By: Mikiba W. Morehead, M.A., Ed.D., Consultant, TNG
The July 2022 release of the Department of Education’s Title IX Notice of Proposed Rule Making (NPRM) includes several thought-provoking and complex topics to consider prior to the Office for Civil Rights publishing the final rule, anticipated sometime in 2023. One significant proposed change expands Title IX jurisdiction for off-campus/out-of-school sex-based discrimination.
The proposed rule maintains recipient (school) responsibility for responding to sex discrimination that occurs within the recipient’s education program or activity in the United States, as well as that which occurs in buildings owned or controlled by an officially recognized student organization, a requirement also found in the 2020 Title IX regulations. The NPRM then proposed to extend Title IX jurisdiction to also include: (1) a sex-based hostile environment in a recipient’s education program or activity, even if the underlying conduct contributing to the hostile environment occurred outside of the education program or activity or outside the United States; and (2) conduct occurring under a recipient’s education program or activity in an off-campus or out-of-school setting when the conduct, or similar conduct, would otherwise be subject to some form of institutional disciplinary authority (e.g., student conduct, human resources).[1]
ATIXA has long referred to (1) above as the “downstream effects” rule related to out-of-program conduct and we have advised schools to address the in-program effects of out-of-program conduct with supportive measures, although it was not previously explicitly required. The new regulations will likely require recipients to address such instances, though it remains unclear from the NPRM what the Department of Education means by “address.”[2] This could implicate a significant shift, as many institutions have become accustomed to using available disciplinary processes outside of the Title IX grievance process (e.g., ATIXA’s Process B, student conduct) for managing allegations of off-campus or out-of-school sex-based misconduct. The NPRM suggests that may change. It remains unclear whether the NPRM will result in addressing only the downstream effects, or also the off-campus incident that catalyzed the downstream effects, but ATIXA expects that the final rule will clarify this expectation when published.
To prepare for the second category of conduct listed above, recipients should inventory their misconduct policies and review the circumstances under which jurisdiction can be asserted for each. Typically, recipients make these jurisdictional determinations when considering whether a school can discipline a student for some form of misconduct. However, depending on the type of institution (public, private, small, large) there may be precedent for extended jurisdiction for employee misconduct that occurs away from work or outside of the school day as well. This may present interesting challenges for K-12 schools, in particular, that seem to like to have their Title IX cake and eat it too, meaning that it is common for K-12 schools to refuse jurisdiction over out-of-school sexual assaults between students, but to take jurisdiction over out-of-school social media-based sexual harassment. It doesn’t appear that the regulations will support this kind of bifurcated approach, instead preferring more of a consistent, bright line rule.
Although ATIXA does not recommend this solution, this proposed regulatory provision may result in recipients choosing not to take jurisdiction for any off-campus/out-of-school misconduct. We also don’t see this “four corners of the campus” geographic limitation as culturally consonant with how most schools currently operate. Whether an institution or district chooses to assert off-campus/out-of-school jurisdiction or not, the recipient will need to ensure consistent application for reported instances of off-campus/out-of-school sex-based discrimination and other forms of misconduct occurring in a similar context. For example, if an institution would discipline a student for physical violence off-campus, then the institution must also discipline a student for dating violence off-campus.
Expanding a recipient’s authority to include all off-campus/out-of-school sex-based discrimination would increase the number of complaints most Title IX Coordinators manage, perhaps significantly. For example, most sexual assault between K-12 and community college students occurs off-campus/out-of-school. Title IX Coordinators will need to have a strong team of individuals to assist with compliance efforts – the most important members being well-trained Deputy Coordinators. In the Preamble to the NPRM, the Department of Education speaks to the importance of assigning one or more designees to assist the Title IX Coordinator with a recipient’s responsibilities under Title IX. Deputy Coordinators can assist with the management of population-specific or procedure-specific needs. Title IX Coordinators will want to consider the best structure for their teams and in what ways deputies can assist with managing the anticipate influx of off-campus/out-of-school complaints.
Another area of tension arising from the proposed rule is the intersection of free speech and increased off-campus/out-of-school jurisdiction. Students may engage in speech, either in traditional forums or via social media, that pushes the boundaries of protection established by the First Amendment. The Tinker test provides a framework for evaluating student expression in the school setting. Title IX Coordinators will need to carefully examine whether any reported sex-based speech causes a substantial disruption to the school environment or invades the rights of other individuals (established by Tinker) or could result in the creation of a hostile environment (established in the NPRM).[3] Under the proposed rule, either occurrence could trigger a formal response as described in §§ 106.45 or 106.46.
Off-campus assaults and instances of harassment can have significant effects within the school environment. Title IX Coordinators should take steps now to consult with legal counsel and other key senior leaders to discuss this change and the potential impacts on jurisdictional decisions. Here are some questions recipients should be considering while awaiting the final rule:
- Will institutional policies change regarding off-campus or out-of-school conduct?
- How much off-campus conduct a school may address may be governed by state or board policy at the K-12 levels – will those need to change?
- What other laws and policies need to be considered (e.g., overlap with Title VII, state statutory definitions of sexual harassment applicable to students and/or employees, state or jurisdiction requirements for investigation and/or external reporting)?
- How will recipients ensure all institutional policies co-exist cohesively?
- Philosophically, should in-program downstream effects be managed differently than out-of-program conduct that does not have downstream effects, and if so, why?
- How will the need for additional staff to manage the increase in complaints be handled?
Read more ATIXA Tip of the Week blogs here.
[1] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41401 (July 12, 2022).
[2] In its comment on the NPRM, ATIXA asked the Department of Education to clarify what it means by “address.” Does this refer to a formal response requirement, or something less formal?
[3] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41401, § 106.2 (July 12, 2022), pp. 657-658.