New rules on sexual misconduct could affect Minnesota K-12 schools

A proposed overhaul of how educational institutions handle sexual misconduct allegations could have a big impact on Minnesota's K-12 schools.

New rules proposed in November by U.S. Education Secretary Betsy DeVos would limit the range of allegations that schools are required to investigate and provide more specific directions about how each case should be handled. Supporters of the proposal, which is open for public comment through Jan. 28, say it provides needed balance between the rights of alleged victims and those of the accused. Opponents, including groups representing sexual assault survivors and Minnesota Education Commissioner Brenda Cassellius, say the changes would make it harder for victims to come forward about their experiences and easier for schools to sidestep their allegations.

The debate has made waves on college campuses but has attracted far less attention in K-12 schools, which would be subject to many of the same changes. Administrators at several of Minnesota's largest public school districts said they do not plan to comment on the proposal, nor do they expect that the new rules would force many changes in how they handle reports of sexual harassment or violence.

But Kathryn Nash, a Minneapolis attorney who specializes in sexual harassment cases involving educational institutions — and who has provided input to the federal officials who drafted the proposed rules — said schools should be paying close attention.

"This will require significant changes by K-12 institutions in how they respond to Title IX allegations," she said.

The proposed rule changes are related to Title IX, the federal law that prohibits educational institutions from discrimination based on sex. The law applies to all schools that receive federal funding — the vast majority of K-12 schools in the state.

Under DeVos' proposal, the law would be updated to include a narrower definition of sexual harassment that would trigger a formal investigation. It would impose rules about how allegations need to be reported to prompt schools to respond, and it would set up a formal process in which both the alleged victim and the accused would participate in an investigation.

One of the most controversial pieces of the proposal, a provision that would allow representatives for the accused to question alleged victims in live hearings, would apply only to higher education institutions, not to K-12 schools. But Nash said the other elements of the proposal merit serious consideration by those schools, in part because of the ages of the students likely to be involved.

Unlike sexual misconduct allegations on college campuses, which frequently involve only students, Nash said incidents at K-12 schools are more likely to include both a student and an adult staff member. That dynamic could affect the outcome of a more complex investigation process, she said.

"If you think about a first-grader who is accusing a gym teacher of sexual assault, the idea that the first-grader is going to need to go through this process, meet with an investigator, tell their account, respond to a written report, meet with a decisionmaker, answer questions, then potentially meet with a decisionmaker again — that's a lot of process for a first-grader to go through," she said.

Nash said K-12 schools currently are allowed some discretion in how they respond to allegations, including firing or reassigning an employee accused of misconduct, or disciplining students.

Officials with Minnesota's three largest school districts ­— Anoka-Hennepin, St. Paul and Minneapolis ­— all said they are monitoring the proposals but have no immediate plans, and see no need, to change their policies.

Laurin Cathey, executive director of human resources for St. Paul Public Schools, said his district has been examining its own practices around sexual harassment for more than a year. The district recently added a new position, director of equal employment opportunity, to lead efforts on training, policies and complaints.

Cathey said the district is aware that new rules could shift the requirements around the allegations that officials would have to investigate and could affect the timeline of each case. Currently, he said, the district works quickly to separate students and staff members when an investigation is underway.

"When we have allegations involving a student and staff member, we look right away at what we can do, without providing much disruption, to put some distance between those two," he said.

Barbara Olson, a spokeswoman for Osseo Area Schools, said her district has a policy in place for harassment cases and no current plans to revise it.

"Those practices remain in place unless/until there is reason to change them," she said.

Officials with the Hopkins and Mounds View districts had similar responses.

In the Rosemount-Apple Valley-Eagan district, attorney Jill Coyle said schools will need to figure out how to blend their own harassment policies and student codes of conduct with any new rules. She said the proposals currently on the table will likely make for a more complex process for school administrators.

"There are more specific steps that school districts and colleges need to comply with, and that will require some policy changes and perhaps require school administrators investigating these claims to slow down," she said.

It could be some time before any rules are finalized. Federal officials will review comments submitted on the proposal before deciding whether or not to make changes.

Nash, the attorney, said the Department of Education made it clear that they want input, particularly on potential effects on K-12 schools. She said administrators with feedback or questions should be speaking up now, before changes are made.

"Now is the time to act," she said, "not when the proposed regulations become final and [school officials] say: 'This isn't workable.' "

Erin Golden • 612-673-4790