objectively offensive
that it denies him or her equal educational access; and 3) sexual assault, dating violence, domestic
violence, or stalking, the latter categories being added in response to public comments to the draft.
Schools must respond when they have actual knowledge of sexual harassment that occurred within
their education program or activity against a person in the United States.