The U.S. Department of Education on Wednesday released long-awaited updates to Title IX regulations that increase the responsibility for K-12 schools to report and investigate sexual harassment and assault claims.
Starting Aug. 14, schools will be required to respond to allegations when any school employee has been notified by a student, as opposed to U.S. Secretary of Education Betsy DeVos' earlier proposal that limited those employees to teachers. Institutions can be held liable if they fail to respond to notices by bus drivers, coaches, cafeteria staff and others.
In addition, the regulations make optional live hearings between the student victim and the accused, rather than previous language that required formal proceedings.
DeVos clarified in a press call Wednesday that the new regulations are also applicable if the alleged incidents occurred in a virtual setting or during distance learning.
For the first time, Title IX will also formally include an expanded definition of sexual harassment to include sexual assault, dating violence, domestic violence and stalking as unlawful. But some say that definition leaves out instances where students are verbally harassed or threatened.
Additionally, the new regulations require schools to have accessible options for reporting harassment verbally or in writing, including by email or through telephone. And anyone can report incidents, including bystanders, parents and friends.
While a number of school groups acknowledge the positive change compared to the 1975 regulations, they also said the rules put in place new requirements for administrators and staff to follow.
"This is only going to make it more challenging for administrators to do their jobs because now we have a ton of procedures that didn’t exist before," Sasha Pudelski, advocacy director for AASA, The School Superintendents Association, told Education Dive. She added the regulations "greatly alter" policies from the department's 2001 guidance that district personnel have been following for almost two decades.
Francisco M. Negrón Jr., chief legal officer for the National School Boards Association, added that any employee being notified may be less practical for districts from an operational standpoint. "What if a comment is made sort of in passing or to a custodial employee?" he explained. "It may be that schools have to put into place policies about how that information flows uphill so that the district can actually do something about it."
Not requiring schools to pursue live hearings relieves educators from worries around formal processes younger students may not be emotionally equipped for. The Education Department noted in a press call that it made a distinctive change between how some processes in K-12 and higher education are addressed for a similar reason, adding that old legislation only dealt with that distinction as a "footnote".
"Schools are still going to be free moving forward to continue with the informal investigative process that is most relevant to them and works for them and the children," Negrón said, adding the process could be, for example, as informal as a principal asking a student to describe what happened.
Education experts also raised concerns language included in the new rules could exacerbate the "pass the trash" phenomenon, allowing teachers who have been accused of sexual abuse to resign quietly and then get a job with another school district. But the Education Department said the new rules have the opposite effect.
The final regulations are similar to DeVos' 2018 proposal, which was left open for comments and criticized by many for favoring the accused compared to rescinded guidance from the Obama era that offered protections for alleged victims.
These regulations also come amid a backdrop of a reported increase in K-12 sexual harassment and violence complaints filed with the department's Office of Civil Rights. Assistant Secretary for Civil Rights Kenneth L. Marcus said last year that those numbers are "nearly fifty times greater" now than a decade ago.