ATIXA, the Association of Title IX Administrators where I serve as president, wrote an Op-Ed at the end of February, previewing the coming Title IX regulations. Those regulations have been published, and a compliance deadline of August 14, 2020, now looms.
We’re keeping close tabs with our K-12 members, and they clearly have Title IX compliance on their radar screens. In fact, we’ve welcomed more than 200 new K-12 members to ATIXA since the regulations dropped. Among our members, there is a sense of panic and despair about the regulations, given that many schools are struggling to figure out how to operate in a COVID-19 environment, and whether they can welcome students back safely.
With existential threats at our door, Title IX can’t be prioritized, though the Department of Education is increasing the pressure with a new K-12 enforcement initiative. Even if administrators wanted to prioritize Title IX, the resources available are much more limited, now. The resulting paralysis means some administrators aren’t even sure where to start.
There is a lot of content being written about Title IX right now that is being directed at school administrators. It can be hard to decide which content is useful to you. ATIXA is writing to you in this Op-Ed for two reasons, only. One, we want to offer you this roadmap for where to start in compliance with the new rules. Two, we want to address the three most common misconceptions that seem to be interfering with a clear understanding of what the new regulations require. Our phones have been ringing off the hook, metaphorically, with calls from school district attorneys looking for expertise and answers. From them, we’ve gleaned that the three most common misconceptions they hold relate to:
- The live hearings requirement;
- The cross-examination requirement; and
- The duty to appoint advisors to the parties in a sexual harassment complaint.
Fortunately, these misconceptions are easily dispelled, and it’s all good news for our K-12 colleagues, who have more than enough on your plates already. These three provisions apply to postsecondary institutions only, not to K-12. We understand why the regulations may be confusing on this point, and why they are easily misread, so let’s briefly address each provision in turn.
Are live hearings required in public K-12 schools?
Of course they are. Since Goss v. Lopez was decided by the Supreme Court in 1975, public K-12 has been required to provide hearings for students in cases that could result in suspension and expulsion. Nothing about the regulations has changed this bedrock legal mandate. The Title IX regulations express that if schools are already required to provide hearings, they’ll need to apply those hearings to Title IX sexual harassment cases, too, but the regulations add no new or additional hearing requirements for K-12. If a sexual harassment complaint under Title IX isn’t going to lead to suspension or expulsion, and district policies don’t already require a live hearing to address them, you’ll be able to address them through the informal administrative mechanism for exchange of written questions that the regulations describe.
However, if district policies already provide for due process and some kind of live hearing for serious misconduct allegations like sexual harassment, you’ll want to keep your live hearing policy and procedures in place. They will likely need some fine-tuning to ensure they meet regulatory standards, such as provisions on how past sexual behavior and predisposition of the complaint are excluded or admitted as evidence. What the regulations don’t do is tell K-12 schools that if they hold live hearings, the live hearings provisions of the regulations apply to them. They don’t. Again, they apply to postsecondary institutions only. Thus, requirements to appoint advisors to conduct live cross-examination don’t apply. More on this just below.
What districts will struggle with is the question of what to do with existing suspension and expulsion hearing procedures. In talking with many school districts, they are unclear if they can use these procedures to satisfy Title IX, or whether they have to develop a secondary set of “Title IX” hearing policies and procedures. ATIXA strongly encourages you not to reinvent the wheel. Adapt your existing policies and procedures with a set of additional regulations-based rules that will apply to suspension and expulsion hearings when a Title IX complaint is in issue. There is a legal risk that we’ve been discussing with the school lawyers, that can arise when a district uses two very different processes to address suspension and expulsion cases based on the type of misconduct alleged, and we discourage this approach. Existing hearing processes can and should be adapted for Title IX purposes, to minimize the differences between expelling a student for drug distribution versus sexual assault, for example.
Is direct cross-examination required?
No, it’s not. Many of the dozen school lawyers who’ve reached out to ATIXA recently to discuss the regulations have been under the impression that if a school offered a Goss hearing (such as in suspension or expulsion cases) that even if the regulations did not require such a hearing, once one was required by district policy, the cross-examination requirements of the regulations would apply. This is inaccurate, based on ATIXA’s interpretation of the regulations. Instead, the regulations provide two directives on this question. First, they explicitly require what districts would likely refer to as informal administrative decision-making, as opposed to the due process-based Goss hearing. The process can be an entirely written exchange, with the regulations requiring only that districts, “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Then, the designated administrator makes a determination as to whether policy was violated.
This is then subject to a required appeal in the regulations, which may obligate a district to devise a new appeal process or use existing discipline appeal mechanisms that often are heard by a more senior administrator or school board, depending on the potential outcomes. This will require specialized Title IX training for appeal officers, as well as the training the regulations require for administrative decision-makers, and investigators.
So, whether the conduct falls short of suspension or expulsion, or a Goss hearing is required, the informal exchange described above and in the regulations will suffice for Title IX purposes. There may be state, board, or district level requirements for more formality, and those should be respected and applied to Title IX processes, if applicable, but are not strictly required for Title IX compliance.
Second, the regulations repeat that:
The Department appreciates commenters’ support for § 106.45(b)(6)(ii) Making hearings optional for elementary and secondary schools while providing opportunity for the parties to submit written questions and follow-up questions to other parties and witnesses with or without a hearing. The Department agrees that this provision ensures due process protections and fairness while taking into account that students in elementary and secondary schools are usually under the age of majority. Thus, the Department declines to mandate hearings and cross-examination for elementary and secondary schools¦
The regulations continue:
If an elementary and secondary school recipient chooses to hold a hearing (live or otherwise), this provision leaves the recipient significant discretion as to how to conduct such a hearing, because § 106.45(b)(6)(i) applies only to postsecondary institutions. The Department desires to leave elementary and secondary schools as much flexibility as possible to apply procedures that fit the needs of the recipient’s educational environment¦
This significant discretion provision combined with the quote above lead to the third and final myth to be addressed, the provision of advisors.
K-12 schools not required to provide party-advisors
Because postsecondary institutions must hold live hearings with cross-examination, OCR wound up with a rather tortured approach to ensuring the parties at the hearing have advisors to conduct the cross-examination, adding a provision that requires the institution to provide the parties with advisors if they don’t have them already. The district lawyers we spoke with had reasoned that while K-12 was not mandated to have hearings, once they opted to have them (or had to have Goss hearings), the cross-examination requirements would then apply, and thus so would the appointed advisor requirement. But, as has been shown by the quotes above, the regulations do not require direct cross-examination, thus leaving K-12 with only the obligation to ensure that the parties have the right to an advisor of their choice, but with no requirement to provide, appoint, or train district-level advisors for the parties.
The requirements of the regulations are onerous enough for K-12 without reading into them additional compliance mandates that ED did not intend to extend to K-12. For additional compliance resources please visit the ATIXA Regs Rapid Response Resource Center.
Brett A. Sokolow is president of ATIXA, the Association of Title IX Administrators. Contact him at [email protected].