Table of Contents
New Rules (May 11, 2020)
Note: This section is not meant to replace the Introduction below but does update the United States Department of Regulations regarding sexual assault in our schools. However, this new rule does supersede guidance from the Obama administration which is also provided below (basically upending it.)
Following the links below will you, the reader, to the new regulations as well as some relevant articles discussing the implications of those regulations for educators in more informal terms. Readers may click here on The New Rule for the actual contents, not as of the date above, actually published in the Federal Register. “Rule” may be a bit of a misnumer, as the actual document runs 2033 pages (not a misprint, that two thousand and thirty three) pages. Once published, this rule will have the force of law. Your editor does not claim to have read all 2033 pages of the new rule (or, for that matter, any page) nor to possess any expertise in interpreting it.
The rather lengthy ED Summary is cut and pasted below. Following that are some of the articles published about the new rule, all of which are a much faster read. This writer would actually suggest that you, gentle reader, skip to the news reports at the bottom if this is not a subject (sexual assault) for which you are personally likely to have personal responsibility in addressing.
In short, depending on your perspective, the new rule either bolsters the rights of students accused of sexual misconduct while reducing institutional liability OR the rule upholds the rights guaranteed by Title IX by by restoring needed balance to the enforcement of Title IX. The ED position is that it has strengthened Title IX protections for sexual assault survivors while holding schools and universities accountable for failure to respond equitably and promptly. No attempt will be made here to reconcile those positions.
ED Summary
WASHINGTON — U.S. Secretary of Education Betsy DeVos took historic action today to strengthen Title IX protections for survivors of sexual misconduct and to restore due process in campus proceedings to ensure all students can pursue an education free from sex discrimination. For the first time ever, the Department’s Title IX regulations define sexual harassment, including sexual assault, as unlawful sex discrimination. The new Title IX regulation holds schools accountable for failure to respond equitably and promptly to sexual misconduct incidents and ensures a more reliable adjudication process that is fair to all students. The new regulation comes after years of wide-ranging research, careful deliberation, and critical input from survivors, advocates, falsely accused students, school administrators, Title IX coordinators, and the American people, including over 124,000 public comments.
“Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” said Secretary DeVos. “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process. We can and must continue to fight sexual misconduct in our nation’s schools, and this rule makes certain that fight continues.”
Since the beginning of her tenure, Secretary DeVos has worked to ensure all students have the freedom to learn in a safe environment, free from discrimination. The new Title IX regulation helps to achieve that goal by codifying prohibitions against sexual harassment in schools for the first time in history. The regulation carries the full force of law, unlike the previous administration’s much-criticized “Dear Colleague” letter on the topic which denied students basic due process protections and led to cases frequently being overturned by the courts. With the benefit of robust public participation in the rulemaking process, this new Title IX regulation reflects Secretary DeVos’ commitment to ensuring that every survivor’s claim of sexual misconduct is taken seriously, and every person accused knows that guilt is not predetermined.
Key provisions of the Department of Education’s new Title IX regulation:
- Defines sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, as unlawful discrimination on the basis of sex
- Provides a consistent, legally sound framework on which survivors, the accused, and schools can rely
- Requires schools to offer clear, accessible options for any person to report sexual harassment
- Empowers survivors to make decisions about how a school responds to incidents of sexual harassment
- Requires the school to offer survivors supportive measures, such as class or dorm reassignments or no-contact orders
- Protects K-12 students by requiring elementary and secondary schools to respond promptly whenany school employee has notice of sexual harassment
- Holds colleges responsible for off-campus sexual harassment at houses owned or under the control of school-sanctioned fraternities and sororities
- Restores fairness on college and university campuses by upholding all students’ right to written notice of allegations, the right to an advisor, and the right to submit, cross-examine, and challenge evidence at a live hearing
- Shields survivors from having to come face-to-face with the accused during a hearing and from answering questions posed personally by the accused
- Requires schools to select one of two standards of evidence, the preponderance of the evidence standard or the clear and convincing evidence standard – and to apply the selected standard evenly to proceedings for all students and employees, including faculty
- Provides “rape shield” protections and ensures survivors are not required to divulge any medical, psychological, or similar privileged records
- Requires schools to offer an equal right of appeal for both parties to a Title IX proceeding
- Gives schools flexibility to use technology to conduct Title IX investigations and hearings remotely
- Protects students and faculty by prohibiting schools from using Title IX in a manner that deprives students and faculty of rights guaranteed by the First Amendment
Assistant Secretary Kenneth L. Marcus of the Office for Civil Rights (OCR) added, “The new Title IX regulation is a game-changer. It establishes that schools and colleges must take sexual harassment seriously, while also ensuring a fair process for everyone involved. It marks the end of the false dichotomy of either protecting survivors, while ignoring due process, or protecting the accused, while disregarding sexual misconduct. There is no reason why educators cannot protect all of their students – and under this regulation there will be no excuses for failing to do so. In a string of recent major OCR Title IX cases, and in a large number of investigations over the last few years, we have shown that we will hold institutions accountable under federal civil rights laws. This regulation provides important new tools that will strengthen our ability to do so.”
Today’s action on Title IX is only one of many substantial ways Secretary DeVos has moved to protect survivors of sexual misconduct and all students.
Under the Secretary’s leadership, OCR has aggressively investigated schools that fail to protect students from sexual misconduct and to bring them into compliance with the law. The Secretary has required sweeping reforms to protect students, most notably at Michigan State University, Pennsylvania State University, the University of Southern California, and Chicago Public Schools.
The Secretary’s recently commenced initiative on sexual assault in K-12 schools enhances OCR’s enforcement of Title IX in elementary and secondary schools and strengthens the responsibility of schools to respond to incidents of sexual misconduct. This major initiative also builds on the Department’s work to implement the “Pass the Trash” provisions of the Every Student Succeeds Act (ESSA), which prohibits elementary and secondary school district administrators from shifting employees who sexually abuse students from school to school.
Over the last three years, OCR has closed a total of 172 sexual violence cases with change, a 375% increase over the prior eight years in the annual number of sexual violence cases closed with change.
Some summaries that are really summaries.
CNN: DeVos finalizes regulations that give more rights to those accused of sexual assault on college campuses
Fox News: DeVos releases new campus sexual assault rules, allowing hearings and cross-examination
Introduction
Title IX prohibits discrimination based on sex in federally funded programs and is enforced by the Office for Civil Rights, the same division in the Dept. of Education (ED)responsible for enforcing ADA/504 and Title VI in the schools.
Title IX states that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Although on a day to day basis, providing boys and girls with equal opportunities, particularly equal opportunity in sports, is a major focus of Title IX, preventing sexual harassment of all t ypes is also an administrative responsibility. Failure to address that responsibility also can and has been the source of a number of lawsuits seeking damages. There are plenty of on-line resources regarding the rights of students with respect to sexual discrimination in athletics, e.g., Remedies in Title IX Athletics Cases.
The basic principle here as in other areas of education law is that if a school knows a child is being hurt, the school is supposed to do something. Sometimes, however, in implementing that simple precept, schools forget that the principle is intended to help children and, in mindlessly upholding the principle, actually hurt children for whom it was intended to protect. For example
School Drops Sexual Harassment Charge After Six Year Old Kisses Girl (He had kissed her on the cheek and then again on the hand. The fact that he was disciplined wasn’t what raised public concern; it was the fact that he had been suspended for “sexually harassing” the little girl.)
Georgia Student Suspended for One Year for Hugging Teacher
Mistaken Hug by Disabled Student Leads to Charge of Sexual Assault This incident involved a 20 year old autistic student who kissed a woman he thought he knew on the top of her head. “A kiss is considered an assault.”
School Accused 5 year old of sex harassment (The five year old pinched a girl’s buttocks in the hallway)
Love note results in 9 year old in trouble for sexual harassment.
Sexual harassment needs to be addressed. But clearly school administrators also need to know what is and what is not sexual harassment!
So what is sexual harassment? OCR defines it as follows:
Sexual harassment is conduct that:
- is sexual in nature;
- is unwelcome; and
- denies or limits a student’s ability to participate in or benefit from a school’s education program.
Sexual harassment can take different forms depending on the harasser and the nature of the harassment. The conduct can be carried out by school employees, other students, and non-employee third parties, such as a visiting speaker. Both male and female students can be victims of sexual harassment, and the harasser and the victim can be of the same sex.
The conduct can occur in any school program or activity and can take place in school facilities, on a school bus, or at other off-campus locations, such as a school-sponsored field trip or a training program at another location. The conduct can be verbal, nonverbal, or physical.
The judgment and common sense of teachers and school administrators are very important elements in determining whether sexual harassment has occurred and in determining an appropriate response, especially when dealing with young children.
What are some examples of sexual conduct?
Examples of sexual conduct include:
- making sexual propositions or pressuring students for sexual favors;
- touching of a sexual nature;
- writing graffiti of a sexual nature;
- displaying or distributing sexually explicit drawings, pictures, or written materials;
- performing sexual gestures or touching oneself sexually in front of others;
- telling sexual or dirty jokes;
- spreading sexual rumors or rating other students as to sexual activity or performance; or
- circulating or showing e-mails or Web sites of a sexual nature.
So how should an administrator distinguish between innocent behavior and sexual harassment? OCR offers the following guidance:
School personnel should consider the age and maturity of students in responding to allegations of sexual harassment. When determining whether a young child has committed sexual harassment, it is important for teachers and school administrators to use good judgment and common sense.
| Example 1: On one occasion, a first-grade student kisses another first-grade student on the cheek in the playground. This behavior does not constitute sexual harassment. |
| Example 2: On numerous occasions over a period of several months, a fifth-grade student inappropriately touches another fifth-grade student and makes overtly sexual comments and gestures to that student. The conduct is unwelcome and results in the victim’s grades falling because he or she is unable to concentrate on studying. This behavior constitutes sexual harassment. |
The source of the quotation above is a ten page summary of schools’ Title IX responsibilities entitled Sexual Harassment: It’s Not Academic . The pamphlet is recommended for distribution.
The following federal regulations carry the full force of the law: Non Discrimination on the Basis of Sex 34 CFR106
Title IX Coordinators and those with a specific interest in gender equality should also be aware of the following links to OCR materials:
OCR Documents on Title IX:
OCR Documents from the Reading Room
OCR Publications on Title IX:
OCR Publications on Title IX from the Reading Room
OCR issued a FAQ on that topic last updated in 2014 at:
OCR FAQ on Sexual Harassment
While the focus on this page will be on school responsibilities with respect to sexual harassment issues, some of the case law regarding other aspects of Title IX is clearly relevant, e.g., the Supreme Court case of Franklin v. Gwinnet Public Schools, Supreme Court, 1991.
Supreme Court Decisions
Gwinnet Public Schools, Supreme Court 1992
Key Words: Title IX, damages, athletics
Published: Yes
Decided for: The plaintiffs
In Franklin, the Supreme Court ruled that students who are subjected to sexual harassment in public schools may sue their boards for monetary damages under Title IX of the Education Amendments of 1972. Franklin is important because it was the first case wherein the Supreme Court upheld an award of monetary damages under Title IX.
Six years later, a Title IX damages case was again before the Supreme Court. in this instance, however, regarding a teacher who had sexually harassed a student.
Gebser v. Lago Independent School District, Supreme Court, 1998
Key Words: Title IX, sexual harassment, damages
Published: Yes
Decided for: The school system
The court’s ruling in a nutshell was
Absent further direction from Congress, the implied damages remedy should be fashioned along the same lines as the express remedial scheme. Thus, a damages remedy will not lie unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination and fails adequately to respond. Moreover, the response must amount to deliberate indifference to discrimination, in line with the premise of the statute’s administrative enforcement scheme of an official decision by the recipient not to remedy the violation. Applying the framework to this case is fairly straightforward, as petitioners do not contend they can prevail under an actual notice standard. Lago Vista’s alleged failure to comply with federal regulations requiring it to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims does not establish the requisite actual notice and deliberate indifference, and the failure to promulgate a grievance procedure does not itself constitute discrimination in violation of Title IX. Pp. 14—16.
Observe, however, that the school’s defense, successful, was that the administration did not know of the illicit relationship. Where school administrations have been informed, the outcome may be and has been very different.
This case was followed by Davis v. Monroe County Board of Education, Supreme Court, 1999
Key words: Title IX, sexual harassment
Published: Yes
Decided for: the plaintiff
In the case above, teacher on student harassment gave rise to a right to seek damages, but only if the administration was aware and did nothing. In this case, the Supreme Court, in a split decision, held that peer on peer harassment could also give rise to a lawsuit seeking damages against the school board under circumstances similar to Gebser and remanded the case back for further adjudication. The standard set forth is best explained in the words of the court.
A single instance of severe one-on-one peer harassment could, in theory, be said to have such a systemic effect, but it is unlikely that Congress would have thought so. The fact that it was a teacher who engaged in harassment inFranklin and Gebser is relevant. Peer harassment is less likely to satisfy the requirements that the misconduct breach Title IX’s guarantee of equal access to educational benefits and have a systemic effect on a program or activity. .
2. Applying this standard to the facts at issue, the Eleventh Circuit erred in dismissing petitioner’s complaint. This Court cannot say beyond doubt that she can prove no set of facts that would entitle her to relief. She alleges that LaShonda was the victim of repeated acts of harassment by G. F. over a 5-month period, and allegations support the conclusion that his misconduct was severe, pervasive, and objectively offensive. Moreover, the complaint alleges that multiple victims of G. F.’s misconduct sought an audience with the school principal and that the harassment had a concrete, negative effect on LaShonda’s ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort either to investigate or to put an end to the harassment.
A more recent case can be found in Fitzgerald v. Barnstable Schools.
Fitzgerald v. Barnstable Schools, Supreme Court, January 21, 2009
Key Words; Title IX, sexual harassment, damages, Section 1983
Published; Yes
Decided for: The plaintiff
What was being argued here was whether or not a plaintiff alleging an administrator’s violations of a a person’s rights under Title IX could also be brought under Section 1983. The case was significant because individual damages could be sought under Section 1983 of the Civil Rights (in contrast to lawsuits brought under Section 504, wherein damages could only be sought from the school system itself.)
In sum, the court held ” Title IX does not preclude a §1983 action alleging unconstitutional gender discrimination in schools..” It remanded for further adjudication.
Lower Court Sexual Harassment Case
A.B. v. Rhinebeck, District Court, 2006
Key Words: Title IX, sexual harassment, damages, consent decree
Published: Yes
Decided for: the plaintiffs
This case involved four girls who sued their school system alleging that a principal had created a hostile environment by sexually harassing them. This last, actually just entering a consent decree agreed to by the girls and the school system, was just the last in a long line of court hearings. The case was finally closed in 2009, when the parties informed the court that all the terms of the agreement had been implemented.
Financially, the agreement required the district to pay out $152,500 to the girls, and $96,500 to their attorney. Of greater significance to the larger community, the consent required the district to hire an expert regarding sexual harassment training and prevention to assist in developing the comprehensive plan, to evaluate the district’s sexual harassment policies, to conduct a school climate assessment, and to develop a mandatory training program. The consent decree also requires the district to educate school board members and employees regarding how to respond to sexual harassment complaints.
Ludlow v. Northwestern University,District Court, August 28, 2015.
Key Words: Title IX, Sexual harassment
Published: Yes
Decided for: The university
Although not a public school case, the facts of this case were so unusual, they seemed worth adding to this page. A girl had accused Professor Ludlow of sexual harassment, and she sued the university for violation of their her under Title IX. The university, however, showed that in response to her complaint they had investigated the case thoroughly and had addressed the issue, so the court ruled in favor of the university and dismissed the girl’s lawsuit. (Those steps included denying him a pay raise for a year and ordering him to avoid social situations with students, but he retained is position and was not terminated. The rising Senior found that insufficient.) The case wasn’t clear-cut, regardless. The professor and the female student had been engaged in a romantic relationship. She alleged he had sex with her one night when she didn’t want to have sex, but the evidence showed that she sent him loving messages subsequent to that event and that she continued to engage in a sexual relationship with him. Her advocate suggested that they were in an unequal relationship, despite the fact that the professor had no supervisory responsibility (she was not one of his students.) Why unequal? Because he bought her expensive dinners and through the exercise of his “charm.”
This is the case, however, where Professor Ludlow turned around and also sued the university, alleging HIS Title IX rights had been violated. The Title IX complaint was dismissed with prejudice because the professor neglected to suggest that the alleged discrimination had anything to do with his sex. In other words, even though he had made the case that he was treated differently than the female accusing him of sexual misconduct, he did not make the case that if the accuser was a male and he was a she that “she” would have been treated any differently. The professor had also made some claims under state law; the judge in this case declined to exercise jurisdiction and dismissed those claims without prejudice, as the outcome of his state based claims was not self evident.
This lawsuit had already had a very long history.
It’s not over till the fat lady sings. Subsequent to the decision above, the local newspaper reported that the professor resigned last fall (2015) after the university had started to take steps to dismiss him, and that the student still had an appeal pending with the Seventh Circuit . . .
Title IX Update *
In April, 2015, the Office for Civil Rights published a package of three documents on Title IX.
The first was a letter to administrators reminding them of their obligation to appoint a Title IX Coordinator to be responsible for Title IX enforcement.
colleague-201504-title-ix-coordinators
Also in the package was a “thank you” letter to those who have been appointed Title IX Coordinators.
OCR Cover Letter to Title IX Coordinators
And lastly, a Resource Guide for Title IX Coordinators was provided.
NASP Position Statement *
NASP has issued several position papers specifically addressing the role of school psychologists in helping their schools address the needs of gay, lesbian, and transgender youths.
Position Statement LGBTQ_Youth
Advice to Parents and a Model Complaint *
Findlaw has posted a fairly brief discussion of the Title IX rights as they apply to sexual harassment, and in a relatively brief article on Sexual Harassment at School included a model letter for parents to use a guide for filing a written complaint. It includes the necessary elements outlined by OCR in the publication above and is reproduced here for your convenience:
Sample Letter *
Dear Principal Smith,
My daughter, Sierra, is in Mr. Taylor’s 5th grade class and has expressed to me that she is suffering from sexual harassment at school. Apparently, another student in her class has been harassing her with sexually inappropriate conduct. I would rather wait and tell you his name in private. The specific acts of harassment he has engaged in include:
- Threatening to rape her
- Chasing her down the hallways
- Spying on her in the bathroom
- Sending her sexually obscene notes
- Telling her friends that he wants to “prong” her
This extremely inappropriate conduct began in September of this year. Sierra has repeatedly insisted that the boy stop and has even, numerous times, told Mr. Taylor, who does nothing. The student even sits next to Sierra in class, and Mr. Taylor refuses to allow Sierra to move seats.
This sexual harassment at school has seriously affected my daughter’s ability to perform at school. She never wants to go to school, or participate in sports or music. As you may know, she has been on the honor roll consistently since the first grade. Her grades have slipped to a “C” average. Most upsetting, she has fallen into a sad and moody state. I am deeply concerned for her.
I am leaving this note to notify you that I would like to meet with you at your earliest convenience. I would like to discuss with you what disciplinary action you plan to take to alleviate the harassment. I can be reached on my cell phone at 555-5252.
Sincerely,
Concerned Parent
OCR and Case Resolutions
OCR is responsible for enforcing Title IX in the schools. Unlike its sister agency, FPCO, OCR is well staffed and has had no problem wielding its enforcement powers.
It has published all of its Resolution Letters and Resolution Agreements on its website. There are approximately as of February 201625 letters regarding Title IX and sexual harassment. A few of them are summarized below. (A search engine allowing access to all of OCR’s resolution letters and agreements is found on their Search Resolutions and Agreement page.) OCR allows districts to enter into a voluntary Resolution Agreement with complainants before its investigation is completed, and many school districts take advantage of that option rather than be subject to an on-going, time consuming, and potentially costly OCR investigation.
Clarenceville School District, Letter to Koopnick, Esq. July 11, 2014. In this case, “The complaint alleged that the District discriminated against a female student (the Student) on the basis of her sex. Specifically, the complaint alleged that, from March 2012 through the 2012-2013 school year, the Student was repeatedly harassed by her peers at school sexually and in retaliation for her having reported previous alleged sexual harassment from the fall of 2011, and, despite the Student’s complaints to District staff, the District failed to respond.” This was another instance where the school opted for a voluntary resolution. “Under the terms of the enclosed voluntary agreement, the District will: Send the Student’s parent a letter containing an offer, should the Student choose to return to the District, to provide academic support, including tutoring, to address academic deficits and a District point of contact to whom the Student can report harassment or bullying. Revise its policies and procedures related to sex discrimination, including sexual harassment, to fully comply with Title IX. Adopt, implement, and publicize the revised policies and procedures. Train all District staff and all middle-school and high-school students on the revised policies and procedures. Conduct periodic climate assessments of the District middle school and high school to assess the effectiveness of the steps taken pursuant to the agreement. ”