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The Department of Education Office for Civil Rights (OCR) has issued a “Dear Colleague” letter along with an extensive Q and A document concerning sexual assaults and other acts of what OCR terms “sexual violence” that affects students.  While much of the letter seems to be aimed at colleges and universities, the legal standards apply to all educational institutions.   Here, we provide an overview of the OCR’s views on this matter.

 

Is this something new? Title IX has been around for quite awhile, hasn’t it?

Title IX has been around since 1972, but the Office for Civil Rights in the Department of Education has issued new guidance on the subject of “sexual violence.”  This is worth your attention.

 

Sexual violence?  Wouldn’t that be a crime? I thought Title IX was about the girls’ softball field, and how much we pay the girls’ basketball coach.  What does violence have to do with it?

Title IX is about the girls’ softball team and the coaches pay, but more broadly, it’s about non-discrimination  based on sex.  Sexual harassment is a form of sex discrimination.  Sexual violence  is a form of sexual harassment.   Of course you are right about sexual violence  implicating  criminal  law, but the focus of the OCR guidance  is on sexual violence  in schools that creates a hostile environment  and thus amounts to a form of sex discrimination.   OCR has issued an extensive Q and A document about this.

 

OK.  Let’s dive in. How do they define “sexual violence”?

It’s good that you asked, because the term is broader than the words themselves imply.   We think of “violence” as an act of physical force, but the term “sexual violence” includes taking advantage of someone without necessarily using physical force.

 

How so?

The Q and A document defines “sexual violence” in two ways. First, as “physical sexual acts perpetrated against a person’s will.” That’s the pure physical force part.   But it also includes: “where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent.”  In K-12 schools, there are many students who are incapable of giving consent due to age or disability.  Physical sexual acts perpetrated against these students will meet the definition of “sexual violence” even if no physical force was used.

 

So in order to be “sexual violence,” there has to be a “physical sexual act”—is that right? In other words, name-calling, teasing, cyberbullying  etc. does not count. Right?

Verbal or written conduct like that would not meet the definition of “sexual violence” but might still create a “hostile environment” under Title IX.  This guidance from OCR shines a bright spotlight on sexual violence, but that does not mean that other forms of sexual harassment are unimportant.

 

Will OCR hold the school district responsible for student- to-student actions?

Yes.  If there is a “hostile environment” and the school fails to address it appropriately.

 

What’s a hostile environment?

If the conduct is “sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program,” then you have a “hostile environment.”

 

What would be a failure to address it appropriately?

If “the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate  the hostile environment,  prevent its recurrence,  and, as appropriate, remedy its effects.”

 

Can a “hostile environment” develop due to a single incident, or does it have to be a longstanding pattern?

It could be a single incident: “The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical.  Indeed, a single or isolated incident of sexual violence may create a hostile environment.”

 

But the school is liable only if we actually  know about it, right?

The OCR does not follow that standard.  It follows the “you should have known” standard. Here is what the Q and A says:

OCR deems a school to have notice of student-on-student sexual violence if a responsible employee knew, or in the exercise of reasonable care should have known, about the sexual violence.

 

How can they say that? I thought the Supreme Court established a standard of “actual knowledge” not what you “should have known.”

You are right about that, but the OCR says that the “actual knowledge” standard only applies in litigation seeking monetary damages.   It claims that the “should have known” standard applies in suits for injunctive relief and in the administrative enforcement of Title IX.

 

OK, so we are liable for what we “should have known.” But only if a “responsible employee” should have known about it.  We are mostly irresponsible around here.

Maybe you act irresponsibly, but we can guarantee you that your school district is full of “responsible employees,” according to OCR.  The significance of that is that if a “responsible employee” knows, or even “should have known” of an act of sexual violence, then the school district is considered to “know” about it.

 

I suppose the superintendent would meet the definition of “responsible employee.”    If the superintendent  “knows” then the school district “knows.”  That seems reasonable.  Is anyone else covered by the definition of “responsible employee”?

Oh my yes.  Principals. Counselors.  Teachers.  Nurses.  Bus drivers. Custodians.   Cafeteria workers.

 

What?  You are kidding!

Nope.  OCR defines a “responsible employee” as one “who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.”

 

That doesn’t say anything about custodians or cafeteria workers.

No, but put yourself in the mind of a six-year old who has been molested by an older student or a teacher.  Might this young child “reasonably believe” that Mr. Gus, the beloved school custodian,  would know what to do with this information?   In fact, the OCR’s Q and A implies this very thing:

For example, while it may be reasonable for an elementary  school  student  to believe  that a custodial staff member or cafeteria worker has the authority or responsibility  to address student misconduct, it is less reasonable for a college student to believe that a custodial staff member or dining hall employee has this same authority.

In other words, the busboy who works in the dining hall on the college campus is not a “responsible employee” but Mr. Gus, the elementary school custodian, is.   A college student is expected to understand that the busboy is not who you go to with a complaint of sexual assault.  A six-year-old child may not be sophisticated enough to understand that.

So, as far as OCR is concerned,  if Mr. Gus knows about it, the school district knows about it.  In fact, OCR goes even further than that. If Mr. Gus “in the exercise of reasonable care should have known” about it, then the school district knew about it. That imposes a whole host of obligations on the school.

 

Wow.  But we are only liable if we are “deliberately indifferent” right?  Isn’t that what the courts have said?

That is what the courts have said. That is not what the OCR says.  OCR acknowledges that it is applying a tougher standard than the standard  enunciated  by the Supreme  Court. Again, OCR explains this away by saying that the Supreme Court was speaking about suits for monetary damages.   OCR is applying its “enforcement”  standard.

 

So what is that standard? If we are not held to the “deliberately indifferent” standard, what is the standard?

You must take prompt and effective steps reasonably calculated to 1) end the sexual violence; 2) eliminate the hostile environment;   3) prevent recurrence; and 4) remedy its effects. Satisfying the “deliberately indifferent” standard is comparatively easy.  This is much tougher.

 

How will OCR determine what a person “in the exercise of reasonable care” should have known?

They provide several examples: (1) a student files a grievance; (2) a student does not file a formal grievance, but informs your Title IX coordinator; (3) someone—including a student’s parents or a friend—reports  an incident to a “responsible  employee”; (4) a teacher or principal  actually saw the incident occur; (5) a member of the community  reports it; (6) the media reports it; (7) it’s on social media, i.e., Facebook, Twitter or YouTube.

 

Stop right there. Do we have to monitor Facebook accounts?

It doesn’t say that. However, even without actively monitoring social media sites, if information comes to you (or, presumably, any “responsible  employee”)  then the school district “should have known.” But we think they are talking about things that are pretty obvious. Here is what the Q and A says:

In other cases, the pervasiveness of the sexual violence may be widespread, openly practiced, or well known among students  or employees.   In those cases, OCR may conclude  that the school should have known of the hostile environment. In other words, if the school would have found out about the sexual violence had it made a proper inquiry, knowledge of the sexual violence will be imputed to the school even if the school failed to make an inquiry.

 

What is our legal responsibility  once we are deemed to “know” about a situation?

You have to take immediate and appropriate steps to investigate and determine what happened.  If you conclude that there is a hostile environment, the school must then take prompt and effective action that satisfies four standards: (1) it is reasonably calculated to end the sexual violence; (2) it eliminates the hostile environment; (3) it prevents recurrence; (4) it remedies the effects.

 

So that’s what we do after we finish the investigation.

Yes, but while the investigation is pending you have some obligations as well.  You need to protect the complaining party, and may need to take some interim steps even though you have not concluded that a hostile environment has developed. You should keep the complainant updated on the investigation as it proceeds, and make sure that the complaining party is informed about available resources, such as counseling, academic support, disability services, legal assistance, etc.

If you delay in doing these things, the school can be deemed to have contributed to the hostile environment.

 

Does the Q and A address children in public schools specifically?

Yes.  It points out that children are protected under Title IX from sexual violence, but also from non-violent acts of sexual harassment, such as unwelcome sexual advances from school employees.

 

I know of an elementary principal who instructed the teachers never to hug a student. Is that where we are headed?

We can expect that some principals will take that approach, but it is an overreaction.   OCR’s guidance does not prohibit teachers from touching students affectionately—it  just prohibits touching them sexually.

 

Hmmmm. Sometimes that’s a fine line.

Exactly. That’s why you can predict that some principals will order “no hugging—no touching.”  But that is not what the document says. It says:

Title IX’s prohibition against sexual harassment generally does not extend to legitimate nonsexual touching or other nonsexual conduct. But in some circumstances, nonsexual conduct may take on sexual connotations and rise to the level of sexual harassment.   For example, a teacher repeatedly hugging and putting his or her arms around students under inappropriate circumstances would create a hostile environment.

 

What about high school students?   The truth is, we have some kids who welcome sexual contact with their teachers.

Sexual activity between an adult who works for the school and a student below the age of consent is going to be considered “unwelcome” and “nonconsensual.”   In Texas, that age is seventeen.  Even if the student is legally capable of giving consent, “there will still be a strong presumption that sexual activity between an adult school employee and a student is unwelcome and nonconsensual.”  [Note: In Texas, under Penal Code § 21.12 it is a crime for an educator to engage in a sexual relationship with a student, regardless of the student’s age.]

You need to have policies about this, and they encourage you to address “what is commonly known as grooming—a desensitization strategy common in adult educator sexual misconduct.”

 

I assume that “sexual harassment”  can come from any type of person to any type of person—male to female; male to male; female to male; female to female.

Right.

 

What if the harassment is not so much about the person’s sex, but about the person’s sexual orientation?  Is that considered a violation of Title IX?

Yes.   If a student is harassed because he is gay, he is the victim of sexual harassment according to Title IX standards. In this respect, OCR and the courts agree. So if the school is on notice that a student is being picked on because she is gay, or because others perceive her to be gay, all of the requirements laid out in the Q and A are in effect.   OCR says that the “sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

 

TASB helped us revise our policies to address all of that. It’s all laid out in Policy FFH.

Good. But OCR requires more than that.  You also have to have “culturally competent counseling” available.

 

What does that mean?

It means that “counselors and other staff who are responsible for receiving and responding to complaints of sexual violence, including investigators and hearing board members, receive appropriate training about working with LGBT and gender-nonconforming  students and same-sex sexual violence.”

 

What does LGBT stand for?

If you have to ask, you do not qualify as “culturally competent.”

 

Does the Obama Administration  require us to start up a Gay-Straight Alliance club for the students?

No. They don’t require it, they merely encourage it: “Gay-straight alliances and similar student-initiated  groups can also play an important role in creating safer school environments for LGBT students.”

 

Is there anything in the Q and A specifically about students with disabilities?

Just a reminder that Section 504 of the Rehabilitation Act may come into play—harassment of a student based on sex may violate Title IX but harassment based on disability may violate Section 504.   Also a reminder  that kids with disabilities  may need special kinds of training and additional assistance.

 

What about English Language Learners?

Your forms for making complaints and training materials should be available in their native language.

 

What do we do when the person harassing the student is not our employee or our student?

You do what you can.  If the perpetrator is a student from another district, you can notify the principal of that school.   If it is a vendor, you can cut off that vendor’s access to the school. You may lack the authority to take direct action against the perpetrator, but you can still take steps to protect the complaining party and to remedy any ill effects of the harassment.

 

What should we do regarding policies and procedures?

OCR cites three specific requirements: 1) disseminate a “notice of nondiscrimination”;  2) name a Title IX coordinator; and 3) adopt and publish grievance procedures.

 

What needs to be in that “notice of nondiscrimination”?

It should simply say that the district does not discriminate on the basis of sex as per Title IX, but it also needs to say that questions about Title IX may be referred to the Title IX coordinator.

 

How are we to proceed with an investigation?

The key words are “adequate, reliable, impartial, and prompt.” And your investigation must “include the opportunity for both parties to present witnesses and other evidence.”  That last part is new, and may require a revision of policy.

 

Does that mean that rather than us conducting an “investigation” of a complaint, we have to treat it as more of a “hearing” with witnesses and evidence?

Something like that.  If your grievance procedures do not provide an avenue for both sides to present “evidence” and “witnesses,” the OCR will find that you have fallen short of this standard. They also require that your written grievance procedures must also spell out “the evidentiary standard that must be used (preponderance  of the evidence) (i.e., more likely than not that sexual violence occurred) in resolving a complaint.”   So it all sounds much more formal and legalistic than a simple investigation by the district.

 

When it is a student-to-student  matter, we normally  use the same procedures that we would use in any student disciplinary matter.

OCR cautions that this may prove inadequate.   They point out that “imposing sanctions against the perpetrator, without additional  remedies,  likely will not be sufficient to eliminate the hostile environment  and prevent recurrence  as required by Title IX.”

 

Many times it is difficult to know for sure what happened. A lot of these cases are classic “he said/she said” disputes and we really cannot tell who is telling the truth.

The OCR requires that you employ a “preponderance of the evidence” standard.  This means that you must be persuaded that it is “more likely than not” that the conduct occurred.   Notice that this means that you can, and must, conclude that sexual violence occurred if it satisfies that standard, even though you are not absolutely certain.  You cannot just throw up your hands, declare it a “he said/she  said” situation  and then do nothing about it.  You have to make the call: is it more likely than not that this actually happened?

 

Last year our local police investigated an allegation of sexual assault by a student, and then dropped it without charging or arresting anyone.  So we closed our Title IX investigation also.

You shouldn’t have.  Your obligation to investigate and take appropriate action is independent of the criminal proceedings. OCR: “Because the standards for pursuing and completing criminal investigations  are different  from those used for Title IX investigations, the termination of a criminal investigation without an arrest or conviction does not affect the school’s Title IX obligations.”

They also point out that you should notify complainants of the right to file a criminal complaint “and should not dissuade a complainant from doing so either during or after the school’s internal Title IX investigations.”

 

SUMMARY

We hope this gives you a good overview on this topic.  Be sure that your district’s Title IX coordinator is aware of the new guidance, and prepared to make any changes that are necessary and/or prudent.  There will be much to do with regard to training of staff and all those “responsible” employees you have.

To locate the Dear Colleague Letter and the Q and A, go to: http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix. pdf