This week we are concentrating our Daily Dawg entries on Title IX, which will be guided by new regulations as of August 14th. Title IX is a deceptively simple law. On its face the law simply prohibits sex discrimination in educational institutions that receive federal financial assistance. We are accustomed to thinking of Title IX as it applies to athletics and other extracurricular activities. There is no doubt that Title IX has accelerated the huge increase in participation and interest in female athletes. But after the first wave of lawsuits involving sports, we began to see Title IX show up in cases involving sexual harassment.
It's well established that harassment based on a protected characteristic (race, sex, age, disability, religion) is a form of discrimination. Thus we have known for a long time that harassment based on sex is a form of illegal discrimination. There are now hundreds of court cases interpreting the legal standards for sexual harassment under Title IX. But until now the courts made their decisions based on the simple language of the law along with whatever guidance the Department of Education offered. That guidance came primarily in the form of Dear Colleague Letters, which some courts took seriously and some disregarded.
The adoption of regulations changes the landscape. The Department of Education’s Office for Civil Rights has complied with the procedures that our federal laws require when regulations are adopted. They were published in the Federal Register in “proposed” form; the public had an opportunity to offer comments and recommended changes; the DOE reviewed the comments (almost 125,000 of them!); and now has published the final form of the regulations. Because the process was proper, the courts will give these regulations considerable deference.
That’s one reason there is already litigation over the final regulations—the ACLU has filed suit, claiming that the regs provide inadequate protection for victims of sexual harassment, and adopt a standard for sex discrimination that differs from the standard for other forms of discrimination, such as race, national origin and disability.
With that in mind, today being Toolbox Tuesday, we offer just a few words about how these regulations will impact the discipline of students with disabilities. The short answer to that question is: not much. The regs specifically say that they should not be construed in a way that modifies the legal standards for IDEA or Section 504. Translation: all of the rules regarding 10-day removals, manifestation determinations, changes of placement, and non-discrimination are still fully in effect.
However, there are some concerns. Special education directors should meet with Title IX Coordinators to talk about the interplay of Title IX and IDEA particularly when it comes to investigations of sexual harassment. Title IX regs do not require a full blown investigation until a Formal Complaint is filed, but if and when that happens, the regs include a presumption of innocence for the student accused of wrongdoing until the Formal Complaint process is completed, which is going to take a long time. We all need to think about how students are handled while that Formal Complaint process is going on.
So stay tuned. Training is coming up on this and many other issues. Our firm is offering four On Demand Webinars on the Title IX regs this month. The first one is tomorrow: Ten Things You Need to Know About the New Title IX Regulations. I will be doing that one along with Haley Turner. Three more follow:
SO YOU GOT A COMPLAINT ABOUT TITLE IX: NOW WHAT?
June 11 Craig Wood and Katie Payne
TITLE IX AND SPECIAL EDUCATION:
June 15 Paula Maddox Roalson and Hank Bostwick
TITLE IX COORDINATOR TRAINING:
June 16 Robb Decker and Melanie Charleston
You can register for one or the entire series at www.walshgallegos.com.
DAWG BONE: TITLE IX COORDINATORS…SPECIAL ED DIRECTORS…Y’ALL TALK TO EACH OTHER!
Tomorrow: Title IX and “actual knowledge”