What do many of the highest-profile sexual assault cases in our country have in common? Whether it is the high-profile case involving a Stanford swimmer or the contentious Supreme Court confirmation hearings for Brett Kavanaugh, we have seen the evolving understanding of “consent” take center stage in many of the most notable recent cases.

Consent education has evolved over time from the rhetoric of “no means no,” with its focus on express refusal as a precursor to stopping sexual conduct, to “yes means yes,” which requires affirmative consent to continue with sexual activity. Advocates argue that sexual education around consent must reflect these changes and nuances.

In Illinois, legislators responded to this call by passing Public Act 101-0579 (which began as House Bill 3550) in late August. The law amends the School Code to require Illinois public schools that offer sex education in grades six through twelve to provide lessons on the issue of consent. Training under the law does not necessarily check all the boxes required by Title IX, however. Read on for key takeaways for school leaders.

Illinois House Bill 3550

Under the new Illinois law, all classes offered in grades six through twelve that teach sex education and discuss sexual intercourse must incorporate age-appropriate lessons and materials that discuss the meaning of consent. Specifically, the curriculum for these classes must address that:

• Consent is a freely given agreement to sexual activity;
• Consent to one type of sexual activity is not consent to other types of sexual activity;
• A person’s lack of either verbal or physical resistance or submission based on the use or threat of force is not consent;
• How a person is dressed does not constitute consent;
• A person’s consent to past sexual activity does not constitute consent to future sexual activity;
• A person’s consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another person;
• A person can withdraw consent at any time; and
• A person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent due to circumstances (such as incapacitation from drugs or alcohol, incapacitation due to a mental disability, that the person is a minor, that the person is asleep or unconscious, etc.).

The new law aims to teach lessons regarding appropriate boundaries and consent and break down common misconceptions regarding sexual harassment and assault to Illinois students at an early age in the hopes of preventing problematic behavior in the future. But how does the new Illinois law square with Title IX standards?

Current Title IX Requirements

OCR defines sexual harassment and misconduct that is prohibited by Title IX as conduct that is unwelcome and that is sufficiently serious to adversely affect a student’s ability to participate in or to benefit from a school’s programs or activities. Consent, as defined in Public Act 101-0579, may be one factor considered when determining whether conduct was unwelcome, but it is certainly not determinative.

It is possible that OCR might find that conduct is “unwelcome” even if it falls within the definition of consent as defined in Public Act 101-0579. For example, a student might not resist sexual advances of another student due to the student feeling pressured by that student or others to agree to such advances. In such a scenario, even without any “use or threat of force” (to quote Public Act 101-0579), OCR might find the conduct to be “unwelcome.”
Moreover, Illinois law only requires instruction on consent in sexual education classes in grades six through twelve. In many school districts, students may only receive one or two sexual education classes during that time, which would satisfy the requirement under Illinois law. It is unclear whether OCR would find such training sufficient under Title IX, however, particularly if there have been any sex-based incidents of misconduct in your community throughout the years.

Key Takeaway for School Leaders

Because there are some key differences between the instruction required under Public Act 101-0578 and the Title IX training recommended by OCR, Illinois schools implementing Public Act 101-0579 should consider folding in training that will stave off an OCR or other Title IX challenge as well as complying with the new law. Particularly if you have seen any sex-based misconduct in your community, more-frequent training that addresses the full panoply of state and federal law requirements will best protect you from an OCR or other legal challenge. For more information about compliance with and implementation of these laws in your school district or the distinctions regarding consent under state and federal law, contact a member of our Franczek Title IX team.