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What Do You Mean We Can’t Suspend the Student? Title IX Discipline and Removal Rules
The 2020 Title IX sexual harassment regulations pose many challenges for K-12 schools, with the student discipline and removal rules among the most significant. The regulations require that a person accused of sexual harassment cannot be disciplined for sexual harassment until the Title IX grievance process is complete and a trained decision-maker has determined that sexual harassment occurred. Practically speaking, this means that a student accused of sexually harassing another student or employee, including committing sexual assault, cannot be placed on suspension, referred for expulsion, or otherwise disciplined until the Title IX process has concluded, no matter how strong the evidence that harassment occurred.
The Title IX grievance process often takes 60-120 days to complete. The regulations state that a school’s sexual harassment grievance process must be completed “before the imposition of any disciplinary sanctions…against a respondent.” The regulations also state that the grievance process must “include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.”
This strict rule is counterintuitive for school administrators who are accustomed to conducting an immediate and efficient investigation into an incident and then imposing discipline, including the removal of a student, as appropriate. It is important to train and caution school officials that following their typical discipline procedures when the conduct could be sexual harassment may lead to a Title IX violation and an Office for Civil Rights complaint.
There is only one exception to the general rule that a student respondent may not be removed from the school programs or activities until the end of the grievance process. The Title IX regulations provide for an “emergency removal” of a student respondent when school officials have performed an individualized safety and risk analysis and determined that the respondent is “an immediate threat to the physical health or safety of any student or other individual.” When that determination is made, school officials must provide the student notice and an opportunity to immediately challenge the decision.
In its preamble to the Title IX regulations, the U.S. Department of Education provided two examples of when an emergency removal would be appropriate. The first is when a student respondent threatens physical harm to the complainant when learning of the allegation of sexual harassment. The second is when a student respondent threatens self-harm when learning of the allegation. An emergency removal is not disciplinary and school officials must ensure that the notice of emergency removal focuses on the immediate threat to physical health and safety and does not use disciplinary terms, such as suspension.
Notably, emergency removal cannot be used when the threat is to an individual’s mental or emotional well-being. Additionally, removal of a student respondent from the educational setting cannot be a supportive measure for the complainant, though a student respondent may be transferred to another class or even another site if the transfer does not unreasonably burden the student respondent and does not constitute removal from the school’s education program or activities.
Finally, if the student respondent has a 504 Plan or IEP, the protections and rights provided by Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act still apply. Neither law allows school officials to change a student’s placement because of an immediate threat to health and safety without conducting a meeting and amending the 504 Plan or IEP. Additionally, a manifestation determination review may be required. Therefore, when a student with a disability is subject to a Title IX emergency removal, the Title IX coordinator should ensure that the special education department or Section 504 coordinator is made aware of the situation.
In summary, when a Title IX coordinator advises school administration that a student respondent cannot be removed from the school setting or otherwise disciplined before and during the grievance process, administration should take that advice seriously to avoid a violation of the federal Title IX regulations.