ATIXA, the Association of Title IX Administrators where I serve as president, anticipates publication of new final Title IX regulations in the Federal Register sometime between now and April. The Office for Civil Rights (OCR) last issued Title IX regulations in 1975, so this is somewhat unprecedented.
The proposed changes are far more sweeping than the 2011 Dear Colleague Letter promulgated by OCR. Most significant and unlike in 2011, the changes are also pointed at pre-K through high schools—not just colleges and universities.
Those who have read the draft proposed Title IX regulations published in November 2018 likely came away with confusion over the tone. OCR seemed to be planning simultaneously to subject K-12 schools and districts to onerous new rules while also communicating that OCR would be disarming itself of some of its most commonly used enforcement tools.
On Wednesday, February 26, OCR issued a clear call for enhanced enforcement over K-12 noncompliance with Title IX, and increased vigilance by OCR over school compliance. That announcement is here. It specifically targets sexual harassment and assault, and is a clear indication that OCR is not backing off of its enforcement priorities. It is stepping them up.
While most administrators grasp Title IX’s applicability beyond gender equity in athletics, the proposed Title IX regulations focus exclusively on sexual misconduct in school settings, involving students and employees. If you think you know how to conduct investigations of sexual harassment, sexting, sexualized bullying and even sexual assault, you may be surprised by the requirements for investigation that OCR is poised to impose.
What will these changes mean for schools?
At present, most schools and districts address allegations of sexual misconduct with investigations that are swift, informal and cursory, compared with the vision for investigations that OCR has incorporated into the new regulations. At times, a building-level supervisor such as a vice principal plays an informal role in the Title IX investigation. They meet with the students or employees involved, obtain evidence that is readily available, take notes, and then make a decision. Or administrators defer to law enforcement or SRO investigations when the behaviors have a criminal element.
If you think you know how to conduct investigations of sexual harassment, sexting, sexualized bullying and even sexual assault, you may be surprised by the requirements for investigation that OCR is poised to impose.
The new regulations require formalizing the Title IX roles of administrators; place a central Title IX coordinator in a position of district authority; do not allow schools to solely defer to law enforcement investigations; and mandate that investigations be thorough, prompt and reliable.
Each investigation will have to identify all possible witnesses and evidence, include comprehensive record keeping, and produce a report of findings. We’ll be looking at text messages, instant message records, Snaps, photos and video. We’ll also need to deliver the report to the parties through a secure technology of some kind. And the parties will now have a right to a copy of the report.
OCR envisions that formal notice will be sent in writing to the parties to a complaint, prior to interviewing them—no more simply summoning a student to the vice principal’s office.
OCR is giving the parties the right to an advisor throughout the process, such as a parent or an attorney. OCR is also creating transparency by giving the parties the right to access the evidence that the district has obtained during the investigation.
And, you’re now going to have to write a comprehensive report that summarizes all evidence and findings. That report will be exchanged between the parties prior to a final determination, and they’ll have the opportunity to provide comment.
As the investigation process moves to the resolution and final determination step, you’ll have to follow district and school procedures that either provide for an administrative determination or a hearing of some kind. But before you decide whether district policies have been violated, you’ll need to allow some mechanism for the parties to ask each other questions, and to put those answers on the record. Once you render a decision, a formal letter of outcome must go to the parties, detailing your rationale for your finding and any sanctions imposed. This process will apply to student-on-student cases and cases involving district employees.
OCR also aims to rewrite your definitions of sexual harassment for greater clarity and precision, and to require schools to address not only sexual harassment under Title IX, but also stalking, intimate partner violence and sexual violence. The common school approach of sweeping sexualized harassment under a bullying framework won’t work, though sexualized bullying that is sufficiently severe will be encompassed within the behaviors covered by Title IX.
What should schools do now?
We at ATIXA suggest that schools continue to honor best practices commonly adopted by the education field, while moving gradually toward implementing the changes that the regulations will require.
Some changes, including equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for schools to provide broad-based supports and resources to victims of sex discrimination, such as counseling services and academic accommodations. So, for example, schools can be intentional now about assuring that responding parties have the same access to counseling services as schools provide to reporting parties. If schools extend academic flexibility to those who survive sexual violence or harassment, upon request, they would extend similar flexibility on assignments, exam extensions, etc., to those who are facing the difficulty of navigating resolution proceedings as the accused. OCR is making clear its expectation that the supports and resources we extend are offered to all parties equitably.
Schools and districts need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed.
Once the regulations are released, there will be an implementation grace period of perhaps 60-90 days from publication of the final rule to give schools time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.
What should schools do when the regulations are published?
Schools need to move toward compliance and/or decide to litigate the validity of the regulations. Many interest groups have already announced their intentions to sue to block the new rules.
OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice and comment period. The pressure is on for it to make it clear in its responses that its rules are rationally related to the statute.
Once OCR publishes the final rule, it will expect good faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, schools will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, schools will need to become compliant.
Perhaps the healthiest mindset is to view the regulations mostly as setting a floor for compliance and to commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside of it, where we can.
Brett A. Sokolow is president of ATIXA, the Association of Title IX Administrators. Contact him at [email protected].