The Department of Education has Proposed Rule Changes that Would Explicitly Add Sexual Assault and Sexual Harassment to Title IX.
Title IX was first enacted in 1972, but has not been significantly altered since then. Although Sexual Assault and Sexual Assault have long been recognized under the rule, the rule never explicitly addressed the issue. The Department of Education is hoping to change that. These proposed rules take on two separate goals: protecting victims of sexual assault and protecting individuals who are accused of sexual assault until proven guilty.
First, this rule attempts to create protections for victims of sexual assault including requiring schools to “respond meaningfully to every known report of sexual harassment and to investigate every formal complaint”. In addition, schools must provide remedies if there is a finding of sexual harassment or a sexual assault.
Second, this proposed rule also creates protections for individuals who are accused of committing sexual harassment or sexual assault. This rule change creates expectations and procedure limitations in hopes of creating fair investigation processes across the country. There are four proposed procedural additions. First, all investigations must operate with a presumption of innocence until proven otherwise. Second, schools are no longer allowed to institute a single investigator process and instead have to engage multiple professionals. Third, schools must provide due process for all students involved in the investigation. Finally, schools must provide an opportunity for a live hearing where individuals, who are not parties to the investigation, are permitted to cross examine witnesses.
So where are we currently in the process? From November 16th 2018 – January 15th 2019, individuals and groups and submit public comments to the Department of Education. If you would like to read the full proposed changes you can read them here: https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf
There is a wealth of resources out there for students with disabilities. Although the School Law Center can help with many of your education needs, we also wanted to raise your attention some other useful resources.
In November of 2018, two students won a settlement from a police department for aggressive behavior in an elementary school. Last year, a Kentucky police officer detained two young students with disabilities. The officer used handcuffs to detain the students and the students were so small that the officer had to cuff their biceps because the handcuffs wouldn’t fit on their wrists. Both of these students are students of color with disabilities. The students brought a legal case against the officers because of the lasting damage that they were experiencing; they were both having nightmares and anxiety issues following the officer’s overuse of force.
The large settlement of this case raises the issue: what should a school prioritize in its hiring decisions?
According to this ACLU report, there are close to two million children who attend public schools in America that have an in-school police officer, but do not have a school counselor. There are three million students who attend schools with in-school police officers, but do not have school nurse staff. There are six million students who attend schools that have in-school officers, but do not have psychologists. If school officers are going to use excessive force, should in-school officers be prioritized over these other staff positions?
For more information check out: https://www.aclu.org/blog/disability-rights/disability-rights-and-education/children-cruelly-handcuffed-win-big