The seriousness of sexual harassment, violence and abuse that happens in and among our educational system is a very unfortunate and sad foregone conclusion. But the Department of Education hopes to better protect students and faculty with the May 6, 2020 release of its new Title IX sexual harassment regulations.
This is a vast simplification of what the new rules entail, but here’s a brief overview — federally-funded educating bodies must provide safe and simple sexual harassment and violence reporting practices for its students and faculty. They must also conduct impartial investigations and they must come to reasonable resolutions based on facts learned during due-process investigations. All three of these functions must be performed by different persons or bodies. Schools must provide new faculty and staff training and provide effective communications with parents, students and their employees.
Despite wide scrutiny surrounding some of the particulars, and having already been challenged in court, every educational institution that receives federal funding – all public primary and secondary schools, as well as most colleges and universities – must comply with the new rules by August 14, 2020. For many public education systems still reeling from the effects of COVID19, this is looking like quite a tall order. Nonetheless, as R. Shep Melnick writes for Brookings:
Since the new rules have gone through the rigorous APA rulemaking process, they are unambiguously legally binding. They establish what educational institutions must do and cannot do – not what might be a good idea.
So, the question becomes – how will schools and school systems that are in the midst of a COVID19-induced educational logistical nightmare have the bandwidth and capacity to implement such changes (and in some cases, drastic changes) in just a couple of months’ time?
The Challenges for Schools
Federal law previously required the presence of a Title IX coordinator for all schools, and the largest colleges and school districts generally already have a Title IX-dedicated office (the Department of Education made no secret of its intentions over the past couple of years). Still, the procedures and responsibilities within these large institutions and district offices will likely need to shift and/or re-structure to meet new regulation requirements successfully.
Primary and secondary publicly-funded school systems (and many postsecondary schools) are a bit trickier. For one, regulations will be new to many districts and require some navigation and understanding – this is the first time many of the requirements have been explicitly stated. Second, we are talking about hundreds, and even into the thousands, of individual schools that may fall under just one public school system. Consistent and successful implementation and execution of new policies across various school populations will be difficult, but necessary. Sooner or later, not complying with new regulations increases schools’ risk of legal ramifications. According to Crowell Moring –
Based on our years of experience counseling and litigating in this area, absent a court-ordered injunction or other agreement by the Secretary to forestall implementation and enforcement, schools will need to adapt their procedures to reflect the new Title IX reality. Institutions should strive to come into compliance quickly to deter restraining orders or other litigation by respondents or complainants challenging the school’s handling of their cases.
A May 22, 2020 decision delivered in federal court in the Eastern District of Pennsylvania provides a good example of the importance in complying with regulations.
What Schools Need To Do
Here are some first steps schools should take to ensure their policies and procedures are in accordance with new Title IX regulations:
- Read the new regulations carefully. You will find some high-level takeaways below. You can also find a good summary provided by the Department of Education here .
- Review your current Title IX policy in detail and identify and evaluate areas of alignment and areas of misalignment.
- Identify the roles and responsibilities of the required three key bodies: Title IX Coordinator, Investigator and Decision-Maker.
- If you don’t already have these three separate roles in place, you need them. Using a third party (like Work Shield) that is already equipped to manage the roles of Title IX Coordinator and Investigator is a good place to start – no training required, quick and easy implementation, and you always get a consistent and equitable response that won’t be subject to questions later.
- Define your reporting process and make sure it is user-friendly, easily-accessible and well-publicized. Again, using a third party (like Work Shield) that is already equipped to manage the reporting process is a good idea.
- Provide timely and easily-accessible information to all parents and students about how to report sexual harassment and discrimination and what to expect should it happen.
- Distribute and conspicuously post information and conduct training regarding the approved Title IX policy and procedures.
No matter what, the Department of Education expects all federally-funded educational institutions to be in compliance with new Title IX regulations by August 14, 2020. And, students (and their parents) expect to be able to enter the fall school semester (virtually or in person) and know that their safety is protected.
A Few Significant Aspects of New Title IX Legislation
- Schools must provide a clear, well-publicized and easy-to-use reporting system.
- Three separate officials must be involved in any incident investigation process – a Title IX Coordinator to receive reports; an impartial investigator to gather facts and conduct interviews; and a decision maker who determines sanctions and remedies. Decision makers cannot be employees of the Title IX coordinator.
- At the beginning of an investigation, a school must provide both parties with a written explanation of the allegations with “sufficient details known at the time and with sufficient time to prepare a response before any initial interview.”
- Colleges and universities must allow cross-examination of the complaining and responding parties and any witnesses during a live hearing (not necessarily for primary and secondary schools).
- The same standard of proof must be applied to all sexual harassment cases (ie, faculty and staff cannot be subject to a “clear and convincing evidence” standard while students are judged on a “preponderance of the evidence” standard.
- Sexual harassment is given a more narrow definition – “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.”
- Any form of quid pro quo harassment, sexual assault, stalking, domestic violence and dating violence now constitute sexual harassment.
- Colleges must provide publicly-accessible Title IX training to all faculty and staff.
- All primary and secondary teachers and staff are considered “mandatory reporters” – they are required to report any allegations of misconduct that they have witnessed or heard about. For colleges and universities, the burden of reporting lies with the students themselves (though teachers and staff are still allowed to report misbehavior).
About Travis Foster
Travis heads up Work Shield’s legal department and is known to be something of a jack of all trades – he is an experienced entrepreneur, as well as an attorney with a mechanical engineering background who designed and managed projects in both the energy and public utilities industries. Travis also contributes his wealth of capital knowledge and growth strategies for businesses to the Work Shield team.
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