Hidden within the concerns surrounding reopening schools during a pandemic is the requirement that the new Title IX regulations go into effect on August 14, 2020. As we have previously noted in Part I, Part II, and Part III of the Series: Is Your District Prepared to Implement the New Title IX Regulations at the Start of the 2020-2021 School Year?, these regulations make sweeping changes in the way that elementary and secondary schools must investigate and address claims of sexual harassment. If you have not yet done so, now is the time to update your Title IX policies and complaint procedures. Do not rely on the fact that numerous law suits have been filed against the United States Department of Education asking for the courts to either enjoin the regulations completely or at least delay the implementation date for the regulations. School districts need to be proactive in putting in place these new policies and procedures and planning how they will address any Title IX reports of harassment that are received when school is back in session (in whatever form) next month.
At least four lawsuits have been filed against the US Department of Education over the new regulations. One was filed by the State of New York and the Board of Education for the City School District of the City of New York (“New York”) and has been joined by several other states. Another was filed in the District of Columbia by a group of states. A third was filed by the ACLU and various other groups. In a 98 page complaint, New York outlines many of the concerns that other elementary and secondary schools have over the regulations. New York is requesting in the short term that the Court delay the implementation of the final rule and ultimately that it vacate the regulations in their entirety.
New York’s federal court complaint highlights the difficulty that K-12 schools will have in implementing regulations that are designed to address sexual harassment and sexual assaults on college campuses. The regulations significantly narrow the definition of sexual harassment, excluding from Title IX conduct that may be considered sexual harassment under state law. It creates a cumbersome investigation process for formal sexual harassment complaints that requires an adversarial-type proceeding where the parties are entitled to be represented by a person of their choosing, including an attorney, throughout the process. It may require districts to have two separate policies and procedures to address Title IX sexual harassment and non-Title IX sexual harassment. As New York argued, complying with some of the regulations regarding the sharing of personally identifiable student information would require districts to make the choice between violating FERPA, the IDEA or other state and federal laws on student privacy, or risk being found to have violated Title IX. There are significant requirements for staff training before any internal staff can take on roles such as an investigator, a decision-maker and even a facilitator of an informal resolution process. A decision on these cases, however, is unlikely to be issued prior to the August 14 implementation deadline.
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