Quick quiz for all K-12 school administrators. What is your first response if any of the following occurs?
A kindergarten student reports that a 3rd grade student has touched her inappropriately while on the bus;
A middle school student reports that his ex-girlfriend is circulating nude photos of him at school, mocking his physique;
A high school student reports that her math teacher looks at her chest when she asks him questions about her homework;
A teacher reports that the school’s cook has been sending him sexually suggestive text messages that make him uncomfortable.
Under revisions to the Title IX regulations which the US Department of Education’s Office of Civil Rights is proposing, your immediate response to each of these (unfortunately common) situations will need to change fairly dramatically.
OCR released a Notice of Proposed Rulemaking on Friday, November 24, 2018. OCR also released a summary of the proposed changes and a press release on the same date. Although most of the media coverage of these new regulations has focused on how they will affect institutions of higher education, we interpret these draft regulations as actually making much more significant changes in how K-12 schools must respond to allegations of sex harassment and sex assault.
We have prepared this quick summary of nine things every K-12 administrator should know about these proposed regulations.
1. Adoption of the Deliberate Indifference Standard. First the good news for schools. The draft regulations make clear that a school district will not be penalized by the Department of Education unless it is “deliberately indifferent” to allegations of sex harassment (which includes sex assault). The Department promises it will not penalize an institution unless its response to allegations of sex harassment is "clearly unreasonable." This has long been the standard used by courts in assessing Title IX claims.
2. Filing Formal Title IX Complaints. The proposed rules state that schools will only have to investigate “formal complaints,” which are defined as written documents which must be signed by the complaining student or the Title IX coordinator. At first this would seem to reduce the number of Title IX investigations which K-12 schools conduct, since most K-12 schools receive very few formal, written Title IX complaints. However, the regulations would now require Title IX coordinators to file formal complaints on the student’s behalf in many situations. It appears that a school’s Title IX coordinator would be required to file a formal complaint if (1) the school has actual knowledge of multiple complaints against the same respondent; or (2) the reported conduct could create a hostile environment even if the student who is complaining does not wish to make a formal complaint. In each of the examples listed above, we believe that the Title IX coordinator would be obligated to file a formal complaint, regardless of what the victims or their families wanted to have happen.
3. Single Investigator Model Prohibited. In the vast majority of school discipline situations, K-12 schools use a “single investigator model.” That means the same administrator investigates alleged student misconduct, determines what happened, and then imposes discipline on the students involved. The proposed Title IX regulations would not allow schools to use a single investigator model in investigating allegations of sex harassment or sex assault. Instead, the district will have to bifurcate its process into a formal investigation and then a final decision-making process. This means that K-12 schools will now have to train at least two (and possibly three) administrators on the new Title IX regulations. The draft regulations clearly state that the decision maker must not be the Title IX coordinator or investigator. This also means that if your school has designated the superintendent as the Title IX coordinator, you will have to identify (and train) another staff member to serve in that role so that the superintendent can be the decision-maker. This will also complicate student discipline under state law, which is often initiated by the principal and reviewed later in the process by the superintendent.
4. The Formal Investigation. After a written complaint is filed, the district is obligated to begin a formal investigation. The proposed regulations have detailed rules for this investigation. For example:
At the outset of the investigation, the investigator must give a detailed notice to both parties in writing that includes a wide range of information including the names of the parties and the location where the events allegedly occurred; a statement that the respondent is presumed innocent of the conduct alleged; and a statement that false reports will subject the complainant to discipline, among other statements.
Before the investigator interviews the students, they must be allowed sufficient time to prepare and they must be allowed to have someone present with them when they are interviewed. This is a marked difference from the standards required for student discipline under what’s commonly referred to as “Goss v. Lopez” due process.
Both students must be allowed to ask questions and follow-up questions of the other party. K-12 schools may allow this questioning to happen either at a live hearing or by giving both sides the chance to ask their questions in writing.
While the investigation is going on, neither side may be prohibited from talking about the investigation.
5. The Formal Decision. After the formal investigation is done, some staff member up the chain of command must make a formal decision about the allegations, and this also requires a written document. (In case you are keeping track at home, that is now the third new document that the regulations would require.) That decision must contain specific information and be provided to both parties simultaneously.
6. Appeals. The regulations do not require the school district to allow an appeal from the final decision in a Title IX investigation. However, they do state that if a school allows one party to appeal it must allow both parties to appeal. We are still analyzing if this means victims must be allowed the same appeal process that students are entitled to under state student discipline laws.
7. “Safe Harbor.” The regulations state that these new due process requirements are a “safe harbor” to prove the school has not been deliberately indifferent to claims of sex harassment. We are not sure exactly how the OCR views this safe harbor. Will OCR automatically find a school deliberately indifferent if the district doesn’t even try to meet the investigation guidelines? Will OCR dismiss complaints if you prove you’ve met them? Or will they still look act the actual facts of the situation to be sure you have done things they way they want you to them, including whether your decision is the “right” one or not? We just don’t know at this point, until we see the final regulations, and even then we may not have clear answers.
8. Investigation Timelines and State Student Discipline Laws. The timelines in the due process safe harbor procedures mean that Title IX investigations must take at least 30 days to complete. They also appear to require schools to involve at least two and possibly three school officials in the process. It is unclear how these new processes will interact with individual state student discipline laws. We get calls every day in which a student has engaged in misconduct which could be basis for student discipline as well as a Title IX complaint. Although the regulations do allow schools to exclude students on an emergency basis if they are given an “immediate” opportunity to challenge the exclusion, “immediate” is not defined and may conflict with state laws on emergency exclusion and student discipline.
9. Application to Employees. The draft regulations specifically state that they apply to both students and employees who are complainants and respondents in a Title IX investigation. We are still analyzing exactly what that means in practice.
For example, in the “math teacher” scenario above, would the principal be unable to issue a written reprimand to the teacher until a formal Title IX investigation has been completed? Does that give the teacher access to all the student complaints about him, possibly violating FERPA Does that mean we cannot prohibit the teacher from confronting the students about their complaints?
In the teacher/cook scenario above, do the new regulations provide the cook with due process rights that she would not otherwise have? If the teacher files an NEOC complaint alleging sex harassment under Title VII, does that mean the Title IX Coordinator must also file a Title IX complaint? There are not any satisfactory answers to these questions at this point.
The next step is for the Department to issue actual proposed regulations and publish them in the Federal Register. That could happen any day now. Then, there will be a 60-day comment period on the proposed regulations. The agency will review the comments and finalize the regulations in a manner that should take those comments into account. However, in reality the majority of proposed regulations are implemented as “final” even after the comment period. To be candid, we do not believe the draft or final regulations will differ substantially from what is outlined in the proposed rule documents linked above. Agencies typically do not put 150 pages together only to change their mind, and they had other more collaborative approaches they could have used to make new Title IX regulations.
We will be waiting to advise our clients on their specific options with respect to the new due process safe harbor procedures, and the impact on student discipline laws, until we see the proposed regulations and ultimately the final regulations. However, school districts must be ready to quickly and significantly revise their policies and practices. Often times, the proposed regulations are put into practical effect as a placeholder, especially since they are deemed to be an administrative “safe harbor.” This means that schools should consider training for relevant employees on the new regulations as soon as they are released so that schools are ready to implement their new Title IX obligations quickly.
KSB is still mulling over whether we should submit comments addressing the impact of the proposed rules on K-12 schools. If you have specific thoughts on the proposed rules, or the draft regulations when they come out, we encourage you to send them to us and/or on to the Department of Education. In the meantime, we plan to address the draft regulations in our annual Title IX training on February 12, 2019 (you can sign up here). If you have traditionally only had one of your administrators participate in the training, a good first step in getting ready to comply is to have a second administrator sit in on the webinar (and there is no charge for extra people in your district to attend). We will also have revised policy considerations ready for KSB Policy Service subscribers to adopt as soon as the final regulations are issued.
If you have thoughts or comments about the proposed rules or would like to discuss the rules further, please contact Karen, Steve Bobby, Coady, or Mandy.