Posted on September 29, 2021
By: Lily Crespo Esq.
Quick Takeaway: Title IX limits the circumstances under which a respondent can be removed from an education program or activity on an immediate, referred to as “emergency”, basis. The emergency removal is permitted so long as (1) the institution undertakes an individualized safety and risk analysis; (2) determines that an immediate physical threat to the health or safety of students or others arising from the alleged sexual harassment justifies removal; and (3) provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. In addition, it is crucial that any emergency removal of a student with a disability conform with the requirements of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA). Institutions should clearly and thoroughly document the basis for all emergency removal determinations.
What happened: U.S. Supreme Court Justice Elena Kagan denied a California high school student’s petition to return to his school in San Ramon Valley Unified School District after the school’s principal, also the Title IX coordinator, authorized the student’s emergency removal.
What is emergency removal and how can it be used by school districts? Emergency removal, a tool put in place by the Title IX regulations that went into effect last year under the Trump administration’s Department of Education, allows schools to remove someone accused of sexual assault or harassment if they are “an immediate threat to the physical health or safety of the complainant.”
- The U.S. Education Department declined to mirror the “direct threat” language utilized in the ADA regulations with respect to Title IX’s emergency removal provisions. Instead, the regulations provide that a district may remove a student from school if the student poses “an immediate threat to the physical health or safety of any student or individual.” 34 CFR Sec. 106.44(c). In comments to the 2020 Title IX regulations, the education department stated, “this language better aligns this provision with the FERPA health and safety emergency exception, and avoids the confusion caused by the ‘direct threat’ language under ADA regulations because those regulations refer to a ‘direct threat to the health or safety of others,’ which does not clearly encompass a threat to the respondent themselves (e.g., where a respondent threatens self-harm).” However, the education department pointed out that districts must still comply with applicable laws, including the ADA (and its “direct threat” analysis), in making emergency removal decisions.
- Importantly, Title IX’s provisions relating to emergency removals do not affect the right of a student with a disability to disciplinary protections under the IDEA, Section 504, or ADA Title II. In comments to the 2020 Title IX regulations, ED stated that, “nothing in [34 CFR Sec.] 106.44(c) prevents a [district] from involving a student’s IEP team before making an emergency removal decision, and [34 CFR Sec.] 106.44(c) does not require a recipient to remove a [student] where the [district] has determined that the threat posed by the [student], arising from the sexual harassment allegations, is a manifestation of a disability such that the [district’s] discretion to remove the [student] is constrained by IDEA requirements.” ED also emphasized that districts must still comply with applicable disability laws, including Section 504 and the ADA, in making emergency removal decisions. Accordingly, districts will likely need to conduct an MDR for a student with a disability if it proposes to disciplinarily change his placement due to allegations of sexual harassment. See 34 CFR 106.44 (c).
Background: U.S. Supreme Court Justice Elena Kagan denied relief to a California high school student seeking to return to school after his district suspended him indefinitely under an “emergency removal” provision in Title IX regulations on sexual harassment. The representative of John Doe, the 15-year-old accused of multiple sexual assaults, argued the defendant was receiving “no instruction – either live or remote” and was being “deprived of his educational opportunities.” The case is among the first to challenge emergency powers granted to school districts last year.
- In the case, Doe denied his ex-girlfriend’s allegations of sexual assault, saying they ended their relationship after approximately one month of dating. According to case documents, text messages show Doe ended the relationship against the will of Jane Roe, the anonymous ex-girlfriend and accuser. Roe’s social worker claims Doe sexually assaulted his ex-girlfriend during class, shortly after their breakup in April 2021, as well as one other student in a separate incident.
- On April 22, the district notified Doe it “has undertaken an individualized safety and risk analysis and has determined that you pose an immediate threat to the physical health or safety of a student or other individual arising from the allegations of Title IX Sexual Harassment.”
- Doe says he was asked to immediately leave campus and urged to study independently for the remainder of the school year with no live instruction. The district then extended Doe’s removal to the start of the 2021-22 school year, and offered him virtual instruction, according to court documents. “The harm to Petitioner in not attending in-person education is not only educational, but also emotionally damaging, and precludes Petitioner from participating in the comradery, physical education and other opportunities that are associated with attending high school,” Doe’s party claims.
- “This is effectively a suspension,” Doe’s advisor told the district, “which as a matter of long-standing federal law requires meaningful notice and a hearing – neither of which [John Doe] has been provided.” Doe’s lawyers also add that “some school administrators have decided that an ’emergency’ situation exists the moment an allegation of sexual misconduct is made, regardless of its lack of veracity.”
The U.S. Department of Education, under an executive order from President Joe Biden, is reviewing all its policies and regulations for enforcing Title IX.
What this means for educators: While the procedure for invoking emergency removal under Title IX must be followed carefully, this case is good news for districts seeking to keep complainants safe if faced with potentially dangerous situations. If you have a situation come up like this, please get in touch with legal counsel. Contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.