The federal Office for Civil Rights (OCR), which is charged with implementation of Title IX, has turned its attention to the problem of sexual violence in schools. As I explained in Part One of this series, OCR recently issued guidelines for school districts regarding how to deal with sexual violence, and how to ensure compliance with Title IX’s non-discrimination mandate. Moreover, OCR recently found a school district in non-compliance with Title IX due to its mishandling of a sexual-assault complaint in a high school. In this column, I will examine both OCR’s approach to sexual violence, and its findings in this recent case.
The Problem of Sexual Harassment and Sexual Violence in Schools
The Supreme Court’s first applied Title IX to sexual harassment in schools in the case of Franklin v. Gwinnett County Public Schools (1991). In that case, a tenth-grade girl complained that her teacher, who was also a coach, had subjected her to a barrage of sexual harassment, including sexually-oriented conversations; on three occasions, he insisted that other teachers release her from class so that he could take her to a private office and force her to have sex with him.
The issue before the Supreme Court was whether the school district could be forced to pay monetary damages for its violation of Title IX. (A 1979 case had established that individual plaintiffs could sue to enforce Title IX in private lawsuits.) The Court said yes—victims of Title IX violations could indeed seek the full range of remedies that are available in private lawsuits, including compensatory and punitive damages. (As I discussed in Part One of this two-part series of columns, in later cases, the Court established the standards by which schools can be held liable for harassment by teachers or peers.)
Franklin was decided at a time when awareness of sexual harassment in schools was just emerging. After the ruling, which gave the green light to lawsuits for money damages, there was a period of vigorous litigation. At the same time, outside of courtrooms, greater attention was also being paid to the issue. In 1993, the first two comprehensive studies of sexual harassment in schools were published. Both studies documented a problem of sexual harassment in schools, identified common patterns of harassment, and tried to distinguish harassment from other types of undesirable, but not necessarily actionable ways that children interact with each other at school.
The American Association of University Women (AAUW), which was the author of one of these studies, recently published an updated study, Crossing the Line (2011), which shows that sexual harassment continues to be prevalent and have a damaging effect on its victims, but that its nature has shifted in many ways; particularly, modern sexual harassment in school tends to include online harassment of various sorts.
OCR’s Approach to Enforcing Title IX in the Sexual-Violence Context
In April 2011, OCR issued a “Dear Colleague” letter (DCL) to clarify the application of Title IX to incidents of sexual violence in schools and universities, as I mentioned briefly in Part One of this series of columns. The DCL was meant to remind schools of their obligations to promptly and effectively respond to sexual violence if they know or should know that it has occurred. While the same legal and administrative standards apply to sexual violence as apply to all forms of sexual harassment, the DCL gives illustrations and suggestions that specifically apply to sexual violence. It also warns recipients to avoid some common missteps in handling complaints of sexual violence.
The DCL defines sexual violence as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual may also be unable to give consent due to an intellectual or other disability.” The physical acts at issue can include rape, sexual assault, sexual battery, and sexual coercion.
As educational institutions establish procedures and handle individual complaints, they are cautioned by the DCL to keep in mind that: (i) peer harassment/violence may be covered by Title IX even if it occurs off grounds initially, if it has continuing effects in the school setting; (ii) they must respond even if the harassed student does not file a complaint; (iii) they should obtain consent from the complainant before beginning an investigation, and should take all reasonable steps to protect confidentiality if requested; (iv) they should notify the complainant of his or her right to file a criminal complaint—and should not dissuade him or her from doing so while awaiting the outcome of the internal investigation; (v) they should not wait for the conclusion of a criminal investigation before commencing their own investigation—they must take immediate steps to protect the student in the educational setting, regardless of any parallel criminal process; (vi) they should be using a preponderance-of-the-evidence standard when it comes to the burden of proof—which is the standard used by OCR when evaluating compliance with Title IX—and not the higher clear and convincing evidence standard; (vii) they should develop specific training materials on sexual violence; (viii) these rules apply to all students, including athletes and coaches.
These are all issues that prior cases have raised; OCR is suggesting corrective measures for bad tendencies that some educational institutions seem to have developed when confronted with harassment.
The Ruling in Student v. Henderson Independent School District (HISD)
Once again, here are the alleged facts of the case: A female high-school student alleged that she was sexually assaulted in a band practice room by a fellow student. Although she immediately reported the incident to an assistant band director (ABD), the information was neither passed up the chain of command nor acted upon.
Two days later, she reported it to a second official, who then reported it to a vice principal, her mother, and the police. The very next day, the police notified the student’s mother that it deemed the incident to be “consensual” and that no criminal activity had occurred. The school never conducted its own investigation, but instead placed both students in an alternative school for 45 days as punishment for “public lewdness” in violation of the school’s code.
In her complaint to OCR, represented by the ACLU Women’s Rights Project, the female student argued that the school district had both discriminated against her, by failing to act on her complaint, and retaliated against her for filing the complaint, both actionable under Title IX.
In an adjudication issued on June 14, 2012, OCR concluded that HISD was non-compliant with Title IX in both respects. Although HISD maintained appropriate anti-discrimination policies and grievance procedures, OCR found, it nevertheless had failed to “appropriately investigate or otherwise respond to the allegation of sexual harassment.”
More specifically, the school policy called for all complaints to be investigated, but the Title IX compliance officer did not interview any of the relevant parties or potential witnesses to the alleged sexual assault.
The school thus committed a classic, but unacceptable error: it deferred to the police to investigate the allegation, and based its disciplinary action on the police findings alone.
Why is this an error? As OCR explains in this ruling,
Police investigations or reports may be useful in terms of fact gathering. However, because legal standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the recipient of its duty under Title IX to resolve complaints promptly and equitably.
Because HISD never conducted an investigation, using the “preponderance of the evidence” standard required under Title IX, it never had any basis for either dismissing the complaint or disciplining either party. It simply borrowed the findings of the police department, without asking what the basis for its findings had been, or considering the different standards of proof that apply in the Title IX context. HISD had no choice but to conduct an independent investigation into the student’s allegations, and its failure to do so rendered it out of compliance with Title IX.
In addition, OCR found sufficient evidence that HISD had improperly retaliated against the complainant. Shortly after making her complaint, and without any investigation into its merits, she was cited for violation of the school’s ban on public lewdness, removed from her high school, and forced to attend the same alternative program as her alleged assailant. (She further alleges that she was forced to see him several times a day at the alternative placement, but OCR was not able to corroborate that claim.)
Here, again, HISD’s failure to conduct an investigation of the claim rendered it out of compliance with OCR regulations. Without an investigation showing that the incident was in fact consensual and thus potentially an incidence of “public lewdness,” HISD had no non-discriminatory or non-retaliatory basis for taking a clearly adverse action against the complainant.
OCR therefore deemed the student’s removal and her alternative placements to be adverse actions, and deemed the timing of both to be indicative of retaliation. HISD’s only basis for the punitive placement, OCR noted, was the “student’s own self-reporting of alleged sexual violence.” And to punish a student’s report clearly violates Title IX and its implementing regulations.
The Administrative Remedies for Non-Compliance with Title IX
As I discussed above and in Part One of this series of columns, individuals who sue in court to enforce Title IX have access to the full panoply of remedies that the statute affords, including the remedy of money damages. But the trade-off for those remedies is the plaintiffs’ having to meet the almost impossibly high legal standard that was set forth under Gebser and Davis for institutional liability for sexual harassment.
In contrast, when OCR investigates Title IX complaints, it applies a more lenient legal standard—that is, it is more likely to find a violation than a court is likely to find a school district liable for damages. Based on this more lenient standard, OCR can coerce schools to undertake various remedial measures as part of a “resolution agreement.” In this particular case involving HISD, the resolution agreement requires HISD to remedy its general inattention to sexual violence, as well as to provide remedies to the particular student who brought the complaint.
Specifically, HISD is required to take steps to remedy its general inattention to the problem of harassment. Toward that end, it must:
- review and revise its policies to ensure all sexual harassment and sexual violence complaints are investigated appropriately;
- disseminate the revised policies to all members of the HISD community, including students and parents;
- ensure that the Title IX compliance officer is notified of every complaint and documents action taken;
- offer mandatory training for all employees for two years;
- designate an on-call counselor to assist victims of harassment or sexual violence during school hours; and
- review campus police records for the past two years for any complaint of sexual assault that was treated exclusively as a criminal matter;
- track and report to OCR at the end of the next academic year about all harassment complaints received and investigated;
- appoint a committee with broad community involvement to develop student training materials;
- conduct periodic “climate checks” with enrolled students to assess the effectiveness of HISD’s efforts to maintain an environment free of sexual harassment and violence.
In addition, HISD must take steps to remedy the harm done to the complainant. It must remove the disciplinary placement from her educational record and pay for her to receive private counseling.
Why Administrative Enforcement Matters
OCR’s resolution of this complaint reflects its commitment—previewed by its April 2011 “Dear Colleague” Letter (DCL)—to eradicating sexual violence in educational settings. Administrative enforcement has taken on increasing importance as judicial remedies have become harder to obtain. While it is often tempting for schools at all levels to sweep these problems under the rug, Title IX does not permit such an approach. Schools should be held to the standards that the law banning sex discrimination in education requires.
But an adjudication like this is not just important symbolically. It had a real effect on the student who brought this complaint in the first place because she felt helpless. As she wrote in a blog post (available in full here) before the favorable ruling came down,
December 6th, 2010, was a day in my life I will never understand, and probably never come to grips with. I thought that a school was the safest place to be—it turned out that I was never more wrong in my life. . . . After being raped the school charged me with sexual misconduct and sent me to a disciplinary school where I had to not only face him, but the bullying of others because he bragged about it. . . . I want you to know, it’s okay to have a voice, it’s okay to come out and talk about your war in hell, it’s okay to say I was a victim—male or female. . . .
This student’s eloquent account of what happened to her, and OCR’s ability to assist underline the importance of both Title IX and a robust role for OCR in enforcing laws against sexual harassment and violence in our schools.