Bill Bethke on New Title IX Regulations

As SARS CoV-2, related policies, and financial fallout are dominating most charter school leaders’ thoughts, the Federal Department of Education has issued a re-write of Title IX regulations specific to sexual harassment.  This is not mere guidance or advice, but articulation of new standards of law as it will be enforced by the Department.  These regulations supersede a body of Title IX sexual harassment and sexual violence guidance that has been slowly growing over at least 20 years, and add significant new obligations.

 

The changes are significant, have real complexity, and will come into effect in August.  The notice of final rulemaking as released by the Department runs to over 2,000 8 ½ x 11 pages (much of that analyzing comments received and the regulators’ responses).  Those interested in perusing the full 2,000 pages can find it here.   The changed language to be inserted in existing Title IX rules is at  pp. 2006-2033.  For K-12 education there are a number of highlights I will briefly touch on below.  We will be reviewing the changes more closely in coming days and developing training materials for schools.  For now, major changes include:

 

  • Instead of “strict liability” of K12 schools in Office for Civil Rights (OCR) proceedings, the standard will now be whether there was “deliberate indifference” by the school to incidents that could become sexual harassment.

 

  • Taking back a large part what seemed to be given in that first change, OCR will consider a K-12 school to have “knowledge” of anything a school employee knew.  Thus, a school employee who fails to report concerning conduct (or engages in the concerning conduct, and does not have it reported by others) puts the school on the hook for “deliberate indifference.”  Thus, while the change in standard will be helpful when the “school” actually knows and can do something; it will be distinctly unhelpful when information does not get to the correct people.  In other words, staff responsibility for reporting has become more important.  Making sure this is known and barriers to reporting are reduced should be an order of business in August back-to-school PD.

 

  • The new regulations also assimilate the standard for finding “sexual harassment” to the Supreme-Court-recognized standard, with some added nuances appropriate to the regulatory environment (and reflecting, in part, laws ancillary to Title IX, such as the Violence Against Women Act).  This is a very significant change.  It means that if a relatively minor incident that could, as a pattern, become sexual harassment is addressed effectively, you will be less likely to have OCR flyspecking your every move.  The single incident will not have the opportunity to grow into a severe or pervasive pattern.  This creates in other words, a little more space for effective internal systems of response to inappropriate behavior, especially with students.  But effective responses are key.  If you use up the space you are now given by letting problems fester, OCR will, I predict, be quick to detect “severe” patterns of behavior.  And keep in mind that the most severe behavior (such as sexual assault) automatically meets the regulatory standard in a single event.

 

  • Perhaps the biggest change is that the regulations now lay out specific details of the “due process” that is due to both the accused and the accuser.  This is likely to change investigative practice significantly.  While the regulators claim not to be turning the process into a proceeding of court-like complexity, more formal notices (and just more notices to more people), and certain very specific (and parallel) “due process” principles are now in the rules.  This means there is an enhanced opportunity to get the substantive issue of handling sexual harassment right while getting the process wrong — and perhaps to get it wrong twice:  once for a “perpetrator” and once for a “victim.”  This is an area I will be summarizing in more detail in the future and that will need close attention from school administration and Title IX coordinators.

 

  • The new rules permit use of informal procedures (such as restorative justice practices), but within some defined limits.

 

  • As with the previous regime you must have a Title IX coordinator.  You may use your school district Title IX coordinator if you and the district are in agreement on that.  I would consider being sure such agreements are reflected in writing and not just a matter of practice a district might repudiate as the new complexities in Title IX practice become better known.  As important, the role of the coordinator is fleshed out to a greater degree.  The “due process” standards for Title IX investigations will be very important to your Title IX coordinator and contracting for this service may become a more common option.

 

  • Also important, the regulations anticipate that coordinators will conduct investigations, but then recommendations will be reviewed and acted upon by someone else, who will give both “sides” an opportunity to comment on the report, ask further (written) questions of witnesses, including “limited” follow-up questions, and then make an independent decision.  That is, you will need to be able to separate investigation from decision-making (and have both people understand their roles).  This can present a dilemma for smaller schools: having a CEO/Coordinator/Investigator who conducts the investigation and simply makes a decision is no longer workable.  And while the decisionmaker is armed with a full investigative report, they will need to also conduct some hearing-like or court-like supervision of the final rounds of written questioning, and then consider the significance of the answers given.  This is further “legalization” of the Title IX process and will bring complexity, tactical maneuvering, and delay in its wake.

 

There is much more to be mined in the 2,033 page notice of final rulemaking and from close reading of the new rules themselves.  For now, be aware that the fundamental rules of the road for Title IX have become a bit more forgiving for schools that learn of and handle minor incidents effectively; significantly less forgiving of any lack of procedural fairness to a victim or to a perpetrator (as measured against new rules); put more importance on knowing who your Title IX coordinator is, having his or her role well defined, having him or her well trained, and assigning this largely-investigative function to someone who is not required to make final decisions; and providing the necessary support and training to the person tasked with the last stage of the comment, questioning and decision-making process.

 

Finally, you will likely need to revisit internal sexual harassment, employee discipline, student discipline, and restorative justice policies to be sure these align with each other and with the new rules.  Again, these rules go into effect in August.

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