For best results, consult your special education administrator

The 2024 Title IX rules were finally released. As you may recall, the Department of Education had proposed a new provision in the rules to require the Title IX Coordinator to consult with the IEP or Section 504 team throughout the implementation of the grievance procedures and specifically with respect to the implementation of supportive measures when a party in the grievance process is a student with a disability. While the intersection of Title IX, the IDEA, and Section 504 is complicated and sometimes an IEP or 504 meeting is warranted, the proposed requirements would have been burdensome and unworkable. A coalition of districts across the country worked with Thompson & Horton to submit comments to the Department flagging this concern.

We are pleased to report that the final rules modify this provision and require the Title IX Coordinator to consult with “one or more members” of the IEP or 504 team. This revision is a major improvement and will enable your Title IX Coordinator to work collaboratively with appropriate special education personnel to ensure compliance with the IDEA and Section 504, without requiring additional and unnecessary IEP and 504 meetings.

In the preamble, the Department explains that the final rule “does not require IEP or Section 504 meetings, does not mandate consultation with full IEP teams or Section 504 teams, does not identify particular individuals within the IEP team or Section 504 team who must be part of the consultation, and does not specify the decisionmaking process, leaving these decisions to the discretion of the [district.]”

We are grateful that the Department heard the concerns of school districts about the practical implications of the proposed rule and made this needed change.

What does the new requirement mean for schools? We have long advised that the Title IX Coordinator consult with special education personnel when a student with a disability is involved in the grievance procedure, so for many of you, little will change. There are several key points that will likely merit consultation. The new rules require consultation related to supportive measures. Other times we anticipate consultation will be helpful or necessary include emergency removals, disciplinary sanctions, interview accommodations, and FAPE considerations.

Who on the IEP or 504 team should the Title IX Coordinator consult? This will depend on the situation, but the purpose of the consultation is to ensure compliance with the IDEA and Section 504, so the appropriate team member should be someone with relevant knowledge, like a special education administrator. In some circumstances, consultation with a case manager, special education teacher, or school psychologist, may also be appropriate. And sometimes, it will make sense to convene the full team (e.g., if changes to the IEP or 504 plan are contemplated to ensure the student receives FAPE, or if an MDR is needed because an emergency removal or exclusionary discipline is proposed).

Should the consultation be documented? The topics are Title IX and special education, and we are attorneys, so you know the answer is yes. The rules do not require a specific type of documentation, so you can come up with a system that works for your district. Documenting who was consulted, the topic, and any decisions or actions steps will help keep everyone on track and memorialize the meeting if there are questions later.

If you are looking for an overview of the new rules, check out our recent Sneak Preview webinar. Also be on the lookout for upcoming Title IX events, blog posts, and trainings. And for more insights on special education and the new Title IX rules, join Rebecca and Kendra at TCASE Interactive in July for Title IX Reboot! The New Regs and Special Education.