The Title IX Spotlight Shifts from the Campus to the Schoolhouse – by R. Shep Melnick

The U.S. Department of Education headquarters in Washington, D.C.

Already overwhelmed by the Covid-19 challenge, public elementary and secondary schools have yet another problem to address: sexual harassment. In February, the U.S. Department of Education announced a new enforcement initiative designed 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 primarily 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 to other districts employees who have engaged in sexual misconduct with students; an investigation of Chicago schools that uncovered pervasive sexual misconduct by teachers and students; and evidence from 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 during the 2015–16 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 first full administrative rulemaking process the department has ever conducted on the subject and its most substantial effort to explain the differences between the rules that apply to K–12 schools and those that apply to colleges and universities. The department’s explanation of its 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 what school districts must do to comply with federal law.

Evolving Disputes

Title IX says nothing about sexual harassment or sexual assault; it simply prohibits educational institutions that receive federal funds from discriminating on the basis of sex. In the 1990s, however, federal courts began to hold school districts responsible for sex-based harassment serious enough to deny a student equal access to education. In 1992, the Supreme Court ruled that a school district could be sued for monetary damages for failing to prevent serious, ongoing abuse of a student by a teacher. Then, in 1998 and 1999, the high court issued two additional decisions that established the legal framework for evaluating schools’ liability for sexual misconduct: a school is liable under Title IX only if it has “actual notice” of harassment “that is so severe, persistent, and objectively offensive that 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 than the standard OCR had announced a few years earlier in a guidance document. On the day before the inauguration of George W. Bush, the outgoing Clinton administration explained that it would not follow the court’s lead. The court’s standard, it insisted, applied only to suits for monetary damages, not to the rules 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 by the Bush administration.

In 2010, the Obama administration began a multiagency campaign to address a problem the president claimed “threatens our families” and “tears at the fabric of our communities”:  sexual violence on college campuses. The key element of that effort was a 2011 “Dear Colleague” letter authored by the head of OCR. It spelled out in detail what all schools that receive federal funds—not just colleges—must do to comply with Title IX. The new guidelines went well beyond those previously announced in specifying the procedures schools must follow in disciplinary proceedings and the remedial steps they must take both for individual victims and for “the broader student population.” The letter required schools to apply the “preponderance of the evidence” standard (sometimes described as “50 percent plus a feather”) when adjudicating complaints of misconduct rather than 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 by the school’s Title IX coordinator authority not only to investigate the alleged misconduct, but also to determine guilt or innocence—with limited opportunity for appeal. The letter also established a broad definition of sexual harassment, one that swept in many forms of speech as well as conduct.

OCR then conducted hundreds of lengthy investigations of colleges and universities, most 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 consequence of the campus “rape culture.” Assistant Secretary of Education for Civil Rights Russlynn Ali explained that OCR’s “new paradigm” for sexual-harassment regulation was designed to “change the culture on the college campuses, and that is hugely important if we are 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 was a foregone conclusion. Less clear was what would replace them. Proclaiming that “the era of rule by letters” was over, in the fall of 2017, Secretary DeVos promised to use the rulemaking procedure mandated by the Administrative Procedure Act to establish new rules rather than announce them unilaterally through “Dear Colleague” letters. It took the department over two years to complete this rulemaking process. Its initial proposal, released in November 2018, received over 124,000 comments. The department responded to most of those comments in its May 2020 announcement.

The New Title IX Regulations

The central feature of the Trump administration’s approach is a return 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 effects of “rape culture” on the entire student population. Now the focus was on schools’ responsibility to address particular cases of serious sexual misconduct. At the same time, the new rules go far beyond the court’s bare-bones framework to explain what constitutes harassment, what schools must do to identify and adjudicate cases of misconduct, and the remedies they must provide to victims of such misconduct.

In its 2018 proposal, the department also asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary level, if there are additional parts 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 aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Although judges and administrators had previously acknowledged important differences between K–12 students and those in postsecondary institutions, this was the first time regulators had addressed the issue directly.

The most controversial element 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 on the implications of the new rules for colleges, paying little attention to the fact that this requirement does not apply to elementary and secondary schools. This was one of the two major differences between the rules that now apply to 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 has long been the most common—and most serious—criticism of the Supreme Court’s framework: If schools are responsible for addressing sexual harassment only if they have “actual knowledge” of misconduct, what is to prevent them from “sticking their head in the sand” (as one law review article put it) to avoid liability? What must students and staff do to make the school aware of possible misconduct? The new rules require colleges and universities to make it easy for those subject to harassment—and anyone else who has witnessed or heard about such harassment—to file a report with the institution’s Title IX coordinator or with any other official “who has authority to institute corrective measures.”

Once the institution has received such reports, staff from its Title IX office must meet with the “complainants” (the term used to describe the targets of the alleged misconduct), offer them various “supportive measures,” explain to them how to initiate a full investigation by filing a formal complaint, and offer them informal resolution options. The department emphasized that college students are mature enough to decide 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 respond 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 launch a full investigation without the consent of the complainant, it will usually be difficult to prove misconduct without testimony from a key witness. Postsecondary institutions can require teachers and other employees to report harassment they witness or hear about, but the regulations do not require them to do so.

K–12 schools, in contrast, must consider teachers and all other school employees “mandatory reporters.” That means that when any employee learns of possible misconduct they must report it to their school district’s Title IX coordinator, and the district must investigate the matter. This reflects a change from the department’s 2018 proposal, which had included only teachers as “mandatory reporters.” The department offered this explanation of why it extended this responsibility to all employees:

The Department is persuaded by commenters who asserted that students in elementary and secondary schools often talk about sexual harassment experiences with someone other than their teacher, and that it is unreasonable to expect young students to differentiate among employees for the purpose of which employees’ knowledge triggers the school’s response obligations and which 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 in 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, one of the most important steps schools must take to comply with Title IX is to make it clear to all employees that they must without delay report alleged misconduct to 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 serious misconduct go unreported and remain unaddressed.

Under the new Title IX rules, the grievance procedures established by K–12 “may, but need not, provide for a hearing.” Nonetheless, schools must provide to each party—and their parents—a description of the allegation and a copy of the investigative report on the incident. They must also “afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.” Some who commented on 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 in an unwarranted manner.” But the department held that “written submission of questions prior to adjudication” constitutes an essential element of due process and “a procedure that benefits the truth-seeking purpose” of the grievance procedure.

The final rules also require that each party have an equal opportunity to present evidence and appeal the initial decision. The alleged perpetrator must be assumed innocent until proven guilty: the burden rests on the school to show that he or she has engaged in inappropriate conduct. The regulations warn against gender bias and sex stereotyping, whether it be of the “boys will be boys” or “girls don’t lie about sexual assault” variety.

The new rules also seek to clarify whether and when schools are responsible for misconduct that takes place outside school grounds. Title IX covers all the “educational programs or activities” offered by an institution receiving federal funds. For elementary and secondary schools this includes “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs.” Schools thus have responsibility for addressing conduct that takes place on school buses, on field trips, or at athletic events. But what about students walking home from school? Internet messages or videos sent from home computers but read at school? On these difficult matters the rules are silent. Complicating these boundary issues is the fact that some forms of harassment are covered by state criminal law and thus subject to police investigation. Consequently, public schools need to reach agreements with local police on how they will divide surveillance duties, communicate with each other, and cooperate with investigations.

As school officials well know, federal civil-rights regulations place conflicting pressures on public schools. They are expected to protect their students not just from sexual harassment, but from many other forms of bullying. At the same time, they must respect their students’ basic due-process rights—including those spelled out in the new regulations. During 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 of the “school-to-prison pipeline.” Although the Trump administration withdrew this guidance, many schools have placed stricter limits on out-of-school punishments. But if an institution allows a student found guilty of sexual misconduct to remain in school, it could expose many other students to further sexual harassment—and the school itself to liability.

Enforcement: Investigations and Lawsuits

The main reason schools should establish clear, well-publicized conduct rules and reporting procedures, and take prompt action to investigate allegations, punish transgressors, and provide remedies to victims, is to reduce risk to students. But school officials also need to 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 that will seldom happen. Over the past half-century, the number of times the federal government has terminated funding for failure to comply with Title IX is exactly zero. Instead, schools need to be concerned about three other forms of sanctions: private suits for damages brought by the victims of misconduct; investigations by OCR; and investigations by state and local law enforcement.

The Supreme Court’s 1992 decision in Franklin v. Gwinnett County Public Schools held that a student subjected to serious and repeated abuse by a teacher can seek monetary damages from the school district if it can be shown that school officials knew about the abuse and did nothing to stop it. The court’s later Title IX decisions established somewhat more clearly the liability rules that apply in these cases, and the new Department of Education rules spell out in much greater detail how 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 the regulations will substantially increase this risk. Since parts of the new rules are specifically designed for K–12 schools, judges will be more inclined to punish those who ignore them.

Despite all the attention devoted to sexual harassment during the Obama years, until recently, OCR devoted few resources to investigating complaints in elementary and secondary schools. Starting in 2014, OCR turned every complaint lodged against a college or university into a full-scale investigation of the entire institution. Previously, the agency had publicized investigations only at their conclusion; now, it would announce with great fanfare which schools it planned to investigate. These changes were key elements of an enforcement strategy that proved remarkably effective in convincing schools to change their policies. Since OCR could not rely on the courts to enforce the demands in its 2011 “Dear Colleague” letter and since it would never pull the trigger to terminate federal funds, it in effect made the investigative process the punishment. For colleges, these investigations—some of which lasted for years—proved costly not just financially, but in terms of their reputation. Almost all eventually agreed to OCR’s demands.

These investigations were costly for OCR, as well. With fewer than 600 staff members and about 10,000 individual complaints to investigate each year, the intense focus on sexual harassment on college campuses left OCR with few resources to investigate anything else. In 2017, the Trump administration reverted to OCR’s previous policy of turning investigations of individual 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 2015 and 2016 but began its systemwide investigation only after the Chicago Tribune published an expose on pervasive and serious misconduct by students and employees in many Chicago schools. OCR’s extensive investigation revealed that, over a four-year period, Chicago schools had received 2,800 student-on-student complaints and 280 teacher-on-student complaints. Yet, for two decades—from 1999 to 2018—the district did not even have a Title IX coordinator, the first and easiest step a district must take to comply with federal rules. OCR’s investigation culminated in a 40-page “resolution letter” and an 11-page compliance agreement with the school system. The latter included not only detailed guidelines on the structure of its Title IX office and procedures for handling of complaints, but also 13 separate reporting requirements.

The 2019 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, on the staircase and in hallways, while lining up at the water fountain, during recess on the playground in front of their peers, in the school parking lot, on school buses while traveling for school-sponsored field trips, to extra-curricular activities, and to/from their homes to school.

OCR observed that many of the complaints described students exposing their genitals at school to and in front of peers—in the classroom, on the playground, in 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 such as “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 in the school without the student’s consent. In other cases, students who engaged in consensual activities were filmed by their peers engaging in the conduct without their knowledge and consent, and fellow students then widely shared the images among the student’s peers who discussed, viewed, and shared the images during the school day. In many 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 address these problems when they were called to their attention by students and 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 notice that the federal spotlight now shines on them. Complying with Title IX regulation has become more important than ever.

Because most elementary and secondary school students are minors, misconduct in K–12 schools is more likely to violate state criminal law than the type of misconduct common on college campuses. One implication of this is that private schools not subject to Title IX (because they receive no federal funding) must still recognize their responsibilities under state law. In recent years, some of the worst abuses have been discovered at private boarding schools. For example, an investigation of the prestigious St. Paul’s School in Concord, New Hampshire, by the New Hampshire Attorney General uncovered many instances 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 tasked with reporting at least biannually to the Attorney General’s Office regarding St. Paul’s School’s compliance with all of the terms of the Agreement.” Private schools, too, would be wise to comply with Title IX rules to avoid liability under state tort law.

Coming Full Circle

When federal administrators and judges first used Title IX to address the problem of sexual harassment, their focus was on elementary and secondary schools. Starting in 2010, the emphasis shifted to college campuses. To its credit, the Department of Education has now, for the first time, explained how Title IX applies in these much different contexts. As the department steps up its investigation of K–12 schools, the new rules on due process and mandatory reporting become particularly important.

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

What we do know is that young women who do not attend college are more likely to be the victims of sexual assault than those who do. As Professor Callie Marie Rennison of the University of Colorado has pointed out, “while people have been bombarded with the notion that universities and colleges are hotbeds of sexual violence,” the rate of sexual victimization of women without a high-school education is “more than 400 percent greater than those with a bachelor’s degree or more.” Or, to put it in another way, female students attending Chicago public schools are much more likely to face sexual harassment that seriously limits their access to education than those attending Yale, Berkeley, or even Michigan State. This does not mean we should do less to address sexual misconduct at the college level, but it does suggest that federal regulators are right to pay more attention to the problem in some of our largest school systems. Let’s hope that the new rules specifically designed for elementary and secondary schools will aid that effort.

R. Shep Melnick is Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).

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