Amid the COVID-19 pandemic, while principals were focused on meeting the immediate needs of their school community, former U.S. Secretary of Education Betsy DeVos finalized the new Title IX rule on sexual harassment in K–12 schools and institutions of higher education in May 2020. NASSP submitted comments in opposition of the draft rule, which we felt would lessen protections for assault victims and hinder the ability of schools and educators to properly address claims of sexual assault. We also were strongly dismayed that the new rule became effective in August 2020, as school leaders prepared for the beginning of a new school year.
On March 8, President Biden issued an executive order on sex discrimination announcing that, within 100 days, all federal agencies would review existing regulations, orders, guidance documents, policies, and any other similar agency actions that may be inconsistent with the order. The U.S. Department of Education Office of Civil Rights (OCR) followed up with an April 6 announcement that it would undertake a comprehensive review of the Title IX rule “by gathering the public’s views and insights on the issue of sexual harassment in school environments.” As part of the review, OCR plans to hold a public hearing to hear from educators and students and seek written comments through a new notice of proposed rulemaking.
Here are some of the key provisions of the new Title IX rule:
- K–12 students may report a Title IX claim to any employee at their school. School leaders must respond whenever any employee has notice of sexual harassment or allegations of sexual harassment, so there is no need to distinguish among employees who have “authority to redress the harassment,” have the “duty to report” misconduct to appropriate school officials, or employees who “a student could reasonably believe” have that authority or duty.
- School leaders are required to ignore all reports of in-school sexual harassment where the student has not yet been “effectively denied” equal access to a school program or activity.
- School leaders may now investigate Title IX incidents that occur off-campus as long as “the school exercises substantial control over both the respondent and the context in which the sexual harassment occurs.” While it is possible for school leaders to address sexual misconduct that occurs outside their education programs or activities, they are not required to do so, and in some circumstances would be prohibited from investigating these claims. There are also restrictions that would prohibit a district from investigating online sexual harassment.
- School leaders are required to start an investigation with the presumption that no sexual harassment has occurred, which may cause victims of sexual harassment or assault to under-report incidents.
- While a “live hearing” process in not mandatory in K–12 schools, school leaders must send an investigative report to the parties before reaching a determination regarding responsibility. Each party must be afforded the opportunity to submit written, relevant questions that it wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.
- While school leaders may continue to use the “preponderance” standard, they may be forced to use the “clear and convincing evidence” standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty. This is a new and higher standard than what most school districts used previously.
- School leaders must offer both parties the right to appeal the decision.
- School leaders may not require the parties to participate in informal resolution and may not offer informal resolution unless a formal complaint is filed. At any time prior to agreeing to a resolution, any party has the right to withdraw from informal resolution and resume the grievance process with respect to the formal complaint. School leaders must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
In preparation for the public hearing and submission of our written comments, NASSP seeks input from principals about: 1) your general awareness of the new Title IX rule; 2) what kind of training you received on implementing the new procedures on sexual harassment and assault; and 3) your recommendations to modify the existing rule, especially as the regulations pertain to middle level and high schools.
Please submit your comments to Amanda Karhuse, director of the NASSP Policy & Advocacy Center, at [email protected].
NASSP will coordinate with the national organizations representing superintendents, teachers, and parents in submitting joint comments during the public input period (which has not yet been identified). We thank you in advance for your input!