SAFER Act – A Bill to Amend Title IX

In December 2022, identical bills were introduced in the Senate, S. 5158, and House of Representatives, H.R. 9387, to amend Title IX.  The short title for the act is “Students’ Access to Freedom and Educational Rights Act of 2022,” also known as the SAFER Act.  In addition to amending Title IX, the SAFER Act would also amend other federal laws relating to discrimination.  This act would impose additional requirements on schools with regard to protecting individuals from discrimination and Title IX.

The SAFER Act would add a provision making schools liable for sex-based harassment committed by their agents, employees, or other authorized persons if the person’s authority enables or assists in the harassment or the school receives notice of the harassment.  Schools would also be liable for sex-based harassment against a person participating in or receiving benefit, service, or opportunity from a school program or activity or is trying to do so, when the schools have notice of the harassment. A school would not liable for damages if it can show it exercised reasonable care to prevent sex-based harassment and promptly remedy the effects, including through certain specified actions.

It includes definitions for “gender identity,” “on the basis of sex,” “recipient,” “sex-based harassment,” and “sexual orientation.” The definition of “on the basis of sex” includes orientation and gender identity.

If passed, the SAFER Act would require the Department of Education to post a list of recipients of federal financial assistance that are under investigation for violations of civil rights laws, any sanctions or findings, and a copy of the final resolution letter.

The SAFER Act would also require any institution of higher education claiming a religious exemption to Title IX requirements to submit a written statement by its highest-ranking official identifying the provisions of the regulations that may conflict with a tenet of the religious organization that controls the school.  Such schools would be required to post certain documents related to the requests and exemptions on their websites. The Department of Education website would also post information regarding religious exemptions to Title IX requirements.

The new law would require Title IX Coordinators and school administrators to notify complainants in writing and orally about available assistance to support them and ensure they continue to have equal access to education.  Institutions of higher education and local educational agencies would also distribute guidance regarding protections against punishment and retaliation for students reporting sexual harassment.

If passed, this law would create thresholds for the number of Title IX Coordinators at institutions of higher learning and local educational agencies and require Title IX Coordinators to perform certain duties to ensure compliance with laws and regulations against sex-based discrimination.

Although the proposed law would not directly change the rights of students accused of violating Title IX, the provisions imposing liability on schools when they have notice of the harassment could affect how schools handle allegations.  If you are facing allegations of sex-based discrimination at school, a skilled Washington Title IX defense attorney can help you fight for your rights and your future.  Call Blair & Kim, PLLC, at (206) 622-6562 for a consultation.


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