New Title IX Initiative Targets K-12 Schools Nationwide

On February 26, 2020, the U.S. Department of Education announced a new nationwide initiative that will bring heightened scrutiny to Title IX compliance in K-12 schools. The initiative will be led by the Department’s Office for Civil Rights (OCR), and came about as a result of a marked uptick in reported cases of sexual misconduct on K-12 campuses. According to the Department’s press release, within the last ten years the number of K-12 sexual harassment and sexual violence complaints filed with OCR has risen nearly fifteenfold. To combat this rise of sexual misconduct in the K-12 sector, the new initiative will comprise the following elements:

• Compliance Reviews: OCR will conduct nationwide compliance reviews in schools and districts, examining how sexual assault cases are handled under Title IX, including incidents involving teachers and school staff. OCR will work with school districts to identify and correct compliance concerns.
• Public Awareness and Support: OCR will focus on raising awareness of the issue of sexual assault in K-12 schools, including making information available to educators, school leaders, parents and families.
• Data Quality Reviews (DQRs): OCR will conduct DQRs of the sexual assault/offenses data submitted by school districts through the Civil Rights Data Collection (CRDC) survey. As part of conducting DQRs, OCR will partner with the National Center for Education Statistics and will work with districts to ensure that incidents of sexual assault/offenses are being accurately recorded and reported through the CRDC.
• Proposed CRDC Data Collection: OCR has proposed, for the 2019-2020 data collection, to collect more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel.

The specific methodology for how OCR decides what schools/districts will be reviewed under this new initiative is unclear. What is clear is that now is the time to assess your school/district sexual misconduct policies, procedures, and practices to ensure they are in alignment with Title IX. That said, the recent rescission of previous Title IX guidelines and purportedly impending release of new Title IX rules have muddied the waters in this area. So how can a school/district evaluate whether its response to sexual misconduct passes muster under Title IX?

Until the new Title IX rules become official, OCR has provided interim guidance for schools to follow on how to address sexual misconduct. According to OCR, the interim guidance provides “information about how OCR will assess a school’s compliance with Title IX.” While not an exhaustive review of the interim guidance, below are a few key takeaways from the guidance along with related questions for your school/district to consider:

School Responsibility: Regarding schools’ responsibility to address sexual misconduct, the interim guidance states:

Whether or not a student files a complaint of alleged sexual misconduct or otherwise asks the school to take action, where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately. In particular, when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s program or activities, a hostile environment exists and a school must respond.

As a foundational matter, it is important to note that Title IX compliance is ultimately the responsibility of the school. Even though some Title IX offenses, such as sexual assault, are criminal in nature and may trigger a mandatory report, merely passing a report and investigative duties off to law enforcement will not satisfy a school’s obligations under Title IX. Further, even if law enforcement conducts a criminal investigation into an allegation of sexual assault, that does not absolve a school from the responsibility of conducting their own, separate, investigation into the same matter and responding appropriately (see Investigation of Complaints section below for additional details about the requirements of school/district-based investigations).

Questions to Consider: Does your school/district have a sexual misconduct policy? Has your school/district treated reports of sexual misconduct as a school responsibility? Do your policies, procedures and practices reflect this? Does your school/district investigate and respond to all incidents of sexual misconduct that it becomes aware of? Does this happen even if the matter was referred to law enforcement?

Grievance Procedures: Schools must adopt and publish grievance procedures that provide for a prompt and equitable resolution of complaints of sexual misconduct. There are six factors OCR uses to evaluate whether a school’s grievance procedures meet this threshold, including whether the school: (1) provides notice of the school’s grievance procedures, including how to file a complaint, to students, parents of elementary and secondary students, and employees; (2) applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct carried out by employees, other students, or third parties; (3) ensures an adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence; (4) designates and follows a reasonably prompt time frame for major stages of the complaint process; (5) notifies the parties of the outcome of the complaint; and (6) provides assurance the school will take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.

Questions to Consider: Has your school/district adopted and published grievance procedures for complaints of sexual misconduct? Do the grievance procedures satisfy all six elements above?

Investigation of Complaints: Expounding on the investigation requirements enumerated above, the interim guidance provides additional guidelines for the investigation process, including:

• In every investigation conducted under the school’s sexual misconduct grievance procedures, the burden is on the school to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred and, if so, whether a hostile environment has been created that must be redressed.
• A person(s) free of actual or perceived biases against the parties must lead the investigation on behalf of the school, and must be a trained investigator.
• When opening an investigation that may lead to disciplinary action, a school must provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy. The notice must be provided with sufficient time for the responding party to prepare a response before any initial interview and include sufficient details, including: (1) the identities of the parties involved; (2) the specific section of the code of conduct allegedly violated; (3) the precise conduct allegedly constituting the potential violation; and (4) the date and location of the alleged incident.
• Schools may take interim measures during the investigation of a complaint with the aim of making every effort to avoid depriving any student of their education. Interim measures are individualized services offered as appropriate and include counseling, extensions of time or other course-related adjustments, modifications to work or class schedules, campus escorts, restrictions on contacting each other, etc. In assessing the need to provide interim measures, schools cannot rely on fixed rules or operating assumptions that favor one party over the other, nor may a school make interim measures available only to one party.
• Investigations must be prompt, but there is no fixed timeframe for when investigations must be completed. School must make a good faith effort to complete the investigation and reach resolution in a timely manner.
• Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation.
• The investigation should result in a written report summarizing the relevant inculpatory and exculpatory evidence.
• The reporting and responding parties (and appropriate officials) must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and proceedings. In addition, those parties must be able to inspect and provide a written response to the investigation report before any determination of responsibility is made.
• The investigator, or separate decision maker, must make findings of fact and conclusions based on the information gathered during the investigation as to whether the facts support a finding of responsibility for violation of the school’s sexual misconduct policy. A school can use either the preponderance of evidence standard or clear and convincing evidence standard to reach the findings of fact and conclusions.
• Written notice of the outcome of disciplinary proceedings should be provided by the school to the responding and reporting parties concurrently. In addition, the outcome notice should be provided to the parents of students who are under the age of 18. For elementary and secondary schools, the outcome notice provided to the reporting party should include (1) whether the school found that the alleged misconduct occurred; (2) any individual remedies offered to the reporting party or any sanctions imposed on the responding party that directly relate to the reporting party; and (3) other steps the school has taken to eliminate the hostile environment, if the school found one to exist.

Questions to Consider: Has the person(s) who conducts investigations on behalf of your school/district been trained on how to do so? Is written notice of the investigation provided to the responding party that includes the required elements above? Do interim measures favor one party over the other? Are they offered to both parties? Do both parties receive written notice in advance of any interview or hearing? How long do investigations take? Do investigations result in a written report? Does your school/district allow the parties to inspect and provide a written response to the report before any final determination is made? What standard of evidence is used? Are written outcome notices provided as prescribed above?

Sexual misconduct is an issue that occurs in communities large and small, and all campuses should take measures to effectively prevent, respond to, and recover from such offenses. This is not only the law, it is the right thing to do. For questions regarding Title IX compliance or conducting sexual misconduct investigations, please contact Elliot Cox, lead Title IX analyst with the Idaho Office of School Safety and Security, at (208) 332-4003, or by email at elliot.cox@dbs.idaho.gov.