NPRM Off-Campus Jurisdiction: Addressing Off-Campus and Out-of-School Discrimination Under Proposed Title IX Settlement of 2023 | TNG Council

The July 2022 release of the Department of Education’s Title IX Notice of Proposed Rulemaking (NPRM) includes several challenging and complex topics to consider before the Civil Rights Office releases the final rule, expected in sometime in 2023. A proposed significant change expands Title IX jurisdiction for off-campus/out-of-school sex discrimination.

The proposed rule maintains the responsibility of the recipient (school) to respond to gender discrimination that occurs in the course of the recipient’s educational program or activity in the United States, as well as that which occurs in owned buildings or controlled by an officially recognized student organization, a requirement also found in the 2020 Title IX regulations. The NPRM then proposed to expand Title IX jurisdiction to also include: (1) a gender-based hostile environment in the curriculum or a recipient’s educational activity, even if the underlying conduct contributing to the hostile environment occurred outside of the educational program or activity or outside the United States; and (2) conduct occurring in connection with a beneficiary’s educational program or activity in an off-campus or extra-curricular setting where the conduct, or similar conduct, would otherwise be subject to any form of institutional disciplinary authority (eg, student conduct, human resources).[1]

ATIXA has long called (1) above the “downstream effects” rule related to off-curricular conduct and we have advised schools to address the in-curricular effects of off-curricular conduct with supportive measures, although has not been explicitly required before. The new regulations will likely require recipients to deal with such cases, although the NPRM does not specify what the Department of Education means by “address”.[2] This could involve a significant shift, as many institutions have become accustomed to using disciplinary processes available outside of the Title IX grievance process (e.g., ATIXA’s Process B, Student Conduct) to manage allegations of off-campus or off-school sex. founded fault. The NPRM suggests that may change. It remains unclear whether the NPRM will result in addressing only the downstream effects, or also the off-campus incident that catalyzed the downstream effects, but ATIXA expects the final rule to clarify this expectation when its publication.

To prepare for the second category of conduct listed above, recipients should list their misconduct policies and review the circumstances under which jurisdiction may be asserted for each. Typically, grantees make these jurisdictional decisions when considering whether a school can discipline a student for some form of misconduct. However, depending on the type of establishment (public, private, small, large), there may be a precedent of extended jurisdiction for employee misconduct that occurs outside of work or outside of the school day. This can present some interesting challenges for K-12 schools, in particular, who seem to love having their Title IX cake and eating it too, which means it’s common for K-12 schools to deny jurisdiction over assault. sex outside of school. between students, but to assume jurisdiction over extracurricular sexual harassment based on social media. The regulations do not appear to support this kind of bifurcated approach, preferring instead a clear and consistent line rule.

Although ATIXA does not recommend this solution, this proposed regulatory provision may cause beneficiaries to choose not to take up any off-campus/out-of-school misconduct. We also do not consider this geographic limitation of “four corners of campus” to be culturally consistent with how most schools operate today. Whether or not an institution or district chooses to assert off-campus/off-school jurisdiction, the Recipient shall ensure consistent application of reported instances of off-campus/off-school gender discrimination and other forms of misconduct. in a similar context. For example, if an institution disciplined a student for off-campus physical violence, the institution must also discipline a student for off-campus dating violence.

Expanding a recipient’s authority to include all off-campus/out-of-school gender discrimination would increase the number of complaints most Title IX coordinators handle, perhaps significantly. For example, most sexual assaults between K-12 students and community college students occur off-campus/out of school. Title IX coordinators will need to have a strong team of people to help with compliance efforts – the most important members being well-trained assistant coordinators. In the preamble to the NPRM, the Department of Education talks about the importance of assigning one or more designated individuals to assist the Title IX Coordinator with a recipient’s Title IX responsibilities. Assistant coordinators can help manage population- or procedure-specific needs. Title IX coordinators will want to consider the best structure for their teams and how deputies can help manage the anticipated influx of off-campus/out-of-school complaints.

Another area of ​​tension arising from the proposed rule is the intersection of free speech and increasing off-campus/out-of-school competence. Students can engage in speeches, either in traditional forums or via social media, that push the boundaries of protection established by the First Amendment. The Tinker test provides a framework for assessing student expression in the school setting. Title IX coordinators should carefully consider whether any reported sexual speech causes substantial disruption to the school environment or infringes the rights of others (established by Tinker) or could lead to the creation of a hostile environment (established in the NPRM).[3] Under the proposed rule, either occurrence could trigger a formal response as described in §§ 106.45 or 106.46.

Off-campus assaults and incidents of harassment can have significant effects in the school environment. Title IX Coordinators should take steps now to consult with legal counsel and other key senior leaders to discuss this change and the potential impacts on jurisdictional decisions. Here are some questions recipients should ask themselves while they wait for the final rule:

  • Will institutional policies change regarding off-campus or off-school conduct?
  • The amount of off-campus conduct a school can address may be governed by state or board policy at the K-12 levels – will these need to change?
  • What other laws and policies should be considered (e.g., overlap with Title VII, statutory definitions of sexual harassment applicable to students and/or employees, state or jurisdictional investigative requirements and/or or external reporting)?
  • How will grantees ensure that all institutional policies coexist in a cohesive manner?
  • Philosophically, should downstream effects of the program be managed differently from non-program behaviors that have no downstream effects, and if so, why?
  • How will the need for additional staff to handle the increase in complaints be handled?

[1] Nondiscrimination on the Basis of Sex in Educational Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41401 (July 12, 2022).

[2] In its commentary on the NPRM, ATIXA asked the Ministry of Education to clarify what it means by “address”. Does this refer to a formal response requirement or something less formal?

[3] Nondiscrimination on the Basis of Sex in Educational Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41401, § 106.2 (July 12, 2022), p. 657-658.

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