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The implementation of Title IX is constantly evolving. Since it was passed 48 years ago, the U.S. Department of Education, Office for Civil Rights (OCR), has issued a number of guidance documents which interpret Title IX and the procedures by which educational institutions investigate, adjudicate and resolve allegations of staff-on-student sexual misconduct.
Any change in interpretation and procedures has a direct impact on your school and its ability to comply with Title IX. You need to understand the current interpretation of the law.
On January 19, 2001 OCR released, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” The guidance explains an educational institution’s responsibility, as a condition of receiving Federal financial assistance, to take immediate and effective steps to end sexual harassment (and abuse by school personnel and students) when it occurs, prevent its recurrence, and remedy its effects. This guidance was reaffirmed in 2017 by the Trump administration.
In September 2017, the Trump administration rescinded the Title IX guidance that had been issued in 2011 and 2014 and issued new Q&A. This Q&A outlines how OCR will assess a school’s compliance with Title IX, including: grievance procedures and investigations; informal resolutions of complaints; decision-making; and, notice of outcome and appeals. With the rescinding of the 2011 and 2014 guidance, the DOE referred school districts back to the 2001 OCR guidance.
In November 2019, a draft of the proposed Title IX federal regulations being developed by the OCR was released. Some of the proposed changes include cross examination between the parties and providing detailed notice of the allegations in writing before any school interview of the accused.
On January 21, 2020 Brett Sokolow, president of the 3,500-member Association of Title IX Administrators, discussed his concerns for the proposed changes and what it may mean for K-12 schools and districts in an LA Times Op Ed article. As noted by Sokolow, these new federal guidelines would further reshape Title IX around the rights of the accused and make it more difficult for students to report complaints.
As we move into 2020, be on the lookout for new Title IX guidance in order to reduce the risk of harm and liability for your district, its students and staff.
Our team at McGrath is committed to helping you understand and comply with these updates so you can keep the people and district you care about safe from harm and liability. Over the coming weeks we will provide you with practical advice regarding your Title IX responsibilities including:
required grievance procedures
what makes for an adequate, impartial and reliable investigation,
requirements that you need to take to prevent similar occurrences, and
when you need to involve law enforcement with adult-to-student behavior.
Mary Jo McGrath, JD and Billie-Jo Grant, PhD are nationally recognized experts on sxl harassment and misconduct, having served as the expert witness in nearly 100 civil court cases of school employee sxl misconduct. They have trained more than 250,000 school district administrators and employees nationwide in how to have schools be safer, more effective learning environments.
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