We know just what you are thinking during this global pandemic: “You know what we should do? Let’s update our . . . Title IX policy?” Yeah, we know. Seems weird. But, the U.S. Department of Education issued new regulations that become effective August 14, 2020. There are a few things that we strongly recommend public school districts do to take steps to comply with the new regulations. We know you are busy and might want to skip ahead, so in this post we are going to cover (1) the need to adopt/update a Title IX Policy; (2) who is in your “Title IX team” and what administrator can do which job; (3) a summary of the notice requirements; (4) information about the training requirements in the new regulations; and (5) the deadline to get all this done.
Adopt/Update a Title IX Policy. The new regulations are very specific about what policies and procedures a school district must have in place to respond to allegations of sexual harassment. We recommend that you update your board policy to align with these new, detailed requirements. We have prepared a recommended Title IX policy that will bring your district’s policy into compliance with the regulations. We have also developed model forms and flowcharts to use throughout the Title IX complaint and grievance process. Districts that subscribe to the KSB Policy Service received a copy of this package policy earlier this week. For districts that are not policy service subscribers, we can provide these documents directly to you, together with a brief memorandum concerning implementation. Just send an email to ksb@ksbschoollaw.com to purchase a copy of this Title IX policy and forms.
Identify the Members of Your Title IX Team. The new regulations specify certain responsibilities that fall on different people. At a minimum, you will need to designate an employee as the Title IX Coordinator, and you will need to have some idea of who can and will serve as investigators, decision-makers, decision-makers for appeals, and (possibly) who will facilitate any informal resolution process. We recommend that you consider the various responsibilities for each role and then consider the people on your team (or outside entities like ESUs, administrators from nearby districts, or professional firms) that may fill those roles for you.
The most common question we are getting from folks who already have received our draft Title IX policy is, “Who should do what role?” The only hard and fast rules are (1) your Title IX Coordinator must be an employee; and (2) you cannot have the Title IX Coordinator or investigator also serve as the decision-maker or the individual who would hear an appeal. So the way that works out is often one of the following scenarios:
For districts that have a superintendent and two principals, there are many ways you can staff these positions. You may want to have the principals trained on all 3 positions: Title IX Coordinator, investigator, and decision-maker. You can designate one (probably elementary principal given most sexual harassment will occur at the high school level) as the Title IX Coordinator, who can also investigate but can’t be a decision-maker. The other can be the decision-maker for some cases and investigator for others, as needed. You may need a 3rd decision-maker in some situations, which is likely something you’d need anyway given the chance for conflicts of interest in a smaller community. Ensuring principals can be decision-makers as often as possible allows the same person to impose consequences on the student under Title IX and the state student discipline laws. In this scenario, the Superintendent would be your appeal decision-maker, and you may need a different employee, such as a counselor, to facilitate informal resolutions.
For districts that have at least one more administrator (such as Activities Director, Director of Student Services, Director of Curriculum, Assistant Superintendent, Assistant Principal, etc.), one of those administrators can be designated as the Title IX coordinator. Then one or more principals can be trained to be investigators and decision-makers as noted above, with the Superintendent serving as the appeal decision-maker.
For districts with only one superintendent and one principal, you will likely need to designate a guidance counselor or other employee to be the Title IX coordinator.
For districts with only one administrator, you will likely need to designate a guidance counselor or other employee to be the Title IX Coordinator, and you will likely need to contract with a neighboring school, ESU, or professional firm to handle other roles, as needed.
School districts can contract with other districts or ESUs for any of these positions except the Title IX Coordinator must be an employee of the school district.
Provide Notice of Your Policy. The new regulations require you to provide notice of your Title IX policy and your grievance procedure to a lot of people. This includes posting it on your website and including it in your handbooks. Once you have adopted your new policy and designated a Title IX Coordinator, you should provide these notices.
Train, Train, and then . . . Train Some More. A big part of your ability to show compliance with the new regulations will be demonstrating that your employees, coaches, sponsors, volunteers, and Title IX team are properly trained. The word “training” appears on 189 pages of the 2,000+ commentary accompanying the new regulations.
One of the most significant changes in the new regulations is expanding the people who can--on behalf of the school district--have “actual knowledge” of sexual harassment to ALL EMPLOYEES. That means that if any employee has knowledge of sexual harassment in the school’s program or activity, then the district will be deemed to have such knowledge (triggering the district’s responsibility to not be deliberately indifferent to such sexual harassment). As a result, we recommend that you train all employees, board members, coaches, sponsors, volunteers, and agents of the school district on (1) identifying sexual harassment, (2) reporting allegations of sexual harassment.
There are also specific training obligations for members of your Title IX team, such as knowing when a report must be investigated, determining whether a complaint must be dismissed, carrying out an investigation and decision-making process free of bias or conflicts of interest, applying concepts of relevancy to a decision, and preparing related written reports and decisions. One additional weird quirk in the regulations: you have to post the actual training materials (including any videos and written materials) on your website. So you’ll need to make sure that whoever provides your training will let you do that without complaining of a copyright violation.
KSB School Law will offer training to meet all of these requirements. The format will be online, where individuals can be trained at their own pace and on their own schedule. We'll also be able to track individuals that have completed the training, and provide that list to districts. We believe that this is the most convenient way to help school districts and staff, and that is even more true during the COVID-19 pandemic. More details about signing up for this Title IX training is accessible here.
Does this ALL have to be done by August 14? In a perfect world--you know, a world in which you were not on version 88.9 of your revised and amended re-opening plan--you would have your new policy in place, sent notice out to the world, have your Title IX team identified, and completed all of the necessary training. Unfortunately, 2020 is not consistent with that ideal world. We do believe that you should have the policy adopted, notice published, and your Title IX team identified.
We have been asked whether districts should delay adopting the new Title IX policy in hopes that a lawsuit may delay implementation. We disagree with that approach. We strongly recommend adopting the policy prior to August 14. For one reason, a failure to have an updated policy in place will be a violation of the regulations. For another reason, even if a lawsuit or regulatory action later suspends the new regulations, having a compliant policy in place should not have a negative effect on the district. If/when the new regulations are suspended (which is pure speculation), the district could choose to depart from the requirements of the updated policy and not necessarily violate the suspended regulations (because they would be suspended) or simply readopt the previous policy. In short, there is very little (if any) downside to adopting a compliant Title IX policy, and the failure to do so could create problems for the district--both in terms of drawing OCR’s ire as well as subjecting the district to potential liability for money damages.
If you had to choose between training everyone and adopting the new policy, we recommend adopting the policy before August 14 and then doing the training later. In terms or prioritizing the training, it will be most important to have all of your employees trained as soon as possible, and your Title IX team aware of their new responsibilities. If you can’t have your entire Title IX team trained by August 14, that is just a practical consequence of the Department of Education making these regulations effective when they did. Just try and get everyone trained as soon as possible. Perhaps most important will be that you respond to allegations of sexual harassment on or after August 14, 2020 in accordance with the new regulations.
If you have any questions about the new Title IX regulations, our recommendations, your implementation plans, or getting your employees and Title IX team trained, please contact Karen, Steve, Bobby, Coady, Jordan, or Tyler at ksb@ksbschoollaw.com or (402) 804-8000.