K-12 and Title IX: Strengthening Enforcement to Protect Students

A classroom with rows of wooden desks facing a blackboard showing a music theory diagram, flanked by a map and another chalkboard.

Education secretary Betsy DeVos has been in the news again—this time, calling for strengthening Title IX enforcement in K-12 schools as a response to increasing sexual misconduct and harassment allegations in elementary through high schools. DeVos’ office is particularly concerned about claims in which a teacher harassed or assaulted a student.

What is Title IX?

Title IX is a federal law that makes discrimination on the basis of sex illegal in any school or school-related program that receives federal funding—that is, K-12 and up through higher education like college or graduate school. This protection covers everything from admissions and housing to financial aid, scholarships and sexual harassment. 

Since almost all public schools receive some form of federal funding (and even some private schools), the vast majority of American students are protected by Title IX.

How has Title IX enforcement previously been handled?

Title IX has always protected K-12 students, but over the last decade, the number of complaints from K-12 students has increased fifteen times over previous numbers. Sexual harassment, misconduct and assault have always been present in schools, but with increasing social awareness, more students have the courage to report it. 

That doesn’t always guarantee a positive outcome, however. Many schools simply fail to investigate claims or to investigate them properly, sometimes resulting in tragedy—one student killed himself after suffering two years of bullying after he came out.  Sometimes, the cases are grossly mishandled, such as one girl who was raped by another student on campus, then expelled and sent to an alternative school with her rapist. 

In both of these cases, the U.S. Education Department’s Office for Civil Rights investigated and found that the schools did not uphold their duties under Title IX to protect their students. Experts suggest that colleges are usually better equipped to handle Title IX issues, while K-12 schools have fallen behind. In fact, DeVos started off her appointment under heavy criticism that she would reduce Title IX protections if the Department of Education implemented new regulations bolstering due process rights for accused students.

It is an open question how Title IX interacts with state laws and other federal laws at the K-12 level.  States already have statutes that guarantee minimum due process rights to students facing expulsion in K-12 schools, and other statutes such as IDEA (Individuals with Disabilities Education Act) provide strong guarantees to public education, which do not exist for institutions of higher education.

What can we expect from stronger K-12 Title IX enforcement?

DeVos suggested that stronger enforcement will come in the form of compliance reviews and “raising public awareness,” focusing particularly on adults who have been accused of assaulting students. Raising public awareness apparently entails collecting more data about sexual assaults and misconduct to inform Americans that this is a serious problem.

It sounds as though the OCR will also target “pass the trash” operations, in which school officials help an accused staff member find employment in another district or state. This is illegal, but has been known to happen. 

It is unclear from DeVos’s statement whether the Office for Civil Rights plans to focus more attention on student-on-student misconduct as well at the K-12 level. This is currently where the bulk of litigation has focused concerning the college level. 

As students become better equipped to report bullying, harassment and assault, it will be imperative that administrations enforce policies which comply with Title IX, offering well-thought-out protection to the victims as well as due process rights to the accused. If you believe your child has a Title IX claim, call an attorney right away.  Many claims, such as “bullying” are not enforceable, but if bullying takes the form of explicit sexual violence or harassment, it will be actionable under Title IX.

Title IX’s protections extend from K-12 all the way through higher education and are designed to prevent sex discrimination from happening—and to provide remedies if it does. The team at Allen Law is happy to review your case.