Three Key Recommendations for Ensuring Better Title IX Protections for K-12 Students

This post was originally published in The74.

by Heidi Goldstein, SSAIS Board Chair

On June 8, I delivered comments during session 3 of the public hearings on Title IX before the U.S. Department of Education’s Office for Civil Rights. This was a much anticipated and long-awaited opportunity to re-engage with the department, under new leadership, to participate in the thinking about changes to Title IX regulations that can improve civil rights protections for all students, both K-12 and in higher education.

I anticipated that many of the speaker comments would address Title IX in higher education and expected that many would re-iterate the content of comments submitted when the DeVos Department of Education proposed changes to the Title IX rules in late 2019.

My comments pertained to sexual harassment and Title IX in the K-12 environment, the focus of my advocacy since 2014, when my daughter was assaulted by two male students at her middle school. As a result of her experience, I filed a complaint with the office that resulted in a multi-year investigation of the school district’s practices and revealed the challenges — cultural, educational, administrative, legal and logistical — in holding local districts accountable for harm. My comments also reflected my experience as an adult adviser to the grassroots student activist group BHS Stop Harassing, where I have worked with many dozens of students, ranging from elementary to high school, to secure their safety and access to school resources after incidents of sexual harassment or violence.

Through this work, and in my current role as board chair of the national nonprofit Stop Sexual Assault in Schools, I have developed a nuanced understanding of where Title IX fails. I focused on three high-impact changes to the rules that would enable K-12 students and their allies to better navigate the mechanics, contradictions and pitfalls of this complex process, and to obtain the help they need to safely stay in school, free from retaliation, while their charges are investigated and adjudicated.

First: Require public schools to accept and acknowledge an independent Title IX advocate as a minor child claimant’s representative. Today, Title IX is a quasi-criminal process. Districts often engage counsel to manage the investigation, adjudication and appeal phases, bringing into question the impartiality of the overall process and the likelihood of a fair outcome for the complainant. District staffers are often inadequately trained in the processes of investigation, application of standard of evidence and the obligation to protect students from retaliation.

Students may choose to not share their predicament with parents or guardians. However, schools often will refuse to discuss a claim with anyone except a parent or guardian, citing student privacy concerns. Further, schools vary widely in the fidelity with which they adhere to Title IX notice requirements to complainants and respondents. With an independent advocate, the student complainant has access to a knowledgeable resource who can help navigate the Title IX process, assist in securing safety accommodations while at school and provide informed options at every step. This is a necessary level of support most parents or guardians aren’t able to provide to a young person navigating an emotionally fraught, socially messy and administratively complex process.

Next, OCR must provide extensive “Dear Colleague”-style guidance to clarify how Title IX processes interact with other student protections, such as accommodations under Section 504 of the Rehabilitation Act of 1973 and requirements in state-mandated Individualized Educational Programs, when a complaint has been made. It is not uncommon for school administrators to disallow Title IX complaints, incorrectly maintaining that Section 504 or IEP requirements supersede Title IX protections. Or, they refuse to discuss the status of a case with the complainant and his or her representatives, citing student privacy. These shields are frequently misapplied and leave K-12 complainants vulnerable and uninformed on important matters that affect their safety and access to school resources.

Parents and guardians vary widely in their ability to advocate for their children. Coupled with the complexity of the law around Section 504, student privacy rules and the IEP-like protections, most parents or guardians are ill-equipped to speak with school administrators who throw up these barriers as reasons for non-engagement on Title IX complaints. Both administrators and the public need a better understanding of how Title IX protections interact with these other civil rights protections.

Finally, K-12 students who have experienced sexual harassment/sexual violence need more time to come forward than the current 180-day incident reporting window. Shame, confusion, fear, embarrassment and the complicated Title IX processes all introduce significant delays in K-12 student reporting. Recognizing this, in 2019 California enacted a law that expanded the statute of limitation to bring claims for incidents of childhood sexual assault that occurred at schools. AB 218 requires schools to investigate claims about incidents that occurred many years, even decades, in the past, and imposes hefty punitive penalties where it is found that schools intentionally covered up or disallowed complaints, in violation of Title IX. Not all states have such laws that give survivors another chance to seek remedy and closure. Extending the timetable for students to file incident complaints will enable far more survivors of sexual harassment or sexual violence at school to have their charges addressed and resolved.

Better access leads to fairer outcomes. These three recommended changes to Title IX can significantly bolster civil rights protections for all students who experience sexual harm at school because they increase transparency and accountability and engage school administrators, who are responsible for administering the Title IX process, to create a more level playing field for incident investigation.

Through increased clarity on the dynamics of overlapping and frequently conflicting student protections, school administrators will make more equitable decisions to balance student rights to a free and appropriate education, free from intimidation and retaliation, while their complaints are investigated, adjudicated and remedied, as Title IX intends.