In 2020, the Department of Education published a Final Rule revising the regulations implementing Title IX of the Education Amendments of 1972 .The 2020 Final Rule prohibits a school from imposing disciplinary actions or other actions other than supportive measures against a respondent to a Title IX complaint before following the grievance process. 34 CFR § 106.45(b)(1)(i).
Supportive measures are non-disciplinary and non-punitive services, designed to preserve or restore equal access to the school’s programs or activities without unreasonably burdening the other party. 34 CFR § 106.30. The preamble to the Final Rule states that determining whether a particular action is unreasonably burdensome is fact specific. The preamble clarifies that housing and schedule adjustments are not automatically unreasonable burdens on the respondent. Consideration of whether a burden is unreasonable is not limited to access to academic programs. Instead, schools must consider whether the respondent’s “access to the array of educational opportunities and benefits” the school offered is unreasonably burdened. The preamble specifically notes that a schedule adjustment may be considered a reasonable burden more often than a restriction on participating in sports or extracurricular activity.
A school’s grievance process must either list or describe the range of disciplinary actions that may be imposed on a respondent if he or she is found responsible. The preamble clarifies that in listing a particular action, the school is identifying it as disciplinary and it therefore cannot be a “supportive measure.” According to the preamble, if a school lists sports ineligibility as a potential disciplinary sanction in its grievance process, then it cannot implement sports ineligibility as a supportive measure before following the grievance process. If the school does not list it as a potential sanction, then it may use sports ineligibility as a supportive measure only if it is not used as a disciplinary or punitive action and does not unreasonably burden the respondent.
A school may, however, remove a respondent from an education program or activity in some circumstances “on an emergency basis.” The school must make a determination based on “an individualized safety and risk analysis” that there is an immediate threat to someone’s physical health or safety arising from the allegations. The school must determine that the threat justifies the removal. Additionally, the respondent must be given notice and an immediate opportunity to challenge the removal. 34 CFR § 106.44(c).
According to a recent ESPN article, coaches and other school officials have criticized the limitations on prohibiting an accused student from playing sports. The article also indicates some groups intend to lobby against the rule.
In December 2021, the Department of Education expressed an intent to issue a notice of proposed rule-making regarding Title IX in April 2022. It is unclear what changes will occur with the new rules. However, a number of the due process protections have been criticized by various groups.
With the ongoing uncertainty of Title IX requirements and challenges to due process procedures, it is important for a student facing sexual misconduct allegations to contact an experienced Washington Title IX defense attorney as soon as they are notified of the complaint. Even temporary removal from a sports team can affect a student’s future opportunities. A knowledgeable attorney can help you protect your rights during the investigation, any resulting disciplinary proceedings, and if necessary, any appeals or further action. Call Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.