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Education Dive
Title IX rules leave door open for schools to 'pass the trash'
While the Ed Department said it intends to curb the practice, legal
experts suggest language in new regulations could feed into it.
Naaz Modan
May 11 2020
Analysis of new provisions to Title IX regulations released Wednesday
by U.S. Secretary of Education Betsy DeVos suggests school employees
alleged to be perpetrators of sexual assault or harassment may still be
able to fly under the radar. Education law experts corroborate that the
new language would allow schools to dismiss sexual harassment, abuse or
assault complaints if the alleged perpetrator quits before or during an
investigation.
This provision was not originally included in a 2018 rules proposal,
which DeVos made available for comment before finalizing regulations,
or the original 1975 Title IX regulations that are in effect.
In a press briefing, DeVos said, “Combined with our efforts to end the
indefensible practice of ‘pass the trash’, we are making sure our
youngest students, who often get overlooked in discussions of this
topic, are no more forgotten.” She added the new language “builds on
these efforts.”
The new regulations take effect on Aug. 14.
Rules would ‘encourage’ the problem
But analysts, researchers and advocates agree the added provision would
exacerbate the already-existing problem of “passing the trash” or
“passing the problem,” coined phrases that refer to a problem in the
U.S. K-12 education system where alleged sex offenders jump from one
district to another when allegations or rumors of their misconduct
surface.
“It’s letting the person get off the hook,” said David Bloomfield, a
professor of educational leadership, law, and policy at Brooklyn
College in New York. “It seems to encourage ‘pass the trash’ on a
voluntary basis.”
For example, if an educator is rumored to have sexually harassed or
assaulted students and voluntarily quits before or when a formal
investigation is launched, the school could dismiss a formal complaint
— essentially looking the other way.
Both the school and the accused employer could benefit from such an arrangement allowed by the language, Bloomfield explained.
And schools that contribute to the cycle by dismissing those complaints
would face no repercussions under the new regulations, he said.
In its discussion, the U.S. Department of Education said it believes
the new wording "appropriately permits" schools to dismiss complaints
if an employee no longer works there based on "whether a respondent
poses an ongoing risk" to the school's community, among other factors.
That language does not include evaluation of risk posed to other school
districts and their communities.
New language may feed ‘pattern’
Jake Sapp, Austin College's deputy Title IX coordinator and compliance
officer, agreed the new language would “absolutely feed into the
problem” of passing on school employees with an alleged history of
sexual misconduct to other districts.
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