A Special Ed Connection article, featuring Peter J. Maher, reprinted by permission.

Now that the comment period for the Office for Civil Rights’ proposed Title IX regulations has closed, we can see that the submitted comments raise some special education related questions. Do the Title IX regulations have to delve into how to handle grievances involving students with disabilities when the IDEA and other laws already protect students with disabilities? Do Title IX coordinators have to always consult with a student’s entire IEP team during an investigation?

Districts can explore these issues before the regulations are finalized and learn what they can do now to ensure students with disabilities continue to receive FAPE despite their involvement in sexual harassment allegations. “OCR should take a closer look at how they drafted language [regarding IEP team consultation],” said Pete Maher, a school attorney at Shipman & Goodwin LLP in Hartford, Connecticut. Maher discussed a couple of the comments submitted by others related to students with disabilities. “As it is proposed right now, it may cause confusion and logistical issues that would be an impediment to their ultimate goal of resolving Title IX issues quickly.”

Review two of the issues that came up in the comments regarding special education and Title IX and what you can do now while waiting for the regulations to be finalized:

  • Concern 1: A proposed new section focuses on students with disabilities. 

    At least one comment questioned the need for Title IX regulations related to students with disabilities. It’s true that districts have been navigating the intersection of all laws with Title IX, including laws for students with disabilities, since the current regulations were issued in 2020, Maher said. The absence of a specific requirement in Title IX has not allowed districts to overlook the IDEA and other laws.”I’m not sure it takes a new regulation to require that,” he said. “That being said, I think clarity is always helpful and I don’t have a problem with regulations reminding recipients that they need to take students’ disabilities into account when developing and implementing supportive measures and conducting investigations and implementing interventions.”

  • Concern 2: The proposed regulations require Title IX coordinators to consult with IEP teams. 

    The practicality of the Title IX coordinator consulting with the IEP team to ensure compliance with the IDEA throughout an investigation was questioned in another comment. The spirit of the proposed regulation is to underscore that districts can’t disregard students’ disabilities when identifying supportive measures, Maher said. But convening an entire IEP team may not always be feasible or appropriate.”Districts need to be able to respond promptly to address possible sex discrimination, and it may not be necessary to consult with the entire IEP team to do that,” he said. “It may make [more] sense for a Title IX coordinator to consult with a special education administrator or another administrator who knows the child and can offer some input on how to design and implement supportive measures. I would also be fine with consulting relevant members of the IEP team.”At the same time, in some cases, it will be necessary to convene an [entire] IEP team to talk about revising a student’s IEP, whether it be a new service, support, or setting that is required, Maher said.

    “I wouldn’t reject out of hand the need for a team to convene at certain times to support a child, but a school district needs to be able to respond promptly and equitably to the complaint process,” he said. “It doesn’t always require the convention of an IEP team throughout the entirety of the grievance process. Logistically, it would be impossible.”

    Indeed, districts have to remember that parents are mandatory members of the IEP team, so the Title IX process may be unnecessarily delayed if a Title IX coordinator has to meet with the entire IEP team, but the parents are unavailable, Maher said. You also need time to give parents a reasonable amount of notice of the meeting.

    “In Connecticut, we need to give parents five days’ advance notice of an IEP meeting,” he said.

    Maintaining student confidentiality may also be a concern, Maher said.

    “I can think of scenarios where it may not be necessary for related service providers — occupational therapists, physical therapists, speech-language pathologists — to be aware of an ongoing investigation for allegations of sex discrimination,” he said. “Every case is different.”

  • Consideration: Collaborate while current regulations remain in effect. 

    In the meantime, while the Office for Civil Rights reviews the comments on the proposed regulations, districts should ensure Title IX professionals consult with colleagues who have particular expertise or knowledge of students with disabilities as needed to make sure they are handling investigations appropriately, Maher said.”The IDEA is always in effect and districts must always provide a free appropriate public education,” he said. “We don’t pause the IDEA.”

See also:
· Don’t let Title IX supportive measures interfere with students’ FAPE
· Stick to timeline for Title IX investigation
· Grievance Procedures and Investigations of Sexual Harassment Under the Title IX 2020 Regulations

Cara Nissman covers autism, school psychology, and IEP team issues for LRP Publications. Reprinted by permission from Special Ed Connection.