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NEW TITLE IX REGULATIONS ISSUED BY

       THE DEPARTMENT OF EDUCATION TAKE
       EFFECT AUGUST 14, 2020




      FIRM OVERVIEW           On May 6, 2020, the United States Department of Education (DOE) issued much-

      Practice Areas          anticipated Regulations (Regulations) addressing how schools and colleges (referred to as
                              Recipients) must respond to claims of sexual harassment covered by Title IX of the
      Administrative Hearings
      Charter School          Education Amendments of 1972 (Title IX). Title IX is the federal law which prohibits
      Community College       discrimination on the basis of sex in educational settings. The Regulations make significant
      Facilities & Business   changes to current requirements and practices and require compliance by August 14, 2020.
      Governance
      Investigations          Some of the most notable changes imposed by the Regulations are detailed below.
      Labor & Employment
      Litigation              SEXUAL HARASSMENT IS NARROWLY DEFINED
      Municipal
      Public Finance          Sexual harassment is now narrowly defined to mean conduct on the basis of sex that
      Public Safety           satisfies one or more of the following:
      Special Education
      Student                 1. Any employee of the Recipient conditioning the provision of an aid, benefit, or service of
      Technology & Innovation
      Title IX                  the Recipient on an individual’s participation in unwelcome sexual conduct;
                              2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and
      Statewide
                                objectively offensive that it denies a person equal access to the Recipient’s educational
      Sacramento                program; or
      Walnut Creek            3. Sexual assault (as defined in the Clery Act (20 U.S.C. § 1092(f)(6)(A)(v)), or dating violence,
      Fresno
      Monterey                  domestic violence, or stalking (as defined in the Violence Against Women Act (20 U.S.C.
      Bakersfield               § 12291(a)).
      San Luis Obispo
      Los Angeles
      San Diego               A SINGLE INVESTIGATOR/DECISION-MAKER MODEL IS PROHIBITED
                              The Regulations clearly provide that the decision-maker, or the person(s) responsible for
      Authors                 determining responsibility, cannot be the same person as the Title IX Coordinator or the
                              investigator. Moreover, in the event of an appeal, the appellate decision-maker cannot be
                              the same person who served as the Title IX Coordinator, investigator, or decision-maker
                              making the original determination. Among other things, the decision-maker must also
                              issue a written determination regarding responsibility in accordance with the Regulations
                              at section 106.45(b)(7).
      Michelle L. Cannon
      mcannon@lozanosmith.com
                              DISCLOSURE OF EVIDENCE
                              As part of the formal grievance process, detailed within section 106.45 of the Regulations,
                              both parties and their advisors must be given the opportunity to inspect, review, and
                              respond to all evidence that is directly related to the allegations in the formal complaint,
                              before the investigator completes the investigation report. Additionally, the final
      Stephanie M. White
      swhite@lozanosmith.com  investigative report must be provided to the parties and their advisors at least 10 days
                              before any hearing, if there is one.

                              LIVE HEARINGS ARE REQUIRED FOR POSTSECONDARY RECIPIENTS
                              Post-secondary Recipients must have live hearings that permit the cross-examination of
                              the involved parties and witnesses. Cross-examination must be conducted by the advisor,
      Sarah E. Fama
      sfama@lozanosmith.com

      New Title IX Regulations Overview                                                         LozanoSmith.com      4
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