A Typical Case
In June 2015, a school district in the central part of the United States settled for $600,000 a federal lawsuit that had been filed by a former student in one of the district’s schools who asserted that the district had violated its duties under Title IX when it failed to appropriately respond to allegations that she had been raped on campus. The girl, identified in court records as Jane Doe because she was a 15-year-old minor at the time of the 2010 incident, was allegedly dragged into a band practice room and sexually assaulted by a prominent basketball player at the school. Her Title IX complaint to the Department of Education’s Office for Civil Rights (OCR) and her ensuing lawsuit asserted that after she and her parents reported the assault, the school failed to conduct a timely investigation and delayed taking action against the perpetrator, supposedly to keep the player eligible for the basketball playoffs. The school eventually did suspend him from the team and levied a five-day suspension from school to be imposed at the beginning of the following academic year, but only after another female student reported that during the investigative delay, she had been sexually assaulted by the same student-athlete.
Three months before the settlement, in March 2015, a federal judge ruled that the district had failed to develop and implement a Title IX-compliant policy for reporting and investigating incidents of sexual violence in its schools. Separately, in an administrative ruling, the OCR found that the district had failed to fulfill its obligations under Title IX to have in place adequate reporting and investigatory procedures to protect students. In addition to settling the lawsuit, the school district responded to these rulings by implementing a thorough anti-sexual-violence education program and instituting a rigorous protocol for handling reports of misconduct,
including extensive training for school personnel for reacting promptly and effectively to incidents of peer sexual harassment and assault.
This school’s situation was but one of many sexual violence incidents at educational institutions that have occurred in recent years. As of the beginning of the 2017-18 academic year, the OCR’s Civil Rights Data Collection system (CRDC - https://ocrdata.ed.gov) reveals that 355 Title IX-based sexual violence administrative complaints against 248 universities are currently being investigated by the agency and 162 such complaints are pending against 141 K-12 school districts. The challenge for districts attempting to proactively draft and implement sexual violence policies is ensuring that their measures satisfy all applicable legal mandates regarding the issue, and the most useful resource to assist districts in addressing that challenge is a guidance issued by a White House Task Force on the topic.
The White House Task Force
In 2009, through the CRDC system, the OCR began tracking sexual violence statistics as a distinct sub-category of the data on sexual harassment it already was monitoring. In April of 2011, the OCR issued a guidance which specified that universities and school districts should institute proactive strategies to prevent sexual violence on campus and conduct effective investigations of incidents of such misconduct. The guidance also directed colleges and districts to train their staff regarding Title IX and use a preponderance-of-the-evidence standard as the burden of proof in investigations rather than the beyond-a-reasonable-doubt standard applied in criminal cases (www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html).
In January 2014, based on dramatic increases in reported instances of sexual violence on university campuses, President Obama created the White House Task Force on Protecting Students from Sexual Assault, and in April 2014, the Task Force issued a report titled Not Alone (www.justice.gov/ovw/page/file/905942/download), which set forth recommendations focused on prevention and response in college settings. In September 2016, the Task Force issued a separate report containing prevention and response strategies designed specifically for K-12 schools (www.justice.gov/ovw/file/900716/download). In September 2017, Education
Secretary Betsy DeVos announced that she would open the public comment period, typically 180 days, an administrative step legally required before a federal agency issues new guidelines on a topic, as a possible precursor to changing the burden of proof that educational institutions use in sexual violence grievance procedures. However, most of the recommendations issued by the previous administration’s Task Force regarding procedures and protocols for sexual violence prevention and response would be unaffected by such a change.
Task Force Recommendations for K-12 Sexual Misconduct Policies
The following is a summary of the suggestions set forth in the Task Force K-12 policy guidance issued on September 19, 2016. The considerations outlined below were intended by the Task Force to provide structure to the efforts of school districts when developing and implementing policies designed to prevent sexual violence and to properly respond to incidents of sexual misconduct. It is important to note that these recommendations do not create new legal obligations; rather they are intended by the Task Force to serve as a review of the already existing duties of schools to safeguard students. And because of space limitations in this article, the following is a highly condensed version of the Task Force’s recommendations. Before beginning the policy development process, school leaders should consult the full guidance at www.justice.gov/ovw/file/900716/download.
Why Should a District Have a Separate Sexual Misconduct Policy?
A separate sexual misconduct policy can provide a single, easily accessible, and user-friendly document for students, parents, employees and others affected by sexual misconduct to obtain information regarding a district’s rules and procedures. These policies are most effective when they explicitly cover every school and extracurricular activity setting within the district, as well as venues when students are involved in a school-sponsored or school-recognized activity off school grounds like a field trip or athletic event. The Task Force recognizes that many districts have a comprehensive policy that covers harassment and bullying or discrimination on multiple bases (e.g., race, sex, disability). Districts that utilize such a policy should still consider developing a separate sexual misconduct policy or including a separate section dedicated to sexual misconduct to address the unique issues that arise in sexual misconduct cases.
Policy Development - Who Should Participate?
Is the policy clear and understandable to its target audience?
What other documents should be considered during development of the policy?
What should happen when the policy is complete?
What Should a District Consider Including in Its Sexual Misconduct Policy?
a. Immediate intervention by professionals with expertise in crisis situation response, including school psychologists, counselors, nurses or social workers as well as local mental health counselors or rape crisis centers.
b. Ongoing assistance: Identify counseling, advocacy, health, mental health and other support for victims of sexual misconduct and identify those who can provide ongoing support during the district’s investigatory and/or disciplinary process.
c. Ensure compliance with any state or local mandatory reporting obligations.
d. Develop strategies for academic accommodations for the victim, including any necessary alterations to class or bus schedules for either the victim or the alleged perpetrator, changing locker locations, changing cafeteria or recess schedules, allowing the victim to withdraw from/retake a class without penalty, and providing an escort to ensure that the victim can move safely between classes or other activities.
5. Provide definitions of all terms related to conduct covered by the policy.
6. Establish reporting policies and procedures.
7. Set forth investigatory and grievance resolution processes.
a. Identify the Title IX Coordinator(s) and explain roles and responsibilities.
b. Identify the trained and impartial individual(s) who will conduct the investigation and decide the outcome of the complaint.
c. Specify reasonably prompt timeframes for the major stages of the process, including the timeframe for conducting the investigation and issuing the notice of the outcome, as well as the process for extending the
d. Explain the processes for collecting and preserving evidence.
e. Provide the parties with equitable rights during the investigative process, including an equal opportunity for both parties to present witnesses and other evidence.
f. Explain the standard (preponderance of the evidence) that will be used in any Title IX fact-finding investigations and related proceedings and how that burden of proof differs from that used by the government in
criminal prosecutions (beyond a reasonable doubt).
g. Explain the right to proceed with a school district investigation while a criminal or child protection investigation is proceeding.
8. Develop prevention and education strategies, including the methodologies to be used for in-servicing school administrators and employees and for educating students and parents.
a. Outline how employees will be trained regarding their obligations under the district’s sexual misconduct policy.
b. Explain how the Title IX coordinator, school resource officers, responsible employees, and anyone else involved in responding to, investigating or adjudicating sexual misconduct will receive adequate training.
10. Provide additional resources such as Safe Place to Learn: Prevent, Intercede, and Respond to Sexual Harassment of K-12 Students, a program that is designed to assist three primary staff groups: administrative leadership, all building staff, and staff responsible for interceding and responding to students. The program resource package contains guidance, e-learning training modules and resources to support efforts to prevent sexual harassment and violence, as well as bullying, and provide safe, supportive learning environments for all students. It is available fulltext at (https://safesupportivelearning.ed.gov/safe-placeto-learn-k12).
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.