not the same person as the Title
IX coordinator or the investigator;
• Prohibit a Title IX coordinator,
decision maker, or investigator
from having a conflict of interest or
bias and require these individuals
to receive gender-neutral training.
The DOE received over 100,000
comments from the public regarding
the proposed rules. Many commenters
expressed concern that the substantive
parts of the proposed regulations—
establishing legal liability based on “actual
notice” and “deliberate indifference”—
will have a chilling effect on reports
of sexual violence. Others believe that
the proposed changes would promote
fairness and clarity by bringing the DOE’s
standards in line with the US Supreme
The proposed rules’ procedural
components are also controversial.
While the DOE intended to address due
process concerns raised by litigation
from accused students in higher edu-
Boards Association17 pointed out in their
responses to the proposed rules that
student discipline for K- 12 students is
governed by a different set of laws and
As this debate plays out on the stage
of public opinion, school district officials
should prepare for changes to school
district policy and new training requirements if the proposed rules are adopted
as written. Contact TASB Legal Services
at 800.580.5345 or firstname.lastname@example.org or your
local school district attorney for more
information about Title IX.H
120 U.S.C. § 1681.
234 C.F. R. § 106.41(c).
3See, e.g., Daniels v. Sch. Bd. of Brevard County, Fla.,
985 F.Supp. 1458 (M. D. Fla. 1997) (finding school board
could be held responsible for inequitable funding
resulting from booster club donations although district
itself provided equal funding).
434 C.F. R. § 106.41(b).
534 C.F. R. § 106.34(a).
634 C.F. R. § 106.34(b).
7Gebser v. Lago Vista Indep. Sch. Dist, 524 U.S. 274
8Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633
9See Davis, 526 U.S. at 652 (stating it is not enough to
show that a student has been teased or called offensive names); see also Sanches v. Carrollton-Farmers
Branch Indep. Sch. Dist., 647 F.3d 156, 165-67 (5th Cir.
2011) (holding derogatory gossip and name-calling
were insufficient for Title IX claim, even if based on sex).
10See, e.g., Doe 12 v. Baylor Univ., 336 F.Supp.3d 763
( W. D. Tex. 2018) (finding female private university
students stated Title IX claim that university failed to
respond appropriately to student-on-student sexual
1134 C. F. R. §§ 106.1, . 8(a).
1234 C. F. R. § 106.8(a).
13See U.S. Dep’t of Educ. Office for Civil Rights, Title IX
Coordinators (May 11, 2016), ed.gov/policy/rights/
14Elizabeth J. Meyer, Andrea Somoza-Norton, Natalie
Lovgren, Andrea Rubin, & Mary Quantz, Title IX Coordinators as Street-Level Bureaucrats in U.S. Schools:
Challenges Addressing Sex Discrimination in the #Me-Too Era, 26 EDUCATION POLICY ANALYSIS ARCHIVES
15US Dep’t of Educ., Secretary DeVos: Proposed Title IX
Rule Provides Clarity for Schools, Support for Survivors,
and Due Process Rights for All (Nov. 16, 2018), ed.gov/
16Sarah Orman Senior Attorney, TASB Legal Services,
Letter to Kenneth Marcus, Asst. Sec’ty of Educ., Office
for Civil Rights, U.S. Dept. of Educ. (Jan. 30, 2019),
17Thomas J. Gentzel, Executive Director & CEO, Nat’l
Sch. Bds. Assoc., NSBA Comments on Department of
Education Proposed Rule (Jan. 30, 2019), cdn-files.
Sarah Orman is a TASB Legal Services
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