Are You Ready to Implement Title IX Regulations?
On May 6, 2020, the U.S. Department of Education released long-anticipated Title IX regulations, which dramatically alter how K–12 institutions respond to and investigate Title IX complaints related to sexual harassment and assault. Title IX is becoming an increasingly challenging problem in K–12 schools, with over 9,700 incidents of sexual assault, rape, or attempted rape reported in public elementary and secondary schools in the 2015–16 school year.
These regulations, which also will apply to higher education, were crafted in response to the growing politicization of Title IX policy in higher education institutions and the Trump administration’s concerns that those accused of sexual harassment and misconduct were being denied their due process rights on college campuses. Since the Obama administration issued a 2011 Dear Colleague letter on Title IX, 600 lawsuits have been filed by alleged perpetrators that they were denied a fair process when they were accused of sexual misconduct on college campuses. As a result of this litigation, U.S. Secretary of Education Betsy DeVos rescinded the Obama-era guidance and sought to come up with federal rules on how students who report and are accused of sexual misconduct are treated under Title IX.
When the proposed regulations were published in 2018, The School Superintendents Association (AASA) and NASSP spoke out in opposition to them. Unfortunately, some of the concerns our organizations had with the proposed regulations are not addressed in the final regulations. These issues relate to concerns about the administrative burden these regulations pose for principals and school personnel, the complex processes school personnel would be required to follow, the need for professional development for the new personnel who are assuming Title IX duties, and overarching concerns with how these regulations may make Title IX complaints underreported and under-addressed by districts. The department gave school systems only until August 14, 2020, to begin implementing the regulations.
Initial Steps School Leaders Can Take to Comply With Regulations
- School leaders should update policies and handbooks to reflect the new definitions and requirements in the regulations, including who the Title IX coordinator is at the school and at the district level, as well as including a description of the grievance procedures to be used when complaints arise by students or employees alleging sex discrimination. Updates must include how students and employees can report and file a complaint, plus a description of how the school will respond and what kind of appeal processes exist.
- Schools should have a dedicated Title IX coordinator, and this person must be trained on the new and complex Title IX processes that are required under the law. School leaders must also designate someone to be an investigator and decision maker when Title IX complaints arise. This person is required to have professional development related to the definition of sexual harassment, how to investigate, how to serve impartially, and how to conduct relevance determinations.
- Schools must comply with the districtwide record-keeping process. The new regulations require the district to maintain certain records for a seven-year period. Examples of required record keeping include: documents pertaining to the investigation, appeal, and informal resolution; records of any actions, including any supportive measures, taken in response to a report of formal complaint of sexual harassment; and records of professional development training materials.
These are just a few of the steps that principals can take to meet the Title IX regulations. Still, there are thousands of pages of regulations to unpack, and school leaders should consider reaching out to their superintendents and school attorneys as well as the Association of Title IX Administrators for more detailed training and information about the regulations.
Outcomes Depend on Politics
One interesting note is that implementation of these regulations may depend on the 2020 presidential election. Democratic presidential nominee Joe Biden has affirmatively stated that he will immediately take steps to rescind the regulations if he becomes president. While rescinding the regulations would still require a notice and comment period, there is the possibility that if he wins the office, districts would need to follow these regulations only for the 2020–21 school year.
Groups such as the National Women’s Law Center and the American Civil Liberties Union, as well as state attorneys general, challenged the regulations in court to keep them from being implemented either partially or fully. Until the matter becomes clearer, it’s wise to plan to carry out the regulations as written. As with all federal regulations, if the district is found to be out of compliance, it could be investigated by the U.S. Department of Education or face lawsuits for noncompliance.
At a time when school leaders are experiencing the greatest educational challenge in history, the timing of these burdensome and costly regulations could not be worse. The only lingering question is whether they are on the books for a long time.
Sasha Pudelski is the advocacy director of AASA, The School Superintendents Association.