Title IX + IDEA = NBD? OMG!

Some of the most important and confusing questions we receive from K-12 school administrators regarding Title IX involve two other important Federal laws, the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act. Those laws require public school districts to provide a free, appropriate public education to students with disabilities and include a myriad of rules that must be followed when educating such students. When can a student with disabilities be involved in a Title IX case? When can they be removed from school through Title IX processes? What steps must be followed to impose discipline on a student with an Individualized Education Program (IEP) or Section 504 Plan? Read more for the answers to those questions, and more, to turn the mix between Title IX and the IDEA from OMG to NBD (no big deal)!

Can a student with a disability be involved in a Title IX case?

Absolutely. If a student with a disability is alleged to be the victim or perpetrator of sex-based misconduct that, if substantiated, would be covered by the Title IX rules and related district policy, they can and should be a party in a Title IX case. Covered conduct includes sexual assault such as rape and fondling, dating violence, stalking, and any other unwelcome sex-based conduct in an educational program or activity of the educational institution that is so severe, pervasive, and objectively offensive that it effectively denies equal access to the educational program or activity.

Remember, too, that even if the conduct alleged is “non-Title IX” sex-based misconduct not covered by Title IX–such as unwelcome conduct based on sex that is severe, but not pervasive, or pervasive, but not severe, or conduct occurring outside of the education program or activity our outside of the U.S.–it is likely covered by a school district’s policies prohibiting other types of sex-based behavior. Although those policies may not require the same “procedural hoops” as Title IX, they often still include important procedural steps that should not be ignored, even if a student with a disability is involved in the matter.

So, no matter what characteristics students involved in a dispute involving sex-based misconduct have, find the right policy and follow it to a T to address the allegations. Having a disability does not provide a “Get Out of Jail Free” card for Title IX or other sex-based misconduct processes.

What if a student with a cognitive disability appears to have consented to sexual behavior with another student? Can we discipline them for engaging in an inappropriate act?

Although most individuals with disabilities are capable of consenting to sexual behavior, issues of consent can be challenging when one or more students with a cognitive disability are involved in sexual activity in the school environment. We often discipline students for indecent acts at school, but doing so when one or more students with a cognitive disability are involved can trigger some of these tricky consent issues. We addressed this as one of many hypothetical situations in our free webinar, Collaboration for the Win! Title IX and Special Education, earlier this year.

The short answer is that building administrators should be careful before disciplining a student with a disability who seems to have consented to sex-based behavior but whose disability could call the ability to consent into question. In an ideal world, building administration would have a conversation with the Title IX Coordinator or their designee and the student’s disability case manager or other employees knowledgeable about the student’s disability before imposing discipline.

At a minimum, if a student or the student’s parent reports that Title IX sex-based conduct was non-consensual, the appropriate response is to give them the option to file a formal complaint and, if they do, investigate the complaint to determine if the claim is supported by the evidence. At that point, you certainly will need to loop in those knowledgeable about the student’s disability to help the decision-maker decide if the capacity to consent is a valid concern.

If a student’s sex-based misconduct is a manifestation of their disability, do we really have to go through the whole Title IX process?

Yes. But why?

Those in the know realize that if the discipline of a student would be a significant change in placement, a manifestation determination review must be conducted before the discipline is imposed. A significant change in placement due to discipline means: (1) a removal from class or school for longer than 10 consecutive school days, or (2) a series of removals from class or school that together total more than 10 school days in a school year and constitute a pattern of removal. If an MDR finds that the conduct was either a manifestation of the student’s disability or was the result of the school’s failure to implement their IEP or 504 plan, the change in placement cannot occur. The student should remain in their previous placement and a Functional Behavioral Assessment should be initiated if it has not been already.

So, what if it is obvious before the Title IX process begins that the student’s conduct was a manifestation of their disability? Too bad. The Title IX rules do not include an exception that allows us to skip the process for that reason. And that honestly makes sense. Why? Discipline is only one of many remedies that a school district can put in place if there is a finding that a student engaged in sex-based harassment. One important remedy that often is ignored is telling the victim that, yes, we determined you were subjected to sex-based harassment. You can do that and many other things even if no discipline can be imposed.

Will we ever start the Title IX process with an MDR if the accused is a student with a disability?

Sometimes!

We may need to do an MDR at the beginning of the Title IX process to justify a change in placement based on an emergency removal or supportive measure. In these cases, we consider whether the alleged conduct, if substantiated, would be a manifestation or caused by a failure to implement. This initial MDR does not impact whether we do an investigation; it is limited to the emergency removal/supportive measure issue.

But wait, how do we do an MDR before we know what the student is responsible for doing?

MDRs are usually conducted after the administration finds sufficient evidence that a student with a disability engaged in misconduct but before discipline is imposed. However, the Title IX rules say that you can’t find a student responsible for Title IX misconduct until after the investigation has been completed. It seems at first blush like the proverbial catch-22.

Like many conflicts between Title IX and other laws in K-12, the Title IX rules ignore the issue and provide no guidance on how a school should proceed. But school lawyers generally agree that you can do the MDR at this early stage based on the allegations. In other words, assuming the allegations are true, would the conduct alleged be a manifestation of the student’s disability or result from a failure to implement the student’s plan? If the answer is yes, your ability to implement an emergency removal or supportive measure that would constitute a change in placement may be limited. If the answer is no, the special education rules do not limit you from proceeding with any emergency removal or supportive measure that is authorized by Title IX and state law.

Can we rely on an MDR conducted at the beginning of the Title IX process at the end if there is a finding of a violation?

Maybe. That depends on what the investigation finds.

At the end of a Title IX investigation, if the alleged conduct is substantiated in full and an MDR has already been completed based on the allegations, there is no practical reason to conduct another MDR.

In many cases, however, the conduct substantiated by the evidence differs in material ways from the allegations. The conduct may still violate Title IX, but it’s not the same as the conduct alleged, for which you did the prior MDR. In those cases, think carefully about whether you need to conduct another MDR based on the findings. Of course, if you did not do an MDR earlier in the process and your decisionmaker recommends consequences that would be a change in placement, an MDR must be done before those consequences are imposed.

What if the sex-based misconduct is a manifestation? Was the whole Title IX process a total waste of time?

No way! Remember, discipline is only one of many remedies that can be implemented to address sex-based misconduct in schools. Consider your whole toolkit of responses, with the overarching goal of stopping any sex-based misconduct, preventing its recurrence, and remedying its effects on the victim.

Should the student’s IEP team ever involved in the Title IX process?

Under the current rules, the answer is sometimes. For example, if supportive measures would impact a student with a disability’s related services, those changes cannot be made by the Title IX decisionmaker or coordinator alone. This is yet another reason why it is so important that the Title IX Coordinator have their disability services administrator on speed dial throughout the Title IX process. Collaboration throughout the process will help ensure that the requirements of IDEA and Section 504 are respected as equally as the Title IX rules are in a case involving a student with a disability. And remember, if the proposed rules go into effect as written, collaboration between the Title IX and the special education world will only increase. (That’s another issue we discuss in our free webinar, Collaboration for the Win! Title IX and Special Education, earlier this year!). We will make sure to continue to watch these important issues and keep you updated here. If you have any questions, don’t hesitate to contact us at titleIX@thlaw.com.