On June 23, 2022, President Biden’s U.S. Department of Education released the much-anticipated proposed Title IX regulations. The proposed regulations are a major step by the Biden administration in its effort to overhaul the Trump-era Title IX regulations. The proposed regulations would make significant changes, including expanding the definition of hostile environment sex-based harassment; removing the requirement for a formal, written complaint; providing more flexibility in the grievance process for K-12 schools; adding new notice and training requirements; and providing explicit protections for LGBTQ individuals as well as students and employees who are pregnant or parenting. Additionally, the proposed regulations acknowledge the intersection between Title IX and special education laws but provide little guidance on how to navigate the complex questions that arise when students with disabilities are involved in Title IX complaints.  

Specifically, the proposed regulations define “student with a disability” and, to help ensure compliance with disability laws, require consultation between the Title IX coordinator and the IEP or 504 team when a complainant or respondent is a student with a disability. That’s it—An acknowledgment that students with disabilities may be involved in Title IX complaints and a directive for the Title IX coordinator to consult with the student’s special education team to figure out how to comply with both laws and meet the needs of the student.  

The proposed regulations require consultation related to supportive measures but also more generally throughout the grievance process. The times that we frequently see questions arise when students with disability are involved in the Title IX grievance process include emergency removals, supportive measures, disciplinary sanctions, and accommodations to make the process accessible. Let’s dig into the thornier issues here:  

• Manifestation Determinations. When contemplating emergency removals and discipline (if a student is found responsible for Title IX misconduct), the school needs to determine whether the removal or discipline would constitute a change of placement and require a manifestation determination review (MDR) meeting. If the conduct (or alleged conduct in the case of an emergency removal) is a manifestation of a student’s disability, the student cannot be removed from their current placement, which can make separating the parties and preserving access to the educational program for the complainant more complicated. The proposed changes to the regulations would not alleviate this difficulty but would ensure that the Title IX coordinator and special education team are in consultation to address the issue. 

• Supportive Measures. When contemplating supportive measures, complying with both laws may require considering the types of services or accommodations that will best continue to meet the student’s disability-related needs and provide FAPE and also meet any needs related to the sex-based harassment and preserve access to the educational program. Additionally, while the current regulations require that supportive measures be non-disciplinary, non-punitive, and not unreasonably burden the other party, the proposed regulations state that supportive measures can burden the respondent, including involuntary changes to classes, extracurricular activities, or other programs, regardless of whether a comparable alternative is available. Consideration of class changes and removal from particular activities may impact IEP or 504 services and supports, so schools would need to tread carefully to implement any such changes in a way that maintains compliance with the student’s IEP or 504 plan. The proposed requirement for consultation between the Title IX coordinator and special education team with respect to supportive measures is intended for this purpose. 

Consultation between the Title IX coordinator and the IEP or 504 team will hopefully promote increased awareness of special education procedures and requirements for the Title IX coordinator and of Title IX procedures and requirements for the special education team (and of both for parents!), which should facilitate problem solving and compliance. At the same time, scheduling and convening ARD Committee meetings will take additional time and may be a cumbersome way to work through some of these issues.  

As the proposed regulation and preamble highlight, understanding the interplay between Title IX and disability law is incredibly important. Recent data shows that students with developmental or cognitive disabilities experience sexual assault at staggering rates; and while students with disabilities are more likely than nondisabled peers to experience sex-based harassment, they are less likely to report it. Close collaboration and consultation between Title IX and special education personnel can help reduce barriers to students with disabilities accessing the grievance process and the supports they need. 

We will continue to analyze the new proposed regulations and provide additional insight on our Title IX Tips blog. We will also be working with clients to compile comments to the proposed regulations. If you have feedback or suggestions on the proposed rules, you can provide them directly to the Department of Education or reach out to us – we would love to hear your thoughts!