At long last, on Wednesday the U.S. Department of Education released the final rule containing changes to the Title IX regulations. The regulations are set to become effective on August 14, 2020, right as we’ll be reopening (maybe?) school for the 20-21 year.
You can see the news release and read all of the summary documents and the full final rule by clicking here. If you didn’t know this process has been in the works since November 2018, why did you pick the middle of a pandemic to come out from under your rock?! After 18 months of work on the new regs, in addition to a 1-hour YouTube video there are about 2,100 pages of rules, summaries, and guidance.
All of this will ultimately be boiled down into about 40 pages of actual regulations, then interpreting how best to implement them and what they require. We don’t have great answers yet. At KSB we try very hard to get our clients the information they need without causing unnecessary panic or creating work for you when it might not be needed just to rush to market. COVID-19 has proven an interesting test of that philosophy, and in our opinion these Title IX regulations will require the same deliberation for legal and practical reasons. Plus, no one has read all 2,100 pages since Wednesday!
To be clear, if these regulations are implemented as released they will take a lot of work from lawyers and administrators both prior to August 14 and once they are in effect. They will require substantial changes to policies and handbooks. They will require significant training for all staff. They will require several administrative staffing and duty assignment decisions. They will create practical problems that will be tough to solve without collaboration, especially for smaller schools. We’ll cover all of that in the coming days, weeks, and months leading up to August 14. For now, our advice is to stop and take a deep breath (at least 6 feet away from anyone else). You’ve got plenty to tackle right now.
We also need to see if these regulations actually become effective on August 14. As we type, there are dozens of attorneys, advocacy groups, and legislators preparing lawsuits and political strategies to stop the implementation of these regulations. We’ve been digging into the regulations since they were released, but we know 3 months is an eternity in politics and federal court lawsuits--especially during a pandemic. It may be that the effective date is ultimately put on hold by federal court injunctions or Congressional action. We’ll see. Part of our assessment for rolling out policies, training, and other guidance will include tracking these developments closely. Anyone remember the FLSA regulation saga from a few years back when you all amended your classified staff contracts for salaried employees and then that Texas judge stopped them cold a few days before they became effective? Yeah, us, too...
For now, here is a quick recap of some of the high and low points in the new regulations, and some key questions we’re digging into:
The regulations narrow the definition of “sexual harassment” and formally adopt the “deliberate indifference” standard. These changes are more in line with federal judicial decisions than with past OCR enforcement positions. Since most Title IX issues are handled through OCR and not litigation for our clients, this will be an important change.
The regulations appear to make “any employee of an elementary or secondary school” someone who can trigger the school’s Title IX obligations. This is a huge change from the previous regulations which limited “responsible employees” to those with authority to take corrective action. Arguably, every school employee now needs much more substantial Title IX training.
The regulations clarify that the Title IX Coordinator must provide non-disciplinary “supportive measures” (formerly called “interim measures”) and must have the authority to implement “corrective measures,” including discipline, as part of the process. The supportive measures must be made available to both parties and “may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.” In some circumstances, these measures will contradict a student’s IEP or 504 plan in ways that will likely require even more team meetings for students with disabilities involved in the new Title IX processes.
The new Title IX “grievance process” will require at least 3 people: a Title IX Coordinator (who must be an employee), an investigator, and a decisionmaker--all of whom must be different people. Then, both the victim and the accused must be afforded an “appeal procedure,” so that’s probably the superintendent (or the school board) who will hear the appeal and arguably shouldn’t be part of the initial grievance process. That’s not to mention meeting the requirements of state student discipline laws. In Nebraska, for example, the Student Discipline Act process could take at least one principal, an impartial hearing officer, and the superintendent. So, there’s at least an argument that the Title IX grievance process combined with the student discipline process may require a minimum of 4-5 but as many as 8 different people to accomplish the due process and impartiality requirements of the laws. One of our priorities at KSB is figuring out practical steps that schools with fewer than 8 administrators can take to comply with these requirements.
The new Title IX investigation and decision making process also requires very specific timelines and steps. The accused party must be given notice of the complaint and “sufficient details” along with “sufficient time” to prepare for the initial investigative interview. After an investigation is complete, both parties and their representatives must be given electronic or paper copies of all evidence, and they have 10 days to review and respond to it. The investigator then compiles an investigative report, which is given to both parties. Once the investigative report is complete but prior to any final determination, the parties have another 10 days to respond to the investigative report, including the ability for the parties to ask written cross-examination questions to the other party. How is that going to work with a couple elementary school students? After all this, the decision-maker then compiles the final decision, which is shared with both parties, and the appeal process begins.
By our count the new regulations require a minimum 23 days to complete the Title IX investigation and decision making processes. This will be very difficult to square with the procedural requirements in student discipline laws, the IDEA, Section 504, and others. That’s not to mention trying to pull off all of these processes given accessibility concerns for students and parents, in terms of age, disabilities, language barriers, and others.
We will continue to review the regulations and plan to provide more thoughts on how they will affect your policy and training schedules soon. For KSB Policy Service subscribers, we are working on policy updates throughout May. With the disruption to the operations of the Unicameral and Congress and now these new Title IX regulations, we are working on the best way to structure policy and handbook updates this year to reduce your workload. More on that to come, as well. For now, if you have any questions about the new Title IX regulations or want to talk about tentatively scheduling training and things like that, contact your school attorney or contact us at KSB (ksb@ksbschoollaw.com)!