The confusing messages coming from the U.S. Department of Education continue. We still await more information on if/when a final version of the pending Title IX regulations will be released. Those regulations have been almost universally described as rolling back Federal regulatory oversight in the Title IX realm for schools, colleges, and universities. Yet yesterday, Secretary of Education Betsy DeVos announced a “New Civil Rights Initiative to Combat Sexual Assault in K-12 Public Schools” that suggests elementary and secondary schools can expect an uptick in enforcement in this area starting today. The specific target: the purported uptick in elementary and secondary schools of the phenomenon known as “passing the trash.” This is where teachers who have engaged in sexual misconduct with a student or other minor are fired but allowed to find employment at another school. What can you expect from OCR in light of this initiative and what should K-12 schools do now to prepare?

Referring to a “tragic rise of sexual misconduct complaints in our nation’s K-12 campuses,” and particularly those in which children are “sexually assaulted by an adult in school,” the Department announced four ways in which it intends to increase focus on sexual misconduct in K-12 schools:

• Compliance Reviews: OCR says it will conduct nationwide compliance reviews in schools and districts, examining how sexual assault cases are handled under Title IX, including sexual incidents involving teachers and school staff. Compliance reviews are not a new thing at OCR, but this announcement means we can almost certainly expect more of these reviews in the area of K-12 sexual assault. As OCR explains elsewhere on its website, compliance reviews are “[a]gency-initiated cases” that “permit OCR to target resources on compliance problems that are particularly acute, national in scope, or newly emerging.” OCR says that such “reviews are selected based on various sources of information, including survey data as well as information provided by parents, education groups, media, community organizations and the public.”
• Public Awareness and Support: The second part of the new OCR initiative is an increased “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.” It is not immediately clear what this will look like, as OCR has not traditionally been in the business of proactively raising awareness about issues other than through published decisions.
• Data Quality Reviews: OCR also says it will begin to conduct Data Quality Reviews (DQRs) of sexual assault/offenses data submitted by school districts through its Civil Rights Data Collection (CRDC), which is a biennial survey OCR requires from every recipient of Department funds regarding civil rights data. Again, DQRs are not a new thing; in January 2019, for instance, OCR announced that it would conduct DQRs to address restraint and seclusion in K-12 schools. Today, OCR stated that its goal with respect to sexual misconduct is to “partner with the National Center for Education Statistics (NCES)” to use DQRs to identify school districts to work with “to ensure that incidents of sexual assault/sexual offenses are being accurately recorded and reported through the CRDC.”
• Proposed CRDC Data Collection Regarding Adult Assaults: The final part of the new initiative also relates to the CRDC: For the 2019-2020 data collection, OCR says it will “propose” to “collect data on “incidents perpetrated by school staff or school personnel” under Title IX. If this proposal is approved, we can expect that OCR will use the data collected to help identify schools as subjects for compliance reviews and DQRs.

The announcement notes that this new initiative comes on the heels of the Department’s Office of Elementary and Secondary Education’s announcement that it will publish an extensive study of measures taken by states and school districts to prevent the phenomenon known as “Pass the Trash.” The press release explains: “The study examines best practices for prevention and raises awareness of the requirement under Section 8546 of ESSA, which prohibits state education agencies, school districts, schools and school employees from assisting an individual in obtaining new employment if the individual has engaged in sexual misconduct with a student or minor.” The goal of the proposed OCR initiatives is to ensure that school districts are complying with these new requirements.

What are the key takeaways for school leaders from this newest announcement from OCR? First, this announcement is yet another reminder that Title IX enforcement is in no way dead, regardless of what critics of the proposed Title IX rules may say. OCR can, and will, knock on your door if it receives a complaint that a sexual misconduct report was mishandled, and it may even knock for a compliance review or DRQ even if it hasn’t received a complaint. There is no reason to doubt that OCR will fail to follow through on its warning that it will conduct Compliance Reviews and DRQs regarding “pass the trash” concerns; the announcement today specifically underscores the many enforcement steps that OCR has taken with respect to the last initiative it announced in this realm. Now, more than ever, school districts should consider internal audits to address any issues that may exist with Title IX responses. As I described in a recent post on the OCR OPEN Center, identifying concerns before calling on or responding to a request from OCR has many benefits.

Second, when considering what to look at when evaluating policies and procedures, remember this new focus on the idea of “pass the trash.” Attorneys here at Franczek have long warned our clients of the importance of following state rules on reporting sexual misconduct and the need to be careful when addressing requests for information about former employees. Considerations should also be taken before allowing an employee accused of sexual misconduct with a student resign in lieu of facing termination proceedings. Taking these steps and others to avoid “pass the trash” complaints is more important now than ever.