K-12 DOE Title IX Enforcement Actions Announced - K-12 Appears To Be The First Frontier For DOE’s New Title IX Agenda

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Citing the alarming statistic that “[t]he number of K-12 sexual harassment and violence complaints filed with OCR is nearly fifteen times greater than it was a decade ago,” U.S. Secretary of Education Betsy DeVos announced a new Title IX enforcement initiative aimed at K-12 schools that hopes to lower the “approximately 9,700 instances of sexual assault, rape or attempted rape reported in public elementary and secondary schools.”

This Department of Education (DOE) enforcement initiative, announced on February 26, comes on the heels of other, recent DOE initiatives aimed at changing the way K-12 schools prevent, address and remedy sexual misconduct affecting elementary and secondary school campuses.

While the Title IX community awaits the release of forthcoming, comprehensive DOE Title IX regulations, K-12 schools cannot delay addressing the latest guidance to come from DOE.

New Enforcement Initiative

DOE’s new enforcement initiative will include four activities:

  1. Compliance Reviews

DOE’s enforcement division, the Office for Civil Rights (OCR), will launch “nationwide compliance reviews in schools and districts” aimed at examining policies for investigating and adjudicating sexual assault and misconduct complaints. A spokesperson for the Department stated that the reviews will originate in all 12 of the Department’s regional offices, and that schools and districts will be chosen for OCR examination based on reports from parents, community members, the media, and others. OCR also intends to initiate Title IX compliance reviews on its own accord.

K-12 schools should proactively review and update their policies as needed to strengthen their Title IX practices and ensure that staff is effectively trained and empowered to implement them.

  1. Public Awareness and Support

The DOE initiative will “mak[e] information available to educators, school leaders, parents and families” in an attempt to increase awareness about the issue of sexual assault, sexual harassment, and other forms of sexual misconduct in K-12 schools. DeVos stated that “[n]o parent should have to think twice about their child’s safety while on school grounds.”

Aimed at bringing issues of sexual misconduct into the light, this public-facing effort may create exposure for institutions with inadequate policies, outdated procedures, insufficient reporting mechanisms, or inconsistent or ineffective remediation efforts.

  1. Data Quality Reviews

OCR will partner with the National Center For Education Statistics to conduct Data Quality Reviews of sexual misconduct data collected from school districts. This effort is aimed at ensuring that instances of sexual misconduct are accurately recorded and reported.

  1. Proposed CRDC Data Collection

Beginning with the 2019-2020 data collection effort, OCR has proposed to collect “more detailed data” on instances of sexual assault. “The proposed data collection includes incidents perpetrated by school staff or school personnel.” The effort seeks “to gather such data systemically by school.”

Clearly, K-12 schools need to pay close attention to this enforcement initiative, take proactive steps to shore up their Title IX practices, and stay ahead of any potential OCR compliance assessments.  Not only is it the law, it is the right thing to do to protect students and maintain a safe place for them to learn.

Other Recent DOE Instructions Towards K-12 Schools

DOE’s Title IX initiative also builds on its efforts to implement the “Pass the Trash” provisions of the Every Student Succeeds Act (ESSA), which prohibit schools from “assisting” individuals in obtaining new employment when the school “knows, or has probable cause to believe” that the individual previously “engaged in sexual misconduct regarding a minor or student.” In DOE’s words, “For too long, and too often, teachers who have engaged in sexual misconduct with a student or other minor have appallingly managed to find employment at another school.”  In DOE’s February 26 announcement, it previewed that it will publish an “extensive” study detailing the policies and procedures that states and school districts have enacted to prevent “Pass[ing] the Trash.” 

Clearly, K-12 schools should carefully review and assess their recruitment and hiring practices to ensure that candidates are fully vetted before being integrated into school systems.

In addition, the DOE’s forthcoming rules on sexual misconduct are reported to include provisions to expand protections for victims of domestic violence, dating violence and stalking under the umbrella of gender discrimination that schools must address under Title IX.

This expansion will immediately impact and pose unique challenges for K-12 schools trying to meet their Title IX obligations, especially when the parties involved in intimate partner violence often are enrolled in the same school, take the same classes, and attend the same school-sponsored events.

DOE Title IX Regulations Still To Come

DOE is expected to release comprehensive, new Title IX regulations in the immediate future. Those regulations are likely to further expand the impact on K-12 schools and require additional local-level policy development, training, compliance, and monitoring efforts.

Nelson Mullins' Education Team will continue to keep you informed about legal developments affecting K-12 schools, including the much-anticipated Title IX regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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