Updated Title IX Rules: Analysis of “Actual Knowledge”
Because Title IX addresses an educational institution’s own misconduct – and not the misconduct of the alleged harasser – the institution must first be aware that there is misconduct that needs to be addressed. In short, the institution must have “actual knowledge” that the harassment was alleged (previously, institutions generally were held to a standard that they knew, or should have known about the harassment). This is a higher bar.
An institution has actual knowledge when notice of sexual harassment is received by the Title IX Coordinator or another official with authority to institute corrective measures for sexual harassment. Determining whether an individual is an “official with authority” depends on the specific facts relating to a recipient’s administrative structure and the roles and duties held by officials in the recipient’s own operations. In the postsecondary context, notice to employees whom a “student could reasonably believe” have authority or duty to report no longer automatically triggers a school’s response obligations.
When a Title IX Coordinator or an “official with authority” has actual knowledge of sexual harassment, the institution must respond in a way that is not deliberately indifferent. Put another way, an institution will not be liable for its response to allegations of sexual harassment unless the response is clearly unreasonable in light of the known circumstances.
In the postsecondary context, the Department is encouraging more autonomy for the complainant to decide whether to report sexual harassment and to pursue informal resolutions without having to file a formal complaint. In other words, not every “report” requires a formal process.
Schools are given the flexibility to develop policies to determine which employees are mandatory reporters, which employees may listen to a disclosure of sexual harassment without being required to report it to the Title IX Coordinator, and/or which employees must report to the Title IX Coordinator but only with the complainant’s consent.