Seeking Counsel: Prompt and Equitable

Department of Education proposes new sexual harassment regs

#MeToo, #BelieveSurvivors, and #WhyIDidntReport are just some of the social media hashtags trending since October 2017, when sexual harassment came to the forefront (again) as news media broke allegations of Hollywood mogul Harvey Weinstein’s repeated acts of sexual harassment and sexual assault.

Weinstein wasn’t the first offender nor will he be the last, but today’s social and political climate has kept sexual harassment front and center in all arenas — from entertainment to education. Chances are your school district has experienced its fair share of sexual harassment complaints (and you may have one ongoing right now). What do board members need to know about sexual harassment of students?

WHAT IS SEXUAL HARASSMENT?

Title IX of the Education Amendments of 1972 prohibits sexual harassment of students and applies to educational institutions that receive federal funding. You would think that a law prohibiting sexual harassment would explicitly define what that term means — but it doesn’t. Instead Title IX states, in part, 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.

Neither Title IX nor its implementing regulations currently mention sexual harassment, but courts and federal agencies have interpreted Title IX to prohibit sexual harassment. The U.S. Department of Education’s Office for Civil Rights (OCR) is responsible for enforcing Title IX, and it has issued the following guidelines— informed by U.S. Supreme Court cases— about what constitutes sexual harassment:

  • Sexual harassment is unwelcome conduct of a sexual nature.
  • Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.
  • Title IX’s prohibition against sexual harassment does not extend to legitimate nonsexual touching or other nonsexual conduct (such as a kindergarten teacher consoling a child with a hug, or a student demonstrating a sports maneuver that requires contact with another student).
  • In some circumstances, nonsexual conduct may take on sexual connotations and rise to the level of sexual harassment.
  • A student may be sexually harassed by a school employee, another student, or a non-employee third party.

To remedy the lack of concrete regulatory language about sexual harassment, the Education Department has proposed new Title IX regulations that would define sexual harassment as:

  • A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called quid pro quo harassment); or
  • Unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
  • Sexual assault.

OCR guidance, again based on U.S. Supreme Court cases, states that where the school knows or reasonably should know of an incident of sexual harassment, the school must take steps to understand what occurred and to respond appropriately. This is the case regardless of whether a student files a formal complaint or otherwise asks the school to act.

To coordinate this responsibility, schools must designate at least one employee to act as its Title IX Coordinator. This does not mean that only the Title IX Coordinator is empowered to act. Other employees may be considered “responsible employees” with authority to receive and act upon reports (formal or informal) and they must help aggrieved students connect with the Title IX Coordinator.

So how does a school reasonably know of sexual harassment? It can be in plain sight or well-known to students and staff (i.e., if it happens in hallways, at recess, or via graffiti in public areas). It can be discovered while investigating a different type of misconduct, such as bullying or a physical altercation. Schools may even learn of possible sexual harassment from the community or social media. Basically, if there’s an inkling that something is amiss, schools should investigate further — otherwise they risk violating Title IX because they should have known and failed to act.

The newly proposed Title IX regulations attempt to clarify and limit what triggers a school’s obligation to respond by requiring that the following conditions first be met:

  • The school has actual knowledge of sexual harassment (or allegations). A report of sexual harassment to the Title IX Coordinator or teacher always constitutes actual knowledge.
  • The alleged harassment involves conduct that occurred within the school’s own program or activity.
  • The alleged harassment was perpetrated against a person in the U.S.

Many schools train teachers to report suspected sexual harassment. However, mandating that a teacher’s personal knowledge equals actual knowledge by the school could expand school district liability. The second condition raises questions regarding harassment perpetuated via technology networks, while the third condition would exclude harassment occurring during study abroad programs.

WHAT DOES A RESPONSE INVOLVE?

Since 1975, Title IX regulations have required schools to adopt and publish grievance procedures that provide a “prompt and equitable” process to resolve complaints of sex discrimination, including sexual harassment. What “prompt and equitable” looks like varies greatly from school to school and from case to case. There is no fixed time frame for a “prompt” response, but OCR states that an “equitable” investigation requires a trained investigator to analyze and document evidence, objectively evaluate the credibility of parties and witnesses, and synthesize all evidence to come to a reliable decision.

With its proposed Title IX regulations, the Education Department clarifies that schools must act in two ways:
1) by meaningfully responding to all sexual harassment reports they become aware of; and 2) by investigating and applying certain due process safeguards to all formal sexual harassment complaints.

In the first phase — responding — the proposed regulations aim to ensure that every aggrieved student is taken seriously by encouraging schools to offer students supportive measures that are designed to restore or preserve the student’s access to the school’s education program and activities.

In the second phase—investigating— the proposed regulations aim to ensure every accused perpetrator that his or her responsibility is not predetermined by requiring specific due process measures including, but not limited to, a presumption of innocence, written notice to both parties, and equal opportunities for both parties to present witnesses and evidence.

K-12 schools would have the option to conduct a hearing, but the parties must be allowed to submit written questions to challenge each other’s credibility before the decision-maker makes a determination. Under the proposed regulations, the decision-maker cannot be the same person as the Title IX Coordinator or investigator — effectively prohibiting a single-investigator model.

All of this flux in the Title IX world underscores the necessity for board member involvement in shaping school district sexual harassment policies and procedures and being trained on them once finalized. To voice your opinion, submit comment at www.regulations.gov by Jan. 28, 2019.


Maryam T. Brotine (mbrotine@iasb.com) is assistant general counsel at the Illinois Association of School Boards.

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