The Biden administration's long-awaited Title IX proposals, released last week, would leave less room for districts to aid and abet alleged sexual predators, who are sometimes rehired by other schools and fly under the radar despite having left or been fired by districts because of ongoing investigations.
"I would think the rule changes as a whole and requiring schools to undo changes that allow schools to sweep sexual harassment broadly under the rug are going to have an impact, including on sexual abuse by employees," said Shiwali Patel, director of justice for student survivors and senior counsel at the National Women's Law Center.
A K-12 Dive analysis of the administration's proposed Title IX regulations shows they would tighten a "pass the trash" loophole currently in place. The loophole was left open in the 2020 regulations enacted under former Education Secretary Betsy DeVos during President Donald Trump's term.
When DeVos introduced the 2020 regulations now in effect, she said her department had made "efforts to end the indefensible practice of 'pass the trash'" and that the 2020 regulations built on those efforts.
However, analysis at the time showed otherwise: Title IX experts agreed that language in the final rules allowed districts to hide the identities of former employees accused of sexual misconduct and dismiss allegations before or during an investigation if the employee quit.
New rules would remove old language limiting schools
Consistent with current regulations, the new proposals would not prohibit districts from dismissing allegations of sexual misconduct in cases where the respondent quit after the allegations surfaced or if the district determines its lack of control over the former employee would prevent it from completing its investigation.
Likewise, in those cases, they wouldn't explicitly prohibit nondisclosure agreements between districts and alleged sexual predators — which have previously contributed to a systemic cycle of districts covering abusers' tracks.
However, the new rules would remove language from the 2020 regulations that Title IX advocates are concerned limit schools from disclosing the result of investigations to other districts. That provision requires schools to keep the accused's identity confidential, unless required by FERPA or under a number of other limited circumstances.
"In the current retaliation provision, schools were barred from releasing this outcome information about employees," said Brett Sokolow, president of the Association of Title IX Administrators. Sokolow said releasing that information would be considered a form of retaliation unless allowed by a separate law. "So that provision is now gone — which means that schools can say more — which should help to tamp down on the 'past the trash' phenomenon."
Prohibiting schools from releasing information about accused employees and the outcome of investigations into their misconduct is consistent with the overall impact of the 2020 Title IX rules, which many times limited schools in protecting survivors to the fullest extent possible, Patel said.
This is because schools experienced an increase in lawsuits from disciplined employees following the DeVos rules, spooking districts away from their responsibility to survivors, Patel said.
"The changes as a whole made in 2020 made schools less likely to take the steps that they should have to respond to sexual harassment," added Patel, saying accused employees disciplined for sexual misconducted "have gotten even more emboldened."
Responsibility would rest with schools
Instead, language added in the new proposal would hold schools responsible for addressing a former employee's sexual misconduct regardless of whether the district chooses to dismiss their case.
The proposals stress schools would be required, at a minimum, to offer supportive measures to survivors even if a case against a former employee is dismissed and "to take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the recipient’s education program or activity."
This could mean looking into faulty systems and conditions that allowed the abuse to continue, said Patel.
"Do other players need to be investigated because they knew about conduct that they didn't respond to?" Patel said. "I think it absolutely has an impact on passing the trash, because it requires schools to look into the condition that allowed this to happen, and in many cases for a very long time."
Schools remain 'terrified' of liability
Overall, the proposals include multiple passages that would provide institutions with new tools so sexual abusers aren't brushed under the rug without a penalty, said David Bloomfield in an email. Bloomfield is a professor of education leadership, law and policy at Brooklyn College and The CUNY Graduate Center.
For example, the proposals suggest noting in a former employee's personnel file the employee is ineligible for rehire until the Title IX grievance procedures are complete. This suggestion, combined with the removed provision that barred districts from releasing case-related information, would allow districts to note to other employers the school employee left the district ineligible for rehire with a Title IX investigation ongoing.
However, the "pass the trash" loophole isn't closed by the proposal because use of these tools is largely discretionary, Bloomfield said.
Whether schools use these options is largely cultural and will strengthen the hand of already responsible institutions while allowing accused predators a "get out of jail free card," said Bloomfield and other Title IX experts who have reviewed the proposals.
"They're terrified of the liability that can come from giving a negative reference," Sokolow said. "So most schools just follow the industry standard practice, which is just to indicate whether the individual is eligible for rehire or not. It's really hard to change that because it's so cultural."
Proactive monitoring would be required
Still, the new proposals are a departure from the current regulations in that they stress the responsibility of institutions to proactively monitor systematic sex discrimination.
The Biden proposals come soon after a report released by the U.S. Department of Education earlier this month showed that state policies meant to put guardrails around aiding and abetting sexual misconduct in schools are uneven.
This is despite the Every Student Succeeds Act, which prohibits the practice and which Devos cited when asked to comment on why the 2020 regulations did not close the loophole. The report showed only 27 states require prospective employers to also check applicants’ employment history, eligibility and disciplinary status.
Of those 27 states, 19 require employers to request information like personnel files and employment history from applicants’ current and former employers prior to hiring. Only 11 of the 27 require applicants to share any history regarding investigations or disciplinary actions related to sexual abuse or misconduct.
States are asking for more guidance and resources to help stop the practice, according to the compilation of data collected from 50 states and the District of Columbia and interviews from 48 state education agency officials.
"We are going to strengthen the system to make sure that states are complying with the recommendations of the report and the expectations of the report," U.S. Secretary of Education Miguel Cardona told senators in light of the report's release. "And again, it goes back to making sure we are holding states accountable to following the law.”
The U.S. Department of Education did not respond to K-12 Dive's request for comment before publication of this article.