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Betsy DeVos' new Title IX rules will shake up how K-12 schools handle sexual harassment

The overhaul of campus sexual assault regulations will ramp up the paperwork schools must do to comply with Title IX.
Image: Education Secretary Betsy DeVos testifies at a hearing on Capitol Hill in 2017.
Education Secretary Betsy DeVos' Title IX changes don't just affect college campuses — they'll also have a large effect on policies in K-12 schools. Doug Mills / NYT via Redux file

New regulations released Wednesday by the Education Department will change how K-12 schools respond to students' reports of sexual assault and harassment, requiring administrators to more formally investigate claims and share the evidence with accused students and their parents.

The long-awaited rules, which apply to colleges as well as K-12 schools, mark the first time the department has established regulations under the gender equity law Title IX detailing what schools must do when dealing with sexual assault cases involving students.

While colleges ramped up hiring of officials dedicated to Title IX issues over the past decade, school districts largely did not, and many of the new rules will require a big adjustment to how K-12 administrators deal with those cases.

"We are making sure our younger students, who are often overlooked in this topic, are no more forgotten," Education Secretary Betsy DeVos told reporters in a conference call.

Virtually every state has a law requiring school employees to report criminal sexual abuse cases to authorities, but Title IX requires schools to respond internally as well, regardless of law enforcement action.

Under the new regulations, after a student reports an assault or a harassment incident covered by Title IX, the school must tell the students involved and their parents in writing about the allegations and the evidence that is gathered. The school must also give the accused person at least 10 days to respond. If the school decides to punish a student for a sexual assault allegation, it must tell the victim in writing, something many schools had previously resisted doing.

Schools will have to keep written records of actions taken in response to sexual misconduct reports for at least seven years under the regulations.

In another change, the person who investigates a sexual assault case under Title IX cannot be the same person who decides whether the accused student is responsible — which means schools may need to hire or train additional staff.

"That would be a concern for us," said Francisco M. Negrón Jr., chief lawyer for the National School Boards Association. He said cases are often investigated and decided on by school principals, unlike in colleges, which may have entire offices dedicated to handling Title IX matters.

National education groups were still parsing the regulations, issued as part of a 2,033-page document, and say it will take time to fully understand the changes. Many were critical of an earlier draft version of the Title IX overhaul, proposed by the department in November 2018.

The National School Boards Association, one of the main lobbying groups for public schools, sent a letter to the government last year calling the Trump administration's proposal "detached from the realities of many K-12 school buildings." The nation's largest teachers unions also objected to the proposal. Education officials from California, Wisconsin and other states met with Trump administration officials in recent months to describe their objections, according to federal records.

The final Title IX regulations removed some of the most controversial measures at the K-12 level and will not require live hearings in student discipline cases for sexual assault.

The regulations also clarify when K-12 schools are required to investigate students' claims. Schools must investigate whenever any district employee — from teachers and guidance counselors to bus drivers — learns of a sexual assault or harassment incident, whether a student, a parent or a bystander reports it. Schools will be required to investigate cases that happen on campus or as part of school activities like field trips, athletic events or conferences.

"Among the many new requirements, our new regulation requires schools to have accessible options for reporting sexual harassment, verbally or in writing, including by email or by telephone," DeVos said. "Anyone can report, including survivors, parents, friends or bystanders."

Sasha Pudelski, advocacy director of AASA, The School Superintendents Association, said she is concerned that the regulations still bar schools from investigating sexual misconduct between students that occurs off campus and not at school events.

If an incident happens at a high school party over the weekend, Pudelski said, the regulations "make it seem as if the district can take action related to the drinking that happened or to a fight that broke out, but if there was a sexual assault, these regulations say, 'Oh, you can't do anything about that.'"

The regulations also require schools to use a narrower definition of sexual harassment than is used in employment sex discrimination laws. Sexual harassment under the new Title IX regulations is unwelcome conduct that "a reasonable person" would consider "so severe, pervasive, and objectively offensive that it effectively denies a person equal access" to an education.

The Education Department told NBC News that it decided to use a narrower definition partly to allow for speech protected by the First Amendment. Victims rights advocates criticized the definition, which they said would require students to endure more harassment before schools could take action.

"We think this would mean that schools would be required to dismiss complaints of sexual harassment where they feel the victim hasn't suffered enough because of the narrow definition that the department is putting forward," said Shiwali Patel, director of justice for student survivors at the National Women's Law Center, a nonprofit advocacy organization that plans to sue the department over the regulations.

The new regulations are scheduled to take effect Aug. 14.