Sex-Based Harassment

2024 Final Regulations

On January 9, 2025, a federal district court issued a decision vacating the 2024 Final Rule. Consistent with the court's order, the 2024 Title IX regulations are not effective in any jurisdiction. 

Sexual Harassment

Under the 2020 Title IX regulations, sexual harassment is conduct on the basis of sex that meets one or more of the following descriptions:

• A school employee conditioning an educational benefit, service or an individual’s participation in an educational activity upon unwelcome sexual conduct (“quid pro quo”)
• Unwelcome conduct determined by a reasonable person to be “so severe, pervasive and objectively offensive” that it effectively denies the victim access to the school’s education programs
• “Sexual assault,” “dating violence,” “domestic violence,” or “stalking” as those terms are defined under the Clery Act and the Violence Against Women Act

(Section 106.30 of the 2020 Title IX Regulations)

Anyone, regardless of race, sexual orientation, disability status, or gender identity might be a victim or perpetrator of sexual harassment. 

2020 Title IX Regulations Regarding Sexual Harassment and Sexual Violence

The 2020 Title IX Regulations specify how recipients of Federal financial assistance, including elementary and secondary schools, must respond to allegations of sexual harassment and sexual assault consistent with Title IX’s prohibition against sex discrimination. 

• Summary of Major Provisions of the Department of Education’s Title IX Final Rule
• Office for Civil Rights Webinar: Title IX: An Introduction to the New Regulations
• Office for Civil Rights Webinar: New Title IX Protections Against Sexual Assault
• Office for Civil Rights Webinar: Due Process Protections Under the New Title IX Regulations 

Online Sexual Harassment

Sexual harassment online or through the use of Artificial Intelligence (AI) could be considered part of a school’s educational program or activity when the sexual harassment occurs in “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs.”  (Preamble to the 2020 Title IX Regulations).  On January 14, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) released a new resource to explain that Title IX regulations require schools to address sexual harassment in their education program or activity – even when such harassment occurs online or using emergent technologies such as artificial intelligence. 

Online or Digital Sexual Harassment under the 2020 Title IX Regulations: A Resource for Students, Families, and Educators explains schools’ obligations under the 2020 Title IX regulations.  Designed to inform students, parents, and educators of their rights under Title IX, this new resource includes answers to frequently asked questions, including:

• What is online or digital sexual harassment?
• What is a school’s responsibility to address such harassment under Title IX?
• What can a student do if they experience online or digital sexual harassment that’s covered by Title IX?

This resource makes clear that under Title IX and its implementing regulations, students have the right to an educational environment free from sexual harassment—no matter what form such harassment takes

School/District Obligations to Respond

All schools and districts that have accepted any Federal funding have obligations to respond to allegations of sexual harassment that occur within the school’s educational programs or activities.

1. When a school/district has actual knowledge of sexual harassment in an education program or activity, the Title IX Coordinator must:
   1. promptly contact the complainant to discuss the availability of supportive measures, with or without the filing of a formal complaint
   2. explain to the complainant the process for filing a formal complaint. 

(Section 106.44 of the 2020 Title IX Regulations)

2. Upon receipt of a formal complaint, a school/district must provide written notice to the parties who are known, which includes:
   1. Notice of the school/district grievance process, including any informal resolution process
   2. Notice of the allegations of sexual harassment, including sufficient details and with sufficient time to prepare a response before any initial interview
   3. The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
   4. The written notice must inform the parties that they may have an advisor of their choice.
   5. The written notice must inform the parties of any provision in the code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

(Section 106.45 of the 2020 Title IX Regulations)

Every K-12 school employee is deemed a “responsible employee.”  If a responsible employee is aware of sexual misconduct, then a school has “actual knowledge,” and is therefore obligated to respond.

2020 Overview Webinars

An Overview of the 2020 Title IX Regulations: What they are and Steps to Take:  This two-part informational webinar series was delivered virtually Oct 2020, by the Colorado Department of Education (CDE), in collaboration with the Colorado Association of School Boards (CASB). For more information, or to request a copy of the recordings, please contact Rebekah Ottenbreit at Ottenbreit_r@cde.state.co.us and specify “2020 Title IX Regulations Overview webinars.”

How to File a Complaint

Title IX complaints should be filed with the individual school or district. However, a complaint may also be filed with the U.S. Office for Civil Rights.

• U.S. Office for Civil Rights Webinar on How to File a Complaint with the Office for Civil Rights
• U.S. Department of Education Office for Civil Rights Case Processing Manual, July 2022

The Office for Civil Rights also offers mediation services.  Just select “mediation” on the Office for Civil Rights Complaint Form

Anti-Retaliation Provision

It is unlawful to retaliate against individuals, including Title IX Coordinators, for:

• Filing a Title IX complaint
• Participating in a Title IX investigation, hearing or proceeding
• Advocating for others’ Title IX rights

On December 10, 2024, the United States Department of Education’s Office for Civil Rights (OCR) released a new resource, Civil Rights Protections Against Retaliation, that explains the key elements of retaliation, outlines how OCR assesses retaliation claims, and provides examples that, depending on the facts and circumstances, could raise concerns of unlawful retaliation.

Federal civil rights laws offer protection for people, including students, siblings, parents, guardians, teachers, counselors, coaches, or third parties advocating for the rights of students, who exercise their civil rights, oppose discrimination, report discrimination, or participate in civil rights investigations or proceedings. Retaliation may take the form of intimidation, threats, coercion, or another adverse action that would deter a reasonable person from exercising civil rights protected under the laws OCR enforces and occurs when a person is discriminated against for taking actions that are protected by civil rights laws.