In recent weeks, I have been lucky enough to be involved in the conversation about what changes the Biden administration should make under Title IX. In addition to informal discussions with colleagues, administrators, and associations, Real Clear Investigations interviewed me for a recent piece. I discussed the pressure that many schools felt under the Obama administration as one reason the Biden team should not simply return us to the Title IX guidance of that era.
Most conversations, including the Real Clear Investigations interview and article, focus primarily on Title IX and higher education. To some extent, that makes sense. There are more Title IX incidents in higher ed. Colleges and universities have and dedicate more resources toward the process. The highest-profile cases of mishandled complaints are from the higher ed space.
But K-12 administrators have been working hard since May 6, 2020, to implement the new Title IX regulations. They are already feeling the real impacts of the new rules in the schoolhouse (whether in-person, hybrid, or virtual). I have trained thousands of administrators during the summer and fall and helped countless others write policies and respond to complaints under the new rules. I have heard time and again how much in the 2020 rules are not workable for K-12 schools. If K-12 administrators had a wish list for the Biden transition team regarding their genuine and unique concerns, what might it be? Here are the top three considerations as I see them.
- Don’t Make K-12 an Afterthought. Perhaps most importantly, the Department of Education should not regulate K-12 schools as an add-on or afterthought to higher education institutions. Both the Obama and Trump administrations were guilty of doing this. From 2011 to 2014, Obama-era guidance focused primarily on higher education institutions. Few examples or guidance documents spoke to the K-12 environment specifically. It was not until September 2016 that the administration issued guidance to K-12 schools. We all know what happened to that guidance once President Trump took office.
The Trump administration suffered from similar tunnel vision. A perfect example is that the original Title IX regulations proposed by Betsy DeVos’s OCR included a requirement for a live hearing with live cross-examination in K-12 schools. Had that proposal become law, primary and secondary schools would have put children as young as 4 or 5 “on the stand.” Then, the representative of the classmate or teacher alleged to have sexually assaulted them would get to ask them live questions. The fact that such hearings and cross-examinations are reasonable, and in some jurisdictions required, in higher education obscured the absurdity of the suggestion for K-12 schools.
K-12 schools are a unique environment, and sexual harassment does not look the same as in higher education institutions. An elementary school should not use the same standards and process to adjudicate a complaint against a small child as those used to address complaints against high school or college students. Of course, current guidance and regulations direct K-12 schools to consider things like age, maturity, and relationships with other parties when addressing complaints. But wouldn’t it be nice to have guidance and a process that reflects the unique natures and concerns of K-12 schools instead of being an afterthought for higher education?
- Remember Resource Restrictions in K-12. The Title IX machine in higher education is a wonder to behold. Colleges and universities often have teams of employees, including attorneys, focused solely on Title IX or, at the very least, on civil rights. General counsel offices are on deck to assist with legal conundrums, and funds flow for training from world-class consultants and the use of outside investigators when needed.
The reality could not be any more different in K-12. Most Title IX administrators with whom I have the pleasure to work are running other departments on top of their Title IX work. They are special education directors, student services administrators, heads of human resources departments, and communications leaders for their districts. The requirements of the new rules are, in many cases, an insurmountable burden for these hard-working administrators. When clarifying things like the differences between “directly related” and relevant evidence and other confusing elements of the 2020 rules, we hope that the Biden team will keep in mind the pressures on these school leaders.
The new Title IX regulations also require a separate Title IX investigator, initial decision-maker, and appellate decision-maker. Most of us in the field recommend that schools also use a different person for the Title IX Coordinator and informal resolution facilitator roles, as well. For a K-12 school district with three, two, even one administrator, this is an impossible feat. Hopefully, the next stage in Title IX regulation will consider the realities facing K-12 schools rather than holding them to the same standards as higher education institutions.
- Consider State Law. As an OCR attorney, I often fielded complaints from school attorneys about conflicts between OCR’s practices and State law by saying “Supremacy Clause,” dropping a mic, and walking away. Ok, I didn’t do that. But citing Federal supremacy in the face of State law conflicts has been a longstanding approach of the ED Department. I often was frustrated at OCR by an apparent lack of curiosity about state law issues or practices that came into play in our cases.
That lack of interest has been disastrous under the new Title IX regulations. States regulate K-12 schools on a much greater level than higher education institutions. Schools can’t simply ignore their responsibilities because OCR says so. For example, the new Title IX regulations require schools to authorize the initial decision-maker in a Title IX complaint to issue findings of policy violations and sanctions. The decision-maker must decide whether a student engaged in prohibited sexual harassment and, if warranted, discipline the student, up to and including expulsion. However, most states have laws allowing only a board of education to expel. An administrator cannot simply usurp the responsibility of a board to hear an expulsion. Nor can the board always step in to be the decision-maker. Boards must meet and act publicly, limiting their ability to act as a decision-maker. Also, who exactly would hear the subsequent appeal?
The Title IX rules essentially ignore tenured-teacher dismissal proceedings under state laws. Same with special education processes. An administrator can remove a student on an emergency basis during an investigation that could last 100s of days, despite that being an expulsion that would require Board action.
Some similar irreconcilable conflicts exist in higher education, such as in cases involving tenured faculty or collective bargained rights. However, the problem is enormous in K-12 and should not be ignored.
These are just a few of the many K-12 specific issues that might end up on a K-12 holiday wish list for Title IX. We will continue to keep readers updated as we learn more about any initiatives discussed. We invite you to share with us on Twitter or at titleIX@franczek.com or any concerns that you hope will be addressed in the next “new” Title IX.