In a recent press release, the Department of Education's Office for Civil Rights (OCR) announced a sweeping new initiative into handling sexual assault in elementary and secondary public schools across the U.S.

In this post, we'll discuss the details of that initiative, including how it aims to fix the practice of “Passing the Trash,” but fails. In our next post, we'll discuss what the announcement of this particular initiative says about what we might expect from the upcoming Title IX reforms.

OCR Gets More Power to Handle Sexual Assault in K-12 Schools

On February 26, 2020, the OCR issued a press release about the new initiative in K-12 schools, which gives the OCR more power to enforce Title IX and the Every Student Succeeds Act (ESSA) in these schools.

The new initiative would allow the OCR to:

• Conduct nationwide compliance reviews on the procedures used by school districts in handling sexual assault cases and reports of sexual misconduct
• Increase public awareness of the problem of sexual assault in K-12 schools
• Work with school districts to make sure the sexual assault data that schools report to Civil Rights Data Collection (CRDC) is accurate
• Expand the types of data collected by the CRDC

The initiative comes on the heels of the OCR's sweeping investigation of the Chicago Public School System. That investigation had found that the System – the third largest public school district in the country – had virtually no process in place to report or investigate sexual misconduct.

OCR to Release Study on “Pass the Trash” Laws

The press release also promised to release an extensive study by the Office of Elementary and Secondary Education on measures taken by states to clamp down on the practice known as “Pass the Trash.”

School districts “pass the trash” when one of their teachers or staff members gets credibly accused of sexual misconduct, often by a student. Rather than taking true disciplinary action, schools “pass the trash” by either relocating the teacher within the district or helping them find a new job in another district.

This practice is prohibited by the Every Student Succeeds Act § 8546. The new OCR initiative will look into how states are enforcing this law.

The Problem: Outcomes are Only as Reliable as the Process

The problem with the OCR getting more involved in how states enforce § 8546 is that the law pertains to teachers and staffers who have been credibly accused of sexual misconduct. Whether an accusation of misconduct holds water or not, though, often requires at least some investigation into the merits of the claim. That's the problem, here: Even the largest school districts have shown that they have no ability to investigate sexual misconduct allegations. With little investigation, it's impossible to know if a teacher has been credibly accused of misconduct and falls under the realm of the “Pass the Trash” laws.

Title IX Defense and National Advisor Joseph D. Lento

Joseph D. Lento is a National Title IX advisor and defense lawyer. Contact him online or call his law office at (888) 535-3686.