These are unprecedented times. Surprisingly, I’m not talking about COVID-19 (yet). I’m talking about the tectonic shift that just happened in Title IX and how it is going to impact K-12 schools across the nation. On May 6, extensive new Title IX regulations were released that govern how schools must address sexual harassment in education programs and activities. These rules mark the first regulatory changes to Title IX in decades and will require significant operational changes and capacity building efforts for nearly all K-12 schools.
While not an exhaustive review, below are some of the ways the new rules will change the landscape of the K-12 sector.
New Title IX Rules Have the Force of Law
The new rules are not mere suggestions, interpretations or helpful hints. They are the law of the land that all schools receiving federal funds must follow. The new rules place the burden of responding to sexual harassment in education settings squarely on the shoulders of schools and mandate procedures for doing so. The required procedures will be a heavy lift and will make it so most schools will need to do far more than they have in the past. Accordingly, concerted efforts will need to be made to revamp Title IX policies and procedures to come in line with the new rules – and there isn’t much time to do it.
New Rules Take Effect August 14, 2020
Schools only have until August 14, 2020, to ensure they are following the new rules. Because the due date coincides with the start of fall term, schools will have to fit in overhauling their Title IX efforts while simultaneously trying to figure out how to re-open during a global pandemic.
More People Will Need to Know Who Is the Title IX Coordinator and How to Contact Them
Designating a Title IX coordinator is not a new requirement. However, under the new rules, whoever this person is must be specifically referred to as such in their title. For example, if an employee with a job title of “federal programs officer” is the designated Title IX coordinator, their job title should be changed to “federal programs officer and Title IX coordinator.” In addition, that person’s name or title, office address, email address and phone number must now be provided to the following:
- Parents/legal guardians of students
- Applicants for admission and employment
- All unions and professional organizations holding collective bargaining or professional agreements with the school
- Included in each handbook or catalog made available to the groups above
- Prominently displayed on the school’s website.
All School Employees Are Mandatory Reporters
All K-12 employees are now mandatory reporters for Title IX purposes, meaning all reports of sexual harassment made to any employee must be promptly reported to the Title IX coordinator. This includes reports to bus drivers, cafeteria workers, school counselors, etc. The downstream effect is that there are now no K-12 employees that can act as a confidential resource for purposes of Title IX. It also means that most K-12 employees will now be double mandatory reporters, both for child abuse and Title IX. As a result, employees will need to be trained about their status as mandatory reporters, what information they need to report, who they need to report it to and how to do so.
There Is a New Definition of Sexual Harassment
Sexual harassment under Title IX is now defined as conduct on the basis of sex that satisfies any of the following:
- Quid pro quo by an employee;
- Unwelcome conduct that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to a school’s education program or activity; or
- Sexual assault as defined by the Clery Act, and dating violence, domestic violence and stalking as defined by the Violence Against Women’s Act (VAWA).
This definition raises the bar for what is considered sexual harassment under Title IX. It also means K-12 will have to incorporate definitions from the Clery Act and the Violence Against Women Act (VAWA) – previously only applied to higher education – into their policies.
Minimum Response Required
According to the new rules, if a school receives a report of sexual harassment, it must respond in certain ways. Minimally, the Title IX coordinator must promptly contact the alleged victim (complainant) to offer and discuss the availability of supportive measures, explain that supportive measures are available with or without filing a formal complaint, and explain the process for how to file a formal complaint. Supportive measures include things like counseling, extensions of deadlines or other course-related adjustments, modifications of class schedules, campus escort services, mutual restrictions on contact between parties, leaves of absence, increased security and monitoring of certain areas of campus, etc. The supportive measures must be free of charge, non-disciplinary (see Emergency Removal of Students below), and non-punitive individualized services that don’t unreasonably burden the parties.
Formal Complaints Trigger Investigations
The new rules describe a formal complaint as a document filed by a complainant, their parent or legal guardian, or the Title IX coordinator alleging sexual harassment and requesting that the school investigate. Once a formal complaint is filed, it triggers a school’s obligation to investigate. As a result, schools must ensure that a school-based investigation always occurs in the event a formal complaint is filed that meets the criteria below, even if the report has also been referred to law enforcement. Schools must also ensure parents and legal guardians are aware of their right to file formal complaints on behalf of their children.
Title IX Jurisdiction Is Narrowly Construed
Under the new rules, Title IX sexual harassment complaints must be addressed through a prescribed grievance process. However, this process is only required if all of the following criteria are met:
- At the time of filing a formal complaint, the complainant is participating in, or attempting to participate in, the education program or activity of the school the formal complaint is filed with
- The conduct meets the new definition of sexual harassment
- The conduct occurred in the United States
- The conduct occurred in a school’s education program or activity.
An education program or activity is defined as locations, events or circumstances over which the school exercises substantial control over both the person accused of engaging in the misconduct (respondent) and the context in which the sexual harassment occurred. For example, when a student or employee engages in sexual harassment at school, on the school bus or at school-sponsored activities.
The new rules state that formal complaints of sexual harassment that do not meet all of the criteria above must be dismissed under Title IX. For example, when allegations of harassment don’t meet the new sexual harassment definition, or when the conduct occurred during a study abroad program or at an off-campus house party. Even though schools must dismiss such reports under Title IX, they may be addressed through other policies, such as a student code of conduct. Either way, schools will need to update their policies and procedures to reflect how cases will be handled when Title IX is implicated and when it is not.
Written Notice Must Be Given to Both Parties
Upon receipt of a formal complaint, schools must provide written notice to both the complainant and respondent that includes certain information. The notice must include things like the relevant grievance procedures, information about the allegations with details such as the identities of the parties and the date and location of the alleged incident, if known, and a statement that the respondent is presumed not responsible, among other items. In addition, written notice must be given with sufficient time to prepare for any meetings, interviews, or hearings that a party is expected to attend. This means that a party cannot be pulled out of class for questioning pertaining to a Title IX investigation unless written notice with sufficient time to prepare has been given first.
Both Parties Entitled to Advisors of Choice
Complainants and respondents are entitled to have an advisor of their choice to be present with them at any meetings, interviews and hearings the party is expected to attend. Advisors can be anyone, including an attorney, and a school may not limit who a party chooses as their advisor. Schools will need to make sure parties to Title IX investigations are made aware of their right to an advisor, including by providing it in the initial written notice.
Emergency Removal of Students
The new rules seek to ensure that student respondents are not disciplined until they go through a fair process that results in a determination that they are responsible for engaging in sexual harassment. Accordingly, schools cannot discipline students before a determination of responsibility is made; for example, by placing them on interim suspension while an investigation is conducted. However, the rules provide for certain emergency exceptions where students may be removed from school prior to the conclusion of a grievance process that arises from an allegation of sexual harassment.
In these situations, schools may remove a student only if the school conducts an individualized safety and risk analysis and determines that there is an imminent threat to the physical health or safety to students or employees. If a school does remove a student under this provision, it must provide the student with written notice and the ability to immediately challenge the removal decision. Schools would do well to engage their threat assessment teams to assist them in this process.
Investigations Will Take Longer
Schools must assign an investigator(s) to interview parties and witnesses, collect evidence and produce a written investigation report. The new rules state that prior to finalizing the report, all evidence directly related to the allegations must be provided to the parties, who must be given at least 10 days to review and submit written responses. After this, the investigator(s) finalizes the investigation report and must send the finalized report to the parties to review and submit written responses. This must be done at least 10 days before a determination of responsibility is made by a separate decision maker. Given the time it will take to conduct interviews, write reports and undergo the bifurcated 20-day review and comment period, investigations will probably take around 25 days to complete, minimally.
Schools Will Need More Trained People
The new rules mandate the separating out of roles and personnel related to different stages of the Title IX grievance process. All schools must designate at least one Title IX coordinator, who is responsible for receiving reports and providing and implementing supportive measures. Schools must also designate personnel to conduct investigations, who may or may not be the Title IX coordinator. Investigators cannot make findings of responsibility. Instead, a separate person(s) must serve as the decision maker(s). This cannot be the Title IX coordinator. A different person(s) must serve as an appellate officer(s) as schools must now offer an appeal process, and schools may designate individuals to conduct informal resolutions. Conflicts of interest must be accounted for, so designating alternates will be needed.
All personnel involved in the Title IX grievance process must be specifically trained according to the training criteria contained in the new rules, and the training material used must be posted to the school’s website. Designating and training personnel to fill the ranks of the Title IX grievance process will be a challenge, especially in the midst of COVID-19’s impact on school resources. However, all roles with the exception of the Title IX coordinator may be outsourced, so schools may want to consider establishing MOUs with other schools/districts.
Substantial Documentation Will Need to Be Created and Retained
Schools will need to create and retain for seven years records of any actions taken in response to a report or formal complaint of sexual harassment. This includes, but is not limited to, documentation for each sexual harassment investigation, including any responsibility determination, disciplinary sanctions imposed, remedies and supportive measures provided, and appeal and informal resolution documentation, if applicable. Schools should consider developing a record-retention system organized by report/formal complaint. Having such a system will assist in satisfying the documentation requirements in the new rules and will also help to identify any larger or systemic patterns that may exist.
Coming in line with the extensive new rules is a tall order schools, even when they aren’t contending with a pandemic. However, elephants aren’t eaten in one bite; this will likely be a process of aiming for progress. Fidelity to the new rules cannot be accomplished by a single person, so as an initial step, assemble or designate a Title IX team to inform them of the new rules, identify areas where change is needed and chart a path forward.
Elliot Cox is a School Safety Analyst for the Idaho Office of School Safety and Security. Prior to his current position, he worked in higher education for nearly six years in various capacities, including as a Title IX Investigator, Clery Act Compliance Coordinator and Minors on Campus Program Coordinator. Before working in higher education, Elliot worked for a prosecutor’s office, public defender and was a child protective services case worker. He can be reached at [email protected].
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