Three Major Myths of the New Title IX Regulations

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Three Major Myths of the New Title IX Regulations

Three Major Myths of the New Title IX Regulations

As of May 6, new Title IX regulations have been published, and a compliance deadline of August 14, 2020 now looms. In our interactions with our K-12 members, we’ve learned there are three main myths about the new regulations that deserve your attention:


•             The live hearings requirement;


•             The cross-examination requirement; and


•             The duty to appoint advisors to the parties in a sexual harassment complaint.


Fortunately, these misconceptions are easily dispelled, and it’s all good news for our K-12 colleagues, who have more than enough on your plates already. These three provisions apply to postsecondary institutions only, not to K-12. The regulations are confusing on these points, so this discussion should clarify.


Are Live Hearings Required in Public K-12 Schools?


Of course they are. Since Goss v. Lopez was decided by the Supreme Court in 1975, public K-12 has been required to provide hearings for students in cases that could result in suspension and expulsion. The Title IX regulations express that if schools are already required to provide hearings, they’ll need to apply those hearings to Title IX sexual harassment cases, too, but the regulations add no new or additional hearing requirements for K-12. If a sexual harassment complaint under Title IX isn’t going to lead to suspension or expulsion, and district policies don’t already require a live hearing to address them, you’ll be able to address them through the informal administrative mechanism for exchange of written questions that the regulations describe.

 


What the regulations don’t do is tell K-12 schools that if they hold live hearings, the live hearings provisions of the regulations apply to them. They don’t. ATIXA strongly encourages districts not to reinvent the wheel. Adapt your existing policies and procedures with a set of additional regulations-based rules that will apply to suspension and expulsion hearings when a Title IX complaint is in issue.


 


Is Direct Cross-Examination Required?


No, it’s not. The regulations require informal administrative decision-making which can be an entirely written exchange, requiring only that districts, “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Then, the designated administrator/decision-maker makes a determination as to whether policy was violated.


So, whether the conduct falls short of suspension or expulsion, or a Goss hearing is required, the informal exchange of questions and responses described above and in the regulations will suffice for Title IX purposes. There may be state, board, or district level requirements for more formality, and those should be respected and applied to Title IX processes.


The regulations state:


If an elementary and secondary school recipient chooses to hold a hearing (live or otherwise), this provision leaves the recipient significant discretion as to how to conduct such a hearing, because § 106.45(b)(6)(i) applies only to postsecondary institutions. The Department desires to leave elementary and secondary schools as much flexibility as possible to apply procedures that fit the needs of the recipient’s educational environment. 


Thus, the Department declines to mandate hearings and cross-examination for elementary and secondary schools. 


K-12 Schools Not Required to Provide Party-Advisors


The district lawyers we spoke with recently shared their interpretation that while K-12 was not mandated to have hearings, once they opted to have them (or had to have Goss hearings), the cross-examination requirements of the regulations would then apply, and thus so would the appointed advisor requirement. But, as has been shown by the quote above, the regulations do not require direct cross-examination, thus leaving K-12 with only the obligation to ensure that the parties have the right to an advisor of their choice, but with no requirement to provide, appoint, or train district-level advisors for the parties.


The requirements of the regulations are onerous enough for K-12 without reading into them   additional compliance mandates that ED did not intend to extend to K-12. Since the regulations were published a month ago, our phones have been ringing with calls from school district attorneys and administrators looking for advice on where to start. We want to offer you this roadmap to compliance with the new rules to help guide your school or district forward on Title IX. For additional compliance resources please visit the ATIXA Regs Rapid Response Resource Center. 


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Brett A. Sokolow is president of ATIXA, the Association of Title IX Administrators. Contact him at brett.sokolow@atixa.org.


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