The Title IX Spotlight Shifts from the Campus to the Schoolhouse


Already at a loss for the Covid-19 challenge, public elementary and secondary schools have another problem to address: sexual harassment. In February, the U.S. Department of Education announced a brand new enforcement initiative made to \”combat the troubling rise of sexual assault in K- -12 public schools.\” During the Obama administration, the department's Office for Civil Rights, or OCR, focused mainly on sexual assault on college campuses. Three factors led the department to shift gears and pay more attention to elementary and secondary education: new federal legislation that prohibits schools from passing along with other districts employees who have involved in sexual misconduct with students; a study of Chicago schools that uncovered pervasive sexual misconduct by teachers and students; and evidence in the department's Civil Rights Data Collection that nearly 10,000 students in elementary or secondary schools were the victim of assault, rape, or attempted rape throughout the 2021 -16 school year.

In early May, the department released its long-awaited regulations spelling out schools' responsibilities for addressing sexual harassment under Title IX of the Education Amendments of 1972. This was the very first full administrative rulemaking process the department has ever conducted about them and it is most substantial effort to describe the differences between your rules that apply to K -12 schools and those that affect colleges and universities. The department's explanation of their new regulations runs to more than 2,000 pages. Since elementary and secondary schools will soon come under greater scrutiny than ever before, school attorneys and Title IX officers will be poring over that gargantuan document to determine which school districts should do to adhere to federal law.

Title IX says nothing about sexual harassment or sexual assault; it really prohibits educational institutions that receive federal funds from discriminating based on sex. In the 1990s, however, federal courts started to hold school districts accountable for sex-based harassment serious enough to deny students equal access to education. In 1992, the final Court ruled that a school district might be sued for monetary damages for failing to prevent serious, ongoing abuse of a student with a teacher. Then, in 1998 and 1999, our prime court issued two additional decisions that established the legal framework for evaluating schools' liability for sexual misconduct: a college is likely under Title IX only when it has \”actual notice\” of harassment \”that is so severe, persistent, and objectively offensive it effectively bars the victim's access to an educational opportunity or benefit,\” and responds to such misconduct with \”deliberate indifference.\” All three of these cases, it bears noting, involved elementary and secondary schools.

The Supreme Court's standard was more lenient compared to standard OCR had announced a couple of years earlier inside a guidance document. On the day prior to the inauguration of George W. Bush, the outgoing Clinton administration explained it would not stick to the court's lead. The court's standard, it insisted, applied simply to suits for monetary damages, not to the guidelines schools must follow to qualify for federal funding. OCR doubled down on its previous position, establishing more demanding procedures for reporting, investigating, and responding to harassment complaints. For over a decade, those 2001 guidelines remained in legal limbo, neither enforced nor repudiated through the Bush administration.

In 2010, the Obama administration began a multiagency campaign to deal with an issue the president claimed \”threatens our families\” and \”tears in the fabric of our communities\”: sexual violence on college campuses. The important thing component of that effort was a 2011 \”Dear Colleague” letter created by the top of OCR. It explained at length what all schools that receive federal funds-not just colleges-must do to adhere to Title IX. The new guidelines went well past those previously announced in specifying the procedures schools are required to follow in disciplinary proceedings and also the remedial steps they have to take for both individual victims as well as for \”the broader student population.\” The letter required schools to use the \”preponderance of the evidence\” standard (sometimes referred to as \”50 percent plus a feather\”) when adjudicating complaints of misconduct as opposed to the \”clear and convincing evidence\” standard used by some colleges. The agency strongly encouraged schools to dispense with hearings altogether by instituting the so-called \”single-investigator model.\” This gives a single person appointed through the school's Title IX coordinator authority not only to investigate the alleged misconduct, but also to find out guilt or innocence-with limited chance of appeal. The letter also established a broad definition of sexual harassment, one which swept in many forms of speech as well as conduct.

OCR then conducted hundreds of lengthy investigations of colleges and universities, many of which culminated in detailed compliance agreements. Underlying this effort was the contention that \”one in five college women is sexually assaulted in college\” as a result of the campus \”rape culture.\” Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR's \”new paradigm\” for sexual-harassment regulation is built to \”change the culture on the college campuses, and that's hugely important as to cure the epidemic of sexual violence.\”

These regulatory policies were attacked by civil libertarians who claimed that OCR's rules had eviscerated students' due-process and free-speech rights, by many college and law-school professors who resented OCR's intrusion into academic affairs, and by conservatives who charged that OCR had exceeded its legal authority. That the Trump administration would withdraw the Obama administration's guidance and revise its investigation strategy would be a foregone conclusion. Less clear was what would replace them. Praoclaiming that \”the era of rule by letters\” was over, within the fall of 2021, Secretary DeVos promised to use the rulemaking procedure mandated by the Administrative Procedure Act to determine new rules rather than announce them unilaterally through \”Dear Colleague\” letters. It took the department over 2 yrs to accomplish this rulemaking process. Its initial proposal, released in November 2021, received over 124,000 comments. The department responded to the majority of those comments in its May 2021 announcement.

The central feature from the Trump administration's approach is really a go back to the framework established by the Supreme Court in 1998 and 1999. No longer would schools have broad responsibility to \”change the culture,\” to \”end any harassment,\” and to address the results of \”rape culture\” on the entire student population. The focus was on schools' responsibility to address particular cases of serious sexual misconduct. Simultaneously, the new rules go beyond the court's bare-bones framework to describe what constitutes harassment, what schools should do to identify and adjudicate installments of misconduct, and the remedies they have to provide to victims of such misconduct.

In its 2021 proposal, the department also asked for comments on \”whether there are areas of the proposed rule that'll be unworkable in the elementary and secondary level, if there are additional areas of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties. . . and whether there are other unique facets of addressing sexual harassment in the elementary and school level the Department should consider.\” Although judges and administrators had previously acknowledged important differences between K -12 students and those in postsecondary institutions, it was the first time regulators had addressed the problem directly.

The most controversial component of the proposal and the final rule was the requirement that colleges and universities hold live hearings with cross-examination in sexual harassment disciplinary proceedings. Media coverage of the issue has focused heavily around the implications of the new rules for colleges, paying little attention to the truth that this requirement does not apply to elementary and secondary schools. It was among the two major differences between the rules that now affect K -12 schools and those that apply to higher education. The other concerned school employees' responsibility for reporting sexual-misconduct allegations. Here the new regulations established stricter rules for elementary and secondary schools.

These stricter rules address what's long been probably the most common-and most serious-criticism of the Supreme Court's framework: If schools have the effect of addressing sexual harassment only when they have \”actual knowledge\” of misconduct, what's to prevent them from \”sticking their scalp within the sand\” (as you law review article put it) to prevent liability? What must students and staff do in order to result in the school conscious of possible misconduct? The new rules require universites and colleges to really make it easy for those subject to harassment-and other people that has witnessed or learned about such harassment-to file a study using the institution's Title IX coordinator or with every other official \”who has authority to institute corrective measures.\”

Once the institution has received such reports, staff from its Title IX office must talk with the \”complainants\” (the term accustomed to describe the targets from the alleged misconduct), offer them various \”supportive measures,\” explain to them how to initiate a full investigation by filing a proper complaint, and provide them informal resolution options. The department emphasized that university students are mature enough to determine for themselves how to proceed. It claimed that research demonstrates \”that respecting an alleged victim's autonomy, giving alleged victims control over how official systems react to an alleged victim, and offering clear options to alleged victims are critical aspects of helping an alleged victim recover from sexual harassment.\” Although the Title IX coordinator retains authority to produce a full investigation with no consent from the complainant, it will usually be a challenge to prove misconduct without testimony from the key witness. Postsecondary institutions can require teachers and other employees to report harassment they witness or hear about, however the regulations do not require these to achieve this.

K -12 schools, in comparison, must consider teachers and all sorts of other school employees \”mandatory reporters.\” That means that when any employee learns of possible misconduct they have to report it to their school district's Title IX coordinator, and also the district must investigate the matter. This reflects a change in the department's 2021 proposal, which had included only teachers as \”mandatory reporters.\” The department offered this explanation of why it extended this responsibility to any or all employees:

The Department is persuaded by commenters who asserted that students in elementary and secondary schools often discuss sexual harassment experiences with someone other than their teacher, which is unreasonable to anticipate students to differentiate among employees for the purpose of which employees' knowledge triggers the school's response obligations and that do not. Elementary and secondary schools generally operate under the doctrine of in loco parentis. . . Further, employees at elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective services. The Department is persuaded that employees at elementary and secondary schools stand it a unique position with respect to students and that a school district should be held accountable for responding to sexual harassment under Title IX when the school district's employees have notice of sexual harassment or sexual harassment allegations.

Consequently, probably the most important steps schools must take to comply with Title IX would be to make it clear to any or all employees that they must immediately report alleged misconduct towards the district's Title IX coordinator. Perhaps the most egregious failing of the Chicago school system uncovered by OCR's investigation was to allow thousands of known incidents of significant misconduct go unreported and grow unaddressed.

Under the new Title IX rules, the grievance procedures established by K -12 \”may, but do not need to, offer a hearing.\” Nonetheless, schools must provide to each party-and their parents-a description from the allegation along with a copy of the investigative set of the incident. They must also \”afford all parties the chance to submit written, relevant questions that the party wants asked associated with a party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from all parties.\” Some who commented around the draft proposal objected that such a procedure \”exposes students to hostile proceedings, unnecessarily limits the discretion of local school officials, or obligates school districts to expend resources within an unwarranted manner.\” But the department held that \”written submission of questions prior to adjudication\” constitutes an essential element of due process and \”a method that benefits the truth-seeking purpose\” from the grievance procedure.

The final rules also require that every party have an equal opportunity to present evidence and appeal the first decision. The alleged perpetrator must be assumed innocent until proven guilty: the responsibility rests around the school to show that he or she has engaged in inappropriate conduct. The regulations warn against gender bias and sex stereotyping, may it be of the \”boys will be boys\” or \”girls also . about sexual assault\” variety.

The new rules also aim to clarify whether and when schools are responsible for misconduct that can take place outside school grounds. Title IX covers all the \”educational programs or activities\” provided by an institution receiving federal funds. For elementary and secondary schools this includes \”locations, events, or circumstances that the recipient exercised substantial treatments for both respondent and the context where the harassment occurs.\” Schools thus have responsibility for addressing conduct that takes put on school buses, on field trips, or at athletic events. But how about students walking home from soccer practice? Internet messages or videos sent at home computers but read at school? On these difficult matters the guidelines are silent. Complicating these boundary issues is the fact that some forms of harassment are covered by state criminal law and therefore susceptible to police investigation. Consequently, public schools need to reach agreements with local police how they'll divide surveillance duties, communicate with one another, and cooperate with investigations.

As school officials well know, federal civil-rights regulations place conflicting pressures on public schools. They're expected to protect their students not only from sexual harassment, but from many other types of bullying. At the same time, they must respect their students' basic due-process rights-including those explained within the new regulations. Throughout the Obama administration, OCR issued yet another \”Dear Colleague\” letter, this one warning against disciplinary procedures that have a \”disparate impact\” on racial minorities. That letter strongly discouraged schools from suspending or expelling students for violating school rules. Such out-of-school punishments, OCR maintained, are a key component from the \”school-to-prison pipeline.\” Even though the Trump administration withdrew this guidance, many schools have placed stricter limits on out-of-school punishments. But when an institution allows a student in prison for sexual misconduct to stay in class, it could expose many other students to further sexual harassment-and the school itself to liability.

The main reason schools should establish clear, well-publicized conduct rules and reporting procedures, and take prompt action to investigate allegations, punish transgressors, and supply remedies to victims, would be to reduce risk to students. But school officials should be concerned about their legal liability. Frequently, they will be told that failure to follow federal regulations can lead to the revocation of federal funds, though which will seldom happen. Over the past half-century, the number of times the us government has terminated funding to fail to adhere to Title IX is precisely zero. Instead, schools need to be worried about three other kinds of sanctions: private suits for damages through the victims of misconduct; investigations by OCR; and investigations by state and local police force.

The Supreme Court's 1992 decision in Franklin v. Gwinnett County Public Schools held that a student put through serious and repeated abuse by a teacher can seek monetary damages in the school district whether it could be shown that school officials knew concerning the abuse and did nothing to prevent it. The court's later Title IX decisions established a little bit more clearly the liability rules that apply in these cases, and also the new Department of Education rules show in much greater detail the way it will apply that framework. Consequently, schools that in good faith follow those regulations are unlikely to be assessed damages under Title IX. Conversely, failure to follow along with the regulations will substantially increase this risk. Since parts of the new rules are specially designed for K -12 schools, judges will be more inclined to punish people who ignore them.

Despite all the attention devoted to sexual harassment during the Obama years, up to now, OCR devoted few resources to investigating complaints in elementary and secondary schools. From 2021, OCR turned every complaint lodged against a university or university right into a full-scale investigation from the entire institution. Previously, the agency had publicized investigations only at their conclusion; now, it might announce with great fanfare which schools it planned to research. These changes were important elements of the enforcement strategy that proved remarkably good at convincing schools to change their policies. Since OCR could not rely on the courts to enforce the requirements in the 2011 \”Dear Colleague\” letter and since it might never pull the trigger to terminate federal funds, it essentially made the investigative process the punishment. For colleges, these investigations-some which lasted for years-proved costly not just financially, but in relation to their reputation. Almost all eventually agreed to OCR's demands.

These investigations were costly for OCR, too. With fewer than 600 staff members and about 10,000 individual complaints to investigate every year, the brilliant concentrate on sexual harassment on college campuses left OCR with few resources to investigate other things. In 2021, the Trump administration reverted to OCR's previous policy of turning investigations of person complaints into institution-wide compliance reviews only when it found evidence of systemic violations. This made more enforcement resources available for the K -12 initiative announced by Secretary DeVos this February.

OCR had received complaints about sexual misconduct in Chicago Public Schools in 2021 and 2021 but began its systemwide investigation once the Chicago Tribune published an expose on pervasive and serious misconduct by students and employees in lots of Chicago schools. OCR's extensive investigation revealed that, on the four-year period, Chicago schools had received 2,800 student-on-student complaints and 280 teacher-on-student complaints. Yet, for 2 decades-from 1999 to 2021-the district did not even have a Title IX coordinator, the foremost and easiest step a district must take to comply with federal rules. OCR's investigation culminated inside a 40-page \”resolution letter\” as well as an 11-page compliance agreement using the school system. The latter included not just detailed guidelines on the structure of its Title IX office and procedures to handle of complaints, but additionally 13 separate reporting requirements.

The 2021 resolution letter offered disturbing details on the extent of sexual harassment in Chicago's troubled school system. Here are just two paragraphs from that letter:

Many complaints alleged ongoing physical sexual harassment of District students, including that students were repeatedly groped, grabbed, or fondled by their peers, who were often repeat offenders with a history of sexually harassing other students. These complaints documented reports of unwelcome touching over and under clothing, on the breasts, buttocks, and groin throughout the school day and at all locations in school buildings, including in school bathrooms, around the staircase as well as in hallways, while lining up in the fountain, during recess around the playground in front of their peers, within the school parking area, on school buses on a trip for school-sponsored field trips, to extra-curricular activities, and to/from their houses to school.

OCR observed that many of the complaints described students exposing their genitals in school to as well as in front of peers-in the classroom, around the playground, within the school bathroom-and during field trips and extracurricular activities. Schools reported a significant number of complaints of verbal threats and harassment, with students disclosing that their classmates and peers made comments for example \”I'm going to rape you in the bathroom\”. . . Some students threatened more violence if their peers reported the conduct. . . The complaints suggested that some students were coaxed and pressured by their peers to send sexually explicit images and videos of themselves, which classmates then distributed widely within the school without the student's consent. In some cases, students who involved in consensual activities were filmed by their peers participating in the conduct without their knowledge and consent, and fellow students then widely shared the pictures among the student's peers who discussed, viewed, and shared the images throughout the school day. In lots of of these cases, students reported suicidal ideation or threatened self-harm.

The Tribune documented multiple cases of sexual assault and statutory rape by school employees, including teachers, security officers, and coaches. Equally disturbing was the school system's failure to deal with these problems when they were called for their attention by students as well as their parents.

To what extent is Chicago an outlier? We will have a better handle on this question once OCR begins its investigation of other school systems. Meanwhile, public schools are on observe that the federal spotlight now shines on them. Adhering to Title IX regulation has become more important than ever before.

Because most elementary and secondary school students are minors, misconduct in K -12 schools is more likely to violate state criminal law compared to type of misconduct common on college campuses. One implication of the is that private schools not subject to Title IX (because they receive no federal funding) must still recognize their responsibilities under state regulations. Recently, some of the worst abuses have been located at private boarding schools. For example, an investigation from the prestigious St. Paul's School in Concord, New Hampshire, through the New Hampshire Attorney General uncovered many cases of serious misconduct by both students and staff. It culminated in a settlement agreement establishing an \”Independent Compliance Overseer\” who would be \”embedded on the St. Paul's School campus and given the job of reporting a minimum of biannually towards the Attorney General’s Office regarding St. Paul's School's compliance with all of the terms of the Agreement.\” Private schools, too, could be wise to adhere to Title IX rules to prevent liability under state tort law.

When federal administrators and judges first used Title IX to address the problem of sexual harassment, their focus was on elementary and secondary schools. From 2010, the emphasis now use college campuses. To the credit, the Department of Education has, the very first time, explained how Title IX applies during these very different contexts. Because the department steps up its investigation of K -12 schools, the brand new rules on due process and mandatory reporting become particularly significant.

Will these new rules lessen the incidence of sexual misconduct in public schools, or can they make it easier for schools to look another way? Or will schools simply substitute one type of procedural compliance for another? The truth is that we do not know much about the effectiveness of Title IX rules. As vice president, Joe Biden was one of the most vigorous advocates of the administration's efforts to lessen sexual assault on campus. But six years after that campaign began, Biden wrote instructions to college presidents claiming that little had changed: \”Twenty-two years back, approximately one in every five women attending college experienced rape or sexual assault. Today time is the same.\” The tough the fact is that we don't have a good handle on either the frequency of sexual assault on campus or the effectiveness of various policy responses.

What we all do know is that young women who don't attend college are more likely to function as the victims of sexual assault than those that do. As Professor Callie Marie Rennison from the University of Colorado has stated, \”while people have been bombarded using the notion that colleges and universities are hotbeds of sexual violence,\” the rate of sexual victimization of women with no high-school education is \”more than 400 percent more than those with a bachelor's degree or even more.\” Or, to place it differently, female students attending Chicago public schools tend to be more likely to face sexual harassment that seriously limits their use of education than those attending Yale, Berkeley, or even Michigan State. This does not mean we ought to do less to address sexual misconduct at the college level, however it does suggest that federal regulators are to pay more attention to the issue in certain in our largest school systems. Let's hope that the new rules specifically designed for elementary and secondary schools will aid that effort.

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