The United States Department of Education recently closed the public comment period for its proposed Title IX regulations, and school boards and administrators must be ready for significant changes in the coming months.  The regulations, while not yet finalized, will replace existing guidance from the Office for Civil Rights regarding in the investigation and remediation of sexual harassment in educational programs or activities.  School boards and administrators should therefore be prepared to revise their sexual harassment policies and procedures to comply with the regulations, which will be no simple task in light of the proposed changes.

School boards and administrators are strongly encouraged to examine the proposed Title IX regulations and related materials in full and consult with attorneys regarding revisions to their policies and procedures.  The following highlights from the regulations, as originally proposed, are offered as a primer in the meantime:

  • Defining sexual harassment.  The proposed Title IX regulations will narrow the existing definition of sexual harassment to any of the following:
    1. An employee of [the school board] conditioning the provision of an aid, benefit or service of [the school board] on an individual’s participation in unwelcome conduct (“quid pro quo”);
    2. Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to [the school board’s] education program or activity (“hostile environment”); or
    3. Sexual assault, as defined in existing federal regulations.
  • Remember, while a hostile environment typically requires more than one instance of unwelcome conduct, even a single incident of quid pro quo harassment or sexual assault could constitute sexual harassment under the proposed definition.
  • The standard of knowledge.  Under the proposed regulations, a school board will need “actual knowledge” of sexual harassment in an educational program or activity in order for its response to be scrutinized.  A school board will have such knowledge if sexual harassment is reported to a K-12 teacher, Title IX coordinator, or official with authority to take corrective action.
  • The investigation requirement.  School boards will have to investigate every formal complaint of sexual harassment.  A meaningful response will be required for every known report of sexual harassment, even if a reporter does not want to make a formal complaint.  A school board will violate Title IX if it is “deliberately indifferent” in its response to alleged sexual harassment, which means that the response was “clearly unreasonable” in light of the known circumstances.  By contrast, a school board will not respond with deliberate indifference if it follows its policies and procedures in response to a formal complaint of sexual harassment.
  • Grievance Proceedings.  If an investigation of sexual harassment is substantiated, the accused student or respondent will be entitled to a formal or informal hearing wherein the school board must prove that the harassment occurred.  School boards may adopt a stricter “clear and convincing evidence” standard of proof, or keep the existing “preponderance of the evidence” standard if it is also used for other code of conduct violations with the same maximum disciplinary sanctions.  Significantly, the proposed regulations include a lengthy list of rights which must be afforded to complainants and respondents alike.  These rights include, but are not limited to, access to pertinent records, the opportunity to present evidence and examine witnesses, and to consult with an “advisor” of one’s choice.
  • Remedies.  School boards must provide appropriate remedies to restore or preserve a complainant’s access to educational programs or activities, regardless of the outcome of any grievance proceedings.  The proposed regulations include a nonexhaustive list of “supportive measures” which may be made available to complainants and respondents at any stage of the process, such as leaves of absence, no-contact orders, changes to class schedules, and counseling.  In cases where remedies or supportive measures are required, school boards must ensure that they are provided on an individualized basis instead of using a “one size fits all” approach.
  • Training and recordkeeping.  School boards will have to provide training to Title IX coordinators, investigators, and other decision-makers regarding the definition of sexual harassment and the investigatory and grievance processes.  The proposed regulations will also require school boards to create and maintain records documenting all Title IX sexual harassment investigations, which may be accessible to complainants and respondents.

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters, including Title IX investigations, in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com. 

If they have not already done so, school districts in Connecticut must take affirmative steps to align their policies and procedures with the State Department of Education’s (CSDE) Standards for Educational Opportunities for Students Who Have Been Expelled.  Originally promulgated in January 2018, the Standards detail the legal requirements for providing Alternative Educational Opportunities (AEOs) to students who have been expelled, and establish guiding principles for the development and implementation of mandatory Individualized Learning Plans (ILPs).  In addition to updating their policies and procedures, school districts are urged to develop standard forms to ensure the consistent implementation of ILPs, improve recordkeeping, and reduce the risk of liability in the event that AEOs are called into question.  

By way of background, Conn. Gen. Stat. § 10-74j defines “alternative education” as a school or program maintained and operated by a local or regional board of education that is offered to students in a nontraditional educational setting and addresses the social, emotional, behavioral, and academic needs of such students (emphasis added).  Conn. Gen. Stat. § 10-233d requires local and regional boards of education to offer an AEO to (a) any student under sixteen (16) years old who has been expelled, and (b) any student between sixteen (16) and eighteen (18) years old who has been expelled for the first time, wishes to continue with his or her education, and complies with the conditions set by the board.  While school districts have long provided homebound tutorial and similar instruction for expelled students, such programs typically only address the basic academic needs of expelled students, and do not address the other areas of need that may have contributed to the situation that resulted in the expulsion in the first place.  This descriptor, that the program must address the student’s social, emotional and behavioral needs, signals to school districts that they must give additional thought to those unmet needs and plan programming to address the student’s needs as part of the AEO, hopefully returning the student to the general education setting at the conclusion of the AEO in a better place, ready to commit to staying and learning successfully in that setting.  

In 2016, the CSDE promulgated Guidelines for Alternative Education Settings, which applied to students who required an alternative education setting for reasons other than expulsion, such as academic, attendance, or social/emotional/behavioral issues.  The CSDE specifically cautioned, however, that the Guidelines were not to be construed to govern the mandatory AEO required to be offered to expelled students.  Instead, in January 2018, the State Board of Education (SBOE) adopted the Standards, which apply specifically to students who have been expelled.

The Standards clarify that, in accordance with Conn. Gen. Stat. § 10-233d, an eligible student who has been expelled must be provided with an ILP to inform and direct his or her learning goals and activities during the duration of the expulsion.  After issuing the Standards, the CSDE drafted a model ILP, but did not approve a finalized version for school districts to either adopt or use as guidance in the development of their own ILPs.  Some school districts, however, have responded proactively by updating their policies and procedures and creating their own AEO materials to conform with the Standards and applicable State law.

Those school districts looking to update their policies and procedures should first look to the Standards for step-by-step instructions to follow from the time an eligible student is expelled to the time he or she begins an AEO.  The Standards specify that district personnel should inform parents and students of the right to apply for early readmission at the time of expulsion, and subsequently meet with them to discuss potentially appropriate AEOs.  District personnel should then gather information regarding the student’s academic, social, and behavioral history from knowledgeable sources, and ultimately convene a placement meeting to identify an AEO and develop an ILP.  The Standards further dictate the steps that should be taken for periodically reviewing and revising students’ ILPs, transition planning and, ultimately, exiting them from their AEOs upon the expiration of their expulsion periods.  For expelled students with Individualized Education Programs (IEPs) or Section 504 Plans, the aforementioned steps and decisions must be made by the Planning and Placement or Section 504 Team, as appropriate.

Those school districts still in the process of developing AEO materials for expelled students should consider updating their policies and procedures to include step-by-step entry and exit procedures that correspond with the Standards, and developing standard forms for use during the AEO referral process and all ILP meetings, regardless of whether an expelled student requires special education and related services or not.  If an expelled student does require special education and related services, all such materials, including the student’s ILP, can be attached to his or her IEP or Section 504 Plan.  School district should also consider developing model behavior contracts for students to abide by while receiving their AEOs, which can be modified based on the circumstances of a student’s expulsion.  

School districts should also begin to develop the required ILPs to document the modality of instruction students will receive in their AEOs, such as small group instruction, individual tutoring, or online coursework.  As prescribed in the Standards, these ILPs also identify the student’s core classes at the time of expulsion, their progress in the curriculum of those classes, and the goals and interventions designed to remediate their academic and behavioral needs.  The ILPs specify the benchmarks that will be used to measures a student’s progress towards his or her goals, the timing and method for reviewing and communicating progress, and the requirements that must be met before exiting the student from the AEO.  Finally, the ILPs reference all relevant records, such as IEPs, Section 504 Plans, and academic and behavioral data, and provide for the timely transfer of records to and from the student’s AEO and the regular education setting.

Updating  policies and procedures and developing AEO materials to align with the Standards will enable the district to comply with State law and minimize the risks of liability in the event that AEOs are called into question at the individual or district-wide level.  This will help to ensure the timely and consistent provision of effective and complete AEOs to expelled students, who are often the most in need of intensive instruction and supports.  Remember that the State Department of Education’s position, as articulated in the Standards, is that provision of homebound instruction 10 hours per week, alone, is unlikely to meet the Standards.

The Standards and a corresponding letter from the State Commissioner of Education to the Superintendents of Schools are available via the following web links:

https://portal.ct.gov/-/media/SDE/Publications/Standards-for-Expelled-Students.pdf?la=en 

https://portal.ct.gov/-/media/SDE/Digest/2017-18/Standards-for-Expelled-Students-Memo_.pdf?la=en 

Attorneys at Berchem Moses PC are available to consult school districts regarding regular and special education matters in the State of Connecticut, including the development of policies, procedures, and standard forms for AEOs.  For further information please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com. 

 

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