K-12 Reaction to the 2020 Title IX Regulations
Narrator: Hello, and welcome to Prevention and Protection, the United Educators risk management podcast. Today’s guest is Megan Farrell, founder of Title IX Consult, who is here to discuss the impact of the 2020 Title IX regulations on K-12 schools. Hosting the discussion is Heather Salko of United Educators’ Risk Management department. A quick reminder that you can find other UE podcasts, as well as risk management resources, on our website, www.edurisksolutions.org. This and all other episodes of our podcasts are also available on iTunes. Now here’s Heather.
Heather Salko: Hello. Megan, welcome to UE’s Prevention and Protection podcast. We are so excited to have you here today to discuss this important topic with our listeners. As a quick reminder to those listeners, this podcast will assume that you have a working knowledge of Title IX and the regulations from 2020 that relate to sexual harassment response by colleges, universities, and [K-12] schools. If you do not and would like more information with regard to these regulations, please see United Educators’ Title IX landing page on our website, www.edurisksolutions.org. And Megan, again, welcome to United Educators podcast.
Megan Farrell: Thank you, Heather.
Salko: We’re so happy to have you. And before we jump into the topic itself, I want to let listeners know a little bit about your background because you have a lot of experience, especially in this area. You are a lawyer by training. You do have experience both in-house as a counsel, but also in other roles. You’ve experienced teaching on a college campus. And obviously, we’re coming to you because you have experience as a Title IX Coordinator both in higher ed, but also in the K-12 arena. And you are now a consultant working with school districts and colleges, universities, other institutions. And I know that you most recently worked at a number of different school districts out in California, where you reside, including Berkeley, Los Gatos-Saratoga, and Palo Alto, both as an interim or acting Title IX Coordinator and as a full-time Title IX Coordinator at the Palo Alto school district. So could you just talk a little bit more about your experience and what you’ve done in these roles?
Farrell: Sure. So prior to joining Palo Alto, as you mentioned, I worked as a Title IX Coordinator at a college. And then I worked at a law firm that was focused on Title IX enforcement, and I trained a lot of college administrators and worked with smaller colleges around their Title IX programs, how to conduct investigations, writing policies and procedures, and helping them review their investigations. So when I joined Palo Alto, they were looking for their first full-time Title IX Coordinator, which was pretty unique in the K-12 school district area. They couldn’t find anybody that had both K-12 and Title IX experience, so I got the job based upon my college experience. Normally, you would find that these kinds of school districts, that they would have an HR Director or an Assistant Superintendent just have that Title IX role in addition to all of their other responsibilities.
Heather Salko: That’s actually interesting to know and good for our listeners to understand. Obviously then, you were still in that role at Palo Alto at the time that the final Title IX regulations were released back in May of 2020, which seems like a lifetime ago, but wasn’t quite a year ago yet. And then obviously, the implementation requirements were for August of 2020. Can you just talk, besides the resolution agreement ... we’ll set that aside for a second. But what was the general atmosphere in K-12 like with regard to Title IX prior to the regulations? And then can you talk about how the regulations were received by the K-12 community? And I know you might only be able to speak to California, but that’s fine.
Farrell: OK. So I would say sadly, most K-12 districts, even in 2020, didn’t have a really proper Title IX program in place. Some really were still thinking that Title IX only applied to athletics. So they wouldn’t have had policies or procedures that were compliant with the regulations prior to 2020. So they had to take steps to change their policies and procedures. And many hadn’t changed them since the Trump administration had come in. So there was some guidance that came down in a Dear Colleague letter of 2017 that made some changes. But what I found dealing with districts both in California and externally was that they hadn’t made changes to the policy in response to that 2017 guidance. So the 2020 guidance, which was in line with some of those regulations but had some distinctions, was really a huge jump for most districts. So it would be often that districts relied upon police investigations when there were allegations of criminal actions like sexual assault.
And also, it was districts that really had to face some significant negative consequences. Either they received litigation from students or they were investigated by OCR, or there was public outrage about the way they investigated a matter, or the failure to investigate. And those districts would have taken some actions towards compliance, but not a lot of them were doing much more than athletic compliance. In one instance, I reached out to a district that had a sexual assault that happened on campus. It was widely covered in the newspapers. And I would routinely reach out to folks and say, “Hey, I’m Title IX Coordinator at Palo Alto. We’ve been through something similar. If you need help, let me know.” And I would get the response, “This isn’t a Title IX matter. We don’t have a Title IX matter.” And from the public press coverage you’d know that it certainly fit squarely within Title IX, but people just didn’t understand that. So unfortunately, I think it remains the case today that many, many districts don’t fully understand the scope of Title IX and what their responsibilities are.
Salko: That’s disheartening, especially because the regulations carry the force of law. It’s not just guidance. Do you think there’s some educating that needs to be done still?
Farrell: Yes, definitely. For sure, I think there’s a need to educate this community and for it to be a part of larger group discussions in Palo Alto. We were lucky enough to have the American Association of University Women. The local chapter helped bring the Title IX Coordinators together so people had a better understanding. And it’s sometimes those community groups that are helpful. But I definitely think there’s a lot that needs to be done.
Salko: Well, hopefully this will help some of our school district members who are out there and others to spread the word. Let me then turn to ... When you first saw the regulations, as you mentioned, they were in line with some of the 2017 guidance that came down from the Trump administration, but not entirely the same. So what was your reaction? And obviously then, you must’ve seen a lot of work to be done elsewhere. How’d you figure out what changes needed to be made in terms of the Palo Alto policies and procedures to sort of get them really in line with the regulations themselves?
Farrell: Well, we definitely knew that there was going to be a lot of changes that were necessary. Our policies and procedures were in line with our OCR review, which most people would say took place when the Title IX regulations would have provided a lot of protection for victims. So we knew that we had a lot to do, and we knew that we had to conduct investigations differently. We knew that our policies and procedures had to change. We also knew that there was a lot of training that was needed for both staff and also for students. But for me as Title IX Coordinator, one of the things I had to do was make sure I was completely up to speed. And so I engaged in some training and made sure that I knew what I was talking about and then came back and we took a look at policies and procedures and had the benefit of the California School Boards Association, which as a paid service to members, issues a form policy that most districts would then use and then tweak to make it fit within the culture or the process that they have in place.
So we were lucky enough to have the California school boards provide that. Now, if you remember, August was the date that you had to have these things in place, and we didn’t get anything from California school boards till the end of July. So there was a lot of scrambling. And I think if you look at policies and procedures at many districts, they haven’t yet adopted the policy and procedure that’s in accordance with those new regulations because of the time-consuming process it takes to get through board approval.
Salko: Right, because schools aren’t necessarily empowered to just make these changes on their own. They do have to be ratified by a school board. And I can imagine that a scramble to meet a deadline, which was already tight even for institutions such as colleges that are able to just implement policy changes, that must’ve been a real challenge. And I can see how it would continue to be a challenge for schools. But would you expect schools to have compliant policies in place by now?
Farrell: Well, I wish I could say yes, but I have seen a number of districts that don’t have these policies and procedures in place. And I was part of a training that took place just yesterday that had to do with, “What are the things you need to do under Title IX?” So I think that the distraction of the shelter in place, COVID, the pandemic, has really been at the forefront of the K-12, and also I know other higher ed institutions, but it has been almost as if we can’t deal with that situation because we have these other emergencies.
So while we would hope that most school districts have these policies and procedures in line, the truth is many of them don’t. So outside of California, for instance, I’m not sure how much guidance other school districts are getting. There are even in California, aside from the California school boards, there’s even counties that have assisted in providing form policies and procedures to districts within the county that would be inclusive of any local ordinances that might influence Title IX or its enforcement. But again, I think that California might be at the forefront of some of that.
Salko: That’s interesting. California is at the forefront of many things when it comes to the law. Like you said, the benefit of having the California School Boards Association help with providing a form policy that may not be happening elsewhere, but have you heard of any states where that might be happening? Just because we might have listeners who then should perhaps consider reaching out to an association.
Farrell: I would begin with your school boards association. I think some are making steps or strides towards this, but I would also say that just to underscore it, it is a paid service that some districts can afford and other districts can’t, but you can always look at the policies and procedures that are available at other districts. That’s something to take a look at. There’s also state departments of education that are taking some of these initiatives on and producing policies or offering trainings around how to produce your policy so that it is compliant with all of the new regulations.
Salko: Perfect. That’s really good advice. I want to turn now to just some specifics about the regulations and then the on-the-ground reality of having to use these regulations to inform your policy and then apply them in practice. And first, I wanted to just talk about this idea of a notice requirement to the school, because the school can only be responsible for responding to and correcting harassing behavior for which it has actual notice. This stems from a long line of legal cases. And then the school must respond in a way that is not objectively unreasonable. It must be a reasonable response. What will put a school on notice under the current regulations?
Farrell: The regulations are pretty clear that a district is on notice when someone witnesses behavior or they know about behavior. Most often, students go to an administrator, maybe even a teacher, and provide information about things that they have seen or things that they have experienced. That to me is certainly notice that causes us to have a reaction at a district. So when an employee receives that notice, the way most policies work is that information goes to the Title IX Coordinator and then a formal process is offered. One of the distinctions between K-12s and colleges and universities is exactly which employees that information goes to and what responsibilities they have.
I’ll also mention that over the summer, many K-12 districts, similar to higher ed again, had some of the #metoo movements on Instagram and other social media platforms that provided information about incidents that involved their students sometimes happening on campus. And also, school districts often have an anonymous line or anonymous way for people to report things. And even though you don’t have all the details, it would really be incumbent upon the districts to respond to that and take a look at whatever information they have to go down, whatever avenue they can to see what’s going on. That’s really important in order to prevent behavior from continuing.
Salko: In addition to notice, Megan, a lot was made in sort of the higher ed world about the requirements in the regulations of a live hearing and live cross-examination to determine the veracity, if you will, of complaints. What then are K-12 schools required to do, especially because most of the complainants may, in fact, be minors? How are the requirements different or how are they the same?
Farrell: This an area where I think the K-12 school districts really have some benefits in those new regulations because it is not required that an investigation is then brought to a hearing panel or a hearing officer before it’s concluded. And that distinction is really important when you think about the possibility of cross examination of some of these students who are underaged, so a 15- or maybe even a 12-year-old being cross-examined by somebody who’s trained as a litigator is a pretty chilling feeling and effect on investigations. So there is not a requirement for hearing panels. K-12s are permitted to do them. I haven’t heard of anybody that’s accepted that challenge. I would also say that one of the other big challenges and something I get questioned about when I do training from boards, from staff, from students, and also from parents, I hear the question of, “How are you going to keep the student information confidential?”
The confidentiality under investigations of formal complaints has pretty much been eliminated under these new regulations. I would say in the K-12 space, when compared to the college and university space, it would have been very frequent and very often that investigations were conducted when a witness brought information and said, “But you can’t tell them it was me.” Sometimes a complainant would say, “This is happening to me, but I don’t want you to let that person know that I brought this complaint.” So there’s a real concern about the chilling effect that this will have on witnesses participating in investigations and also on parties participating in the investigation process when certain information is not going to be able to be confidential anymore and there’s a huge fear of retaliation.
Salko: I can imagine that fear of retaliation is real. How do you go about combating that in the K-12 atmosphere?
Farrell: This is another area that’s kind of complicated because we can’t necessarily say that you’re not going to experience some negative repercussions. I know as an investigator, I often sit down and talk to parties and say something to the effect of, “We can protect you against retaliation. So if a coach stops playing, you on a team because you brought this complaint or a teacher gives you a bad grade because you brought this complaint, we can do something. But if someone won’t sit down with you and have lunch anymore or won’t talk to you or won’t chat with you and meet you on the weekends, there’s really not much we can do about that.”
So I think being really open and frank with the people that are participating in the investigation is important. And then managing the social and emotional growth of those individuals. So making sure they have access to counseling, making sure they have access to a confidential person that they can speak to, but also somebody in the administration that they feel is their point person that they can go to if they’re having problems at school.
Of course, retaliation is a problem anytime anyone brings a complaint, but now, with the complete opening and transparency in these investigations, there’s just a lot more people who are concerned that they may face retaliation. And the truth is it could happen for a lot of folks.
Salko: That is one of the unfortunate, perhaps, byproducts of these new regulations and maybe an unintended consequence. But moving on from retaliation, I do want to touch on the fact that the regulations, in addition to the notice requirement and then the hearing not necessarily being required by K-12, but there is this other aspect that relates a lot to hearings, but we know that it applies in other parts of the investigation, and that’s the right of the parties to have an advisor. How does that work in the K-12 context, and is that advisor the parent automatically or not?
Farrell: So it’s really important that your policies and procedures identify that an advisor is something that both parties can have. So that is something that is included in not only policies and procedures, but any communication you have with the parties to make sure that they understand that they’re allowed to have the use of an advisor. I would say in the past, these advisors were parents, for the most part. And at most school districts that I talk to nationally, it is often the parent that serves in that advisor capacity.
However, in some school districts that have some more financial means of the parents as well as maybe even a bit of the culture of the school district itself, students would have hired attorneys to be part of this process. So it is definitely something I’ve seen in the K-12 area. Having worked in Palo Alto and worked in other districts that have more financial resources, they’re wealthier districts, essentially. Parents having access or the ability to pay for attorneys was definitely something I saw before these new regulations and definitely something I expect to see in the future. I think that we’ll see more attorneys for the communities have that financial ability, but we’re also going to have to do a better job making sure that if a parent is serving as advisor, that they really understand the process and procedure that’s in place.
Salko: Great. And one of those parts of the process and procedures in addition to notice and the advisor is the right to see the investigative file before there is a final determination made. Can you talk about how that works now in the process and how that maybe has changed things as well as, does it slow the process down? Does it create unanticipated problems? How do you deal with that requirement?
Farrell: We’ve talked a little bit about the possibility of chilling participation in parties and witnesses, but the need to share the full file also is going to be a challenge from maybe a technology standpoint. Many districts still operate in terms of forms being in paper and making sure that you share that information with both parties, the information gathered in the investigation, but that it’s not able to be reshared is a little bit of a technology issue for school districts that may not have the financial means or the advanced file-sharing knowledge that we might see at a college or university.
The other thing is that just that sharing of all of that information is going to be a difficult thing to handle when one big challenge for districts is keeping all of the records together. So while you are conducting an investigation, you’re gathering information, you really need to be able to produce everything that was gathered before the investigation began. Those kinds of things, I don’t think districts do a great job in their documentation of matters.
Salko: That is definitely going to be a challenge for some districts, maybe more so than others. You touched upon this a little bit earlier about how a lot of schools make changes in the Title IX arena or to their policies and procedures based on criticism of an incident that is taking place or even press about an incident. Schools generally have been criticized on the K-12 level for not taking reports of especially student-on-student sexual harassment and sexual assault seriously. How do you see that these new regulations impact that past practice or even the perception of that past practice?
Farrell: One of the challenges I think that school districts deal with is the fact that they have, in many instances, relied upon police investigations when there’s been criminal matters that happened on their campus. Aside from relying upon that criminal investigation, they would often feel they couldn’t conduct an investigation because there’s a criminal matter pending. They would delay starting any investigation or really feel like, “This is a criminal matter. This doesn’t really involve school,” and just not undertake an investigation. So I would say it’s very clear that school districts have to do this. I would also say that in reaction to very negative press, school districts have gotten up to speed often in the Title IX area. But a big problem has to do with this idea that if we can’t report back to the parties involved or to the public exactly what happened in our investigation, then we did nothing.
There’s definitely a perception that if we don’t go through a process that’s very public, like a criminal investigation, often there would be coverage about whether charges had been filed and things like that, that we’re doing nothing. I think that that’s a big challenge in K-12 districts and that this idea that information should be shared freely, but you have student confidentiality issues that you have to take into account as well. It’s difficult. I think that there’s really nothing a district can do when they have gone through their investigation process and they’ve taken the steps they need to. What has been done when asked by the community is not really something we can respond to. It’s a big challenge and definitely one that most districts face whenever any one of these kinds of incidents gets some publicity or press or even social media coverage.
Salko: I can certainly see that being a challenge. That may lead to a little bit more of the next topic I’d like to address, which is the idea of the regulations do allow for informal resolution after a student has filed a formal complaint or if a parent has filed that formal complaint on behalf of a student who was a minor. We know that informal resolution can take many forms. For some schools, that might be restorative justice. Others, it might be mediation or other sort of shuttle diplomacy that doesn’t require the parties to necessarily meet. Can you talk about the informal resolution options that are available to K-12 schools and how that process works and any limitations it might produce?
Farrell: Well, Heather, the informal process and resolution of matters informally is something that K-12 districts always do. It wouldn’t be unusual for an Assistant Principal or Principal to get notice of something, interview students, resolve it all within the course of a day. So that is something that districts have done in the past. The new regulations require a little bit more formality around the informal resolution process, if you will. You need to have a formal complaint that’s been filed and you need to have a process that you really outline to the parties exactly what’s going to occur. You have to get them to agree to participate, and then you have to detail what the agreement was at the end if you do reach resolution that way. I would say it’s going to be a challenge for districts not to incorporate this, but to be much more documentation-oriented in informal resolution. I think that that’s something that is going to require a lot more attention if you go through the informal process.
But again, school districts definitely often use informal resolution processes, and some school districts even have very robust programs in place to deal with any kind of student complaint, like using restorative justice methods. Oakland’s school district has an entire office that deals with restorative justice in dealing with complaints amongst students. So I think K-12s are well-suited for the informal process. They’re just going to have to put in place some safeguards, some protections, and document that process in a way they haven’t been doing in the past.
Salko: That’s helpful to remind people of the need to document what you may have already been doing on a regular basis. So Megan, as you yourself were working on both understanding the regulations and then implementing them as a Title IX Coordinator, and then now, obviously you’re consulting with schools and colleges around the country: Are there challenges that the K-12 schools face that maybe listeners haven’t really anticipated? Or maybe they have, and they’ve been afraid to face them. So can you talk about some of the challenges you’ve seen?
Farrell: Yeah. One of the biggest challenges is that many higher ed institutions would say that the regulations that come down from OCR often lump institutions into this idea that everybody is a four-year institution with people living on campus and that kind of thing. I think the K-12s have an even more difficult time trying to translate what the regulations mean to a K-12 school district. There’s this idea that often, K-12s aren’t contemplated when the guidance is being given, and they have unique challenges. One of the things I always said was, “It’s really tough when students are going to be at school and they’re going to be in the same hallway every day.” That’s different than a college campus where Monday, Wednesday, Friday, you have one schedule and you might run across somebody, but Tuesday, Thursday, you know you’re never going to run across that person. So there are some challenges there.
I will also say that there’s not a lot of resources available for Title IX enforcement at K-12s, and many individuals that I speak to attend trainings or get documentation forms and things like that that they have to retrofit for the K-12 area. So that’s a challenge. I will say when I conduct trainings for K-12s, they’re always very excited about the fact that you’re thinking in terms of their population. So you’re talking about principals and assistant principals, students. Even a term like faculty members usually turns the K-12 audience off because they’re thinking, “You’re only thinking in terms of colleges. You’re not thinking about me.” So that’s a tough one. Then also, the budgetary restrictions at K-12s often limit what type of training people can receive.
And then the adoption process, as we talked about with regard to policies, is very slow. It’s not something that happens really quickly. If you were at a private institution, a private college, you could change your policies. You’d go through an approval process pretty quickly. With K-12s, you’re often looking at bringing something in front of the board and then having the board consider it for a month before a decision is made about whether to adopt it, and add that into the fact that your K-12 Title IX Coordinator often has other responsibilities they have to deal with. And you can see how the timeline for adoption of policies and procedures that are compliant can be really drawn out in that area in the K-12 districts.
Salko: Definitely a challenge to that may be the regulations don’t necessarily contemplate, or certainly their implementation timeline didn’t. Before we wrap up, I just want to ask, are there any other things that you’ve seen or any other areas that we haven’t touched upon that you think it’s really important for K-12 schools to think about or to know about?
Farrell: One thing that comes to mind as we’ve been in this shelter in place is that certainly, K-12s, colleges and universities, have been often operating at 100% online atmosphere. That then becomes your classroom. Sure, you’re online, and if something happens in the Zoom classroom, and that’s history for the juniors, you know you have to respond to that. I think most districts understand that concept. But it’s also this idea that what I’ve seen in the K-12 atmosphere is that districts don’t pay attention to this until they are really behind the eight ball or in the fire. And my consulting business, one of the things we do ... we call it Title IX triage ... is we come in the middle of that and help them deal with everything. That means getting policies in place, setting up procedures, conducting investigations. But if there is any time in your schedule during this school year to get those policies and procedures in place, get them on your website, that’s something that K-12 should be focused on because if you wait until the fire hits, you’re just not in a position to thoughtfully go through these processes.
Another thing is to make sure that you’re providing training, and most K-12 districts do trainings for their teachers and their administrators, all staff in the summer before school starts. So usually, teachers and staff are in a couple weeks before school starts. Even if you can’t devote a long time, like say a half day to Title IX, see where you can fit it in and make sure that you’re providing that kind of training, particularly because K-12, all employees are responsible for reporting Title IX. So if you think about your teachers and your staff, and you think the people that work in your cafeteria and the people that are custodians and the people that are out maybe taking care of your grounds, all those people need to understand Title IX. So how can you fit that into your annual training?
And then also, the documentation issue is a big one for K-12. So making sure that documentation is being kept and it’s being tracked and you are making sure that you’re kind of ticking all the boxes, you’re offering support measures, you’re conducting investigations, you’re reaching conclusions. And something I did as a Title IX Coordinator, I often took on the role of keeping all that documentation because I wanted to make sure the information was gathered in one central location. Making sure that you’re gathering and keeping that documentation will be very important to show that you really are taking your best efforts to compliance.
Salko: Megan, thank you so much. There’s so much more about these regulations and their implementation that we could discuss, but we’re running up against time constraints and we could be here all day if we don’t stop. But I appreciate you sharing these big lessons and these big themes of areas where schools should be really keeping the regulations in the forefront and making changes. Thank you again for sharing your expertise and your experience. And we were so happy to have you.
Farrell: Thank you, Heather. It’s been great to be with United Educators and help with this podcast.
Host: From United Educators Insurance, this is the Prevention and Protection podcast. For more episodes and risk management resources, visit our website, www.edurisksolutions.org.