By Tim Cason, M.Ed., Consultant, TNG
One component of the 2020 Title IX regulations that most recipients hoped would be revised in the 2022 Notice of Proposed Rulemaking (NPRM) is the emergency removal provision. Currently, recipients may remove a student respondent from the education program or activity on an emergency basis only after:
- Undertaking an individualized safety and risk analysis
- Determining if an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal
- Providing the respondent with notice and an opportunity to challenge the decision immediately following the removal while respecting all rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act, as applicable
The requirement of an immediate threat of a physical nature arising from the allegations sets an impossibly high bar for emergency removal. Although requiring a significant threshold is appropriate when a recipient is considering taking action that disrupts the student’s ability to progress academically, such as an interim suspension from classes, this unreasonably high bar is inappropriate when a recipient seeks to remove respondents from non-academic activities that are part of a recipient’s education program or activity.
Under the strictest reading of the 2020 emergency removal provision, schools have been unable to alleviate concerns about further psychological harm to the parties that result from not being able to effectively separate the respondent from the institution during the pendency of an investigation. This has largely resulted from finding that the respondent’s behavior does not rise to the level of an immediate physical threat. Subsequently, this has led to an inability to remove student respondents from education programs and activities that are not directly related to a respondent’s academic progression. The general public would commonly consider education programs and activities unrelated to academic progress to be privileges. For example, recipients have been prohibited from removing respondents from programs such as study abroad, service-learning, performance groups, and student clubs/organizations. Other examples include student government associations not being able to enforce their own bylaws and athletic coaches being unable to enforce team rules by placing temporary restrictions on an athlete for alleged misconduct, despite being able to do so for conduct that is often far less egregious than Title IX-related allegations. This results in the recipient having difficulty or being unable to mitigate the risk or concern present in these activities, and often the complainant self-selects out of opportunities shared with the respondent as their only recourse to avoid being in the respondent’s presence, though no contact orders can help.
With respect to the NPRM, the Department of Education has removed the term “physical” from the threat threshold requirements but left the remaining language largely unchanged. ATIXA supports the Department’s decision to remove the term “physical,” but has requested that the Department specify that the immediate harm standard should only apply to removal decisions that would interfere with the student’s ability to progress academically. Additionally, ATIXA notes that the requirement for the threat of harm to be imminent is not consistent with research and understanding from the field of violence risk/threat assessment. Rather, ATIXA believes recipients should be permitted to make decisions regarding removal with regard to a high likelihood of harm based on an objective and structured evaluation of the available information, rather than relying solely upon risk of immediate harm. The Department should consider a standard that is more practical and in line with research (i.e., “determines that a realistic (credible) threat to health or safety is imminent, ongoing, and/or reasonably likely to occur”).[1]
For other removal decisions that do not interfere with the student’s ability to progress academically, such as removal from extra-curricular activities or housing, recipients should have greater flexibility. If this flexibility is granted, ATIXA recommends that the Title IX Coordinator collaborate with the professionals who oversee the program in question (e.g., coaches, advisors, faculty) and other appropriate professionals (e.g., the Behavioral Intervention Team) when making removal decisions. Objective Violence Risk Assessments (VRA) will serve schools far better than seat-of-the-pants subjective threat assessments. Additionally, ATIXA believes that a student should still be able to challenge any removal determination and that schools should re-evaluate removal decisions as time passes or additional information is obtained through investigation.
Practitioners are encouraged to attend ATIXA’s Violence Risk Assessment with NABITA Endorsement course half-day course that will introduce participants to the VRA process. To review ATIXA’s official comments regarding the NPRM, please click here.
Read more ATIXA Tip of the Week blogs here.
[1] ATIXA’s Comments on the 2022 Title IX Proposed Regulations. ATIXA. (2022, September 9). Retrieved from https://www.atixa.org/resources/atixas-comments-on-the-2022-title-ix-proposed-regulations/