Title IX

 

 

 

title ix

Introduction * *

Title IX prohibits discrimination based on sex in federally funded programs and is enforced by the Office for Civil Rights, the same division in the Dept. of Education (ED)responsible for enforcing ADA/504 and Title VI in the schools.

Title IX states 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.   Although on a day to day basis, providing boys and girls with equal opportunities, particularly equal opportunity in sports,  is a major focus of Title IX,  preventing sexual harassment of all t ypes is also an administrative responsibility.  Failure to address that responsibility also can and has been the source of a number of lawsuits seeking damages.   There are plenty of on-line resources regarding the rights of students with respect to sexual discrimination in athletics, e.g., Remedies in Title IX Athletics Cases.

The basic principle here as in other areas of education law is that if a school knows a child is being hurt, the school is supposed to do something.  Sometimes, however, in implementing that simple precept, schools forget that the principle is intended to help children and, in mindlessly upholding the principle, actually hurt children for whom it was intended to protect.  For example

School Drops Sexual Harassment Charge After Six Year Old Kisses Girl  (He had kissed her on the cheek and then again on the hand.  The fact that he was disciplined wasn’t what raised public concern; it was the fact that he had been suspended for “sexually harassing” the little girl.)

Georgia Student Suspended for One Year for Hugging Teacher

Mistaken Hug by Disabled Student Leads to Charge of Sexual Assault  This incident involved a 20 year old autistic student who kissed a woman he thought he knew on the top of her head.   “A kiss is considered an assault.”

School Accused 5 year old of sex harassment  (The five year old pinched a girl’s buttocks in the hallway)

Love note results in 9 year old in trouble for sexual harassment.

love letter

Sexual harassment needs to be addressed.  But clearly school administrators also need to know what is and what is not sexual harassment!

OCR ED

So what is sexual harassment?  OCR defines it as follows:

Sexual harassment is conduct that:

  1. is sexual in nature;
  2. is unwelcome; and
  3. denies or limits a student’s ability to participate in or benefit from a school’s education program.

Sexual harassment can take different forms depending on the harasser and the nature of the harassment. The conduct can be carried out by school employees, other students, and non-employee third parties, such as a visiting speaker. Both male and female students can be victims of sexual harassment, and the harasser and the victim can be of the same sex.

The conduct can occur in any school program or activity and can take place in school facilities, on a school bus, or at other off-campus locations, such as a school-sponsored field trip or a training program at another location. The conduct can be verbal, nonverbal, or physical.

The judgment and common sense of teachers and school administrators are very important elements in determining whether sexual harassment has occurred and in determining an appropriate response, especially when dealing with young children.

What are some examples of sexual conduct?

Examples of sexual conduct include:

  • making sexual propositions or pressuring students for sexual favors;
  • touching of a sexual nature;
  • writing graffiti of a sexual nature;
  • displaying or distributing sexually explicit drawings, pictures, or written materials;
  • performing sexual gestures or touching oneself sexually in front of others;
  • telling sexual or dirty jokes;
  • spreading sexual rumors or rating other students as to sexual activity or performance; or
  • circulating or showing e-mails or Web sites of a sexual nature.

So how should an administrator distinguish between innocent behavior and sexual harassment?  OCR offers the following guidance:

School personnel should consider the age and maturity of students in responding to allegations of sexual harassment. When determining whether a young child has committed sexual harassment, it is important for teachers and school administrators to use good judgment and common sense.

Example 1: On one occasion, a first-grade student kisses another first-grade student on the cheek in the playground. This behavior does not constitute sexual harassment.

 

Example 2: On numerous occasions over a period of several months, a fifth-grade student inappropriately touches another fifth-grade student and makes overtly sexual comments and gestures to that student. The conduct is unwelcome and results in the victim’s grades falling because he or she is unable to concentrate on studying. This behavior constitutes sexual harassment.

The source of the quotation above is a ten page summary of schools’ Title IX responsibilities entitled Sexual Harassment:  It’s Not Academic .    The pamphlet is recommended for distribution.

The following federal regulations carry  the full force of the law:  Non Discrimination on the Basis of Sex 34 CFR106

Title IX Coordinators and those with a specific interest in gender equality should also be aware of the following links to OCR materials:

OCR Documents on Title IX:
OCR Documents from the Reading Room

OCR Publications on Title IX:
OCR Publications on Title IX from the Reading Room

OCR issued a FAQ on that topic  last updated in 2014 at:
OCR FAQ on Sexual Harassment

While the focus on this page will be on school responsibilities with respect to sexual harassment issues, some of the case law regarding other aspects of Title IX is clearly relevant, e.g., the Supreme Court case of Franklin v. Gwinnet Public Schools, Supreme Court, 1991.

Supreme_Court_US_2010

Supreme Court Decisions * *

Gwinnet Public Schools, Supreme Court 1992
Key Words:  Title IX, damages, athletics
Published: Yes
Decided for:  The plaintiffs

In Franklin, the Supreme Court ruled that students who are subjected to sexual harassment in public schools may sue their boards for monetary damages under Title IX of the Education Amendments of 1972. Franklin is important because it was the first case wherein the Supreme Court upheld an award of monetary damages under Title IX.

Six years later, a Title IX damages case was again before the Supreme Court. in this instance, however, regarding a teacher who had sexually harassed a student.

Gebser v. Lago Independent School District, Supreme Court, 1998 
Key Words:  Title IX, sexual harassment, damages
Published:  Yes
Decided for:  The school system

The court’s ruling in a nutshell was

Absent further direction from Congress, the implied damages remedy should be fashioned along the same lines as the express remedial scheme. Thus, a damages remedy will not lie unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination and fails adequately to respond. Moreover, the response must amount to deliberate indifference to discrimination, in line with the premise of the statute’s administrative enforcement scheme of an official decision by the recipient not to remedy the violation. Applying the framework to this case is fairly straightforward, as petitioners do not contend they can prevail under an actual notice standard. Lago Vista’s alleged failure to comply with federal regulations requiring it to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims does not establish the requisite actual notice and deliberate indifference, and the failure to promulgate a grievance procedure does not itself constitute discrimination in violation of Title IX. Pp. 14—16.

Observe, however, that the school’s defense, successful, was that the administration did not know of the illicit relationship.  Where school administrations have been informed, the outcome may be and has been very different.

This case was followed by Davis v. Monroe County Board of Education, Supreme Court, 1999
Key words:   Title IX, sexual harassment
Published:  Yes
Decided for:  the plaintiff

In the case above, teacher on student harassment gave rise to a right to seek damages, but only if the administration was aware and did nothing.  In this case, the Supreme Court, in a split decision, held that peer on peer harassment  could also give rise to a lawsuit seeking damages against the school board under circumstances similar to Gebser and remanded the case back  for further adjudication.   The standard set forth is best explained in the words of the court.

A single instance of severe one-on-one peer harassment could, in theory, be said to have such a systemic effect, but it is unlikely that Congress would have thought so. The fact that it was a teacher who engaged in harassment inFranklin and Gebser is relevant. Peer harassment is less likely to satisfy the requirements that the misconduct breach Title IX’s guarantee of equal access to educational benefits and have a systemic effect on a program or activity. .

    2.  Applying this standard to the facts at issue, the Eleventh Circuit erred in dismissing petitioner’s complaint. This Court cannot say beyond doubt that she can prove no set of facts that would entitle her to relief. She alleges that LaShonda was the victim of repeated acts of harassment by G. F. over a 5-month period, and allegations support the conclusion that his misconduct was severe, pervasive, and objectively offensive. Moreover, the complaint alleges that multiple victims of G. F.’s misconduct sought an audience with the school principal and that the harassment had a concrete, negative effect on LaShonda’s ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort either to investigate or to put an end to the harassment.

A more recent case can be found in Fitzgerald v. Barnstable Schools.

Fitzgerald v. Barnstable Schools, Supreme Court, January 21, 2009
Key Words;   Title IX, sexual harassment, damages, Section 1983
Published; Yes
Decided for:  The plaintiff

What was being argued here was whether or not a plaintiff alleging an administrator’s violations of a a person’s rights under Title IX could also be brought under Section 1983.  The case was significant because individual damages could be sought under Section 1983 of the Civil Rights (in contrast to lawsuits brought under Section 504, wherein damages could only be sought from the school system itself.)

In sum, the court held ” Title IX does not preclude a §1983 action alleging unconstitutional gender discrimination in schools..”  It remanded for further adjudication.

lower courts

Lower Court Sexual Harassment Case * *

A.B. v. Rhinebeck, District Court, 2006
Key Words:  Title IX, sexual harassment, damages, consent decree
Published:  Yes
Decided for: the plaintiffs

This case involved four girls who sued their school system alleging that a principal had created a hostile environment by sexually harassing them.   This last, actually just entering a consent decree agreed to by the girls and the school system, was just the last in a long line of court hearings.   The case was finally closed in 2009, when the parties informed the court that all the terms of the agreement had been implemented.

Financially, the agreement required the district to pay out $152,500 to the girls, and $96,500 to their attorney.  Of greater significance to the larger community, the consent required the district to hire an expert regarding sexual harassment training and prevention to assist in developing the comprehensive plan, to evaluate the district’s sexual harassment policies, to conduct a school climate assessment, and to develop a mandatory training program. The consent decree also requires the district to educate school board members and employees regarding how to respond to sexual harassment complaints.

Ludlow v. Northwestern University,District Court, August 28, 2015.
Key Words:  Title IX, Sexual harassment
Published:  Yes
Decided for:  The university

Although not a public school case, the facts of this case were so unusual, they seemed worth adding to this page.  A girl had accused Professor Ludlow of sexual harassment, and she sued the university for violation of their her under Title IX.  The university, however, showed that in response to her complaint they had investigated the case thoroughly and had addressed the issue, so the court ruled in favor of the university and dismissed the girl’s lawsuit.  (Those steps included denying him a pay raise for a year and ordering him to avoid social situations with students,  but he retained is position and was not terminated.  The rising Senior found that insufficient.)  The case wasn’t clear-cut, regardless.  The professor and the female student had been engaged in a romantic relationship.  She alleged he had sex with her one night when she didn’t want to have sex, but the evidence showed that she sent him loving messages subsequent to that event and that she continued to engage in a sexual relationship with him.  Her advocate suggested that they were in an unequal relationship, despite the fact that the professor had no supervisory responsibility (she was not one of his students.)  Why unequal?  Because he bought her expensive dinners and through the exercise of his “charm.”

This is the case, however, where Professor Ludlow turned around and also sued the university, alleging HIS Title IX rights had been violated.  The Title IX complaint was dismissed with prejudice because the professor neglected to suggest that the alleged discrimination had anything to do with his sex.  In other words, even though he had made the case that he was treated differently than the female accusing him of sexual misconduct, he did not make the case that if the accuser was a male and he was a she that “she” would have been treated any differently.  The professor had also made some claims under state law; the judge in this case declined to exercise jurisdiction and dismissed those claims without prejudice, as the outcome of his state based claims was not self evident.

This lawsuit had already had a very long history.

fat lady

It’s not over till the fat lady sings.  Subsequent to the decision above, the local newspaper reported that the professor resigned last fall (2015) after the university had started to take steps to dismiss him, and that the student still had an appeal pending with the Seventh Circuit   . . .

updates

Title IX Update * *

In April, 2015, the Office for Civil Rights published a package of three documents on Title IX.

The first was a letter to administrators reminding them of their obligation to appoint a Title IX Coordinator to be responsible for Title IX enforcement.

colleague-201504-title-ix-coordinators

Also in the package was a “thank  you” letter to those who have been appointed Title IX Coordinators.

OCR Cover Letter to Title IX Coordinators

And lastly, a Resource Guide for Title IX Coordinators was provided.

Title IX Resource Guide

NASP Position Statement * *

NASP has issued several position papers specifically addressing  the role of school psychologists in helping their schools address the needs of gay, lesbian, and transgender youths.

Position Statement LGBTQ_Youth

Advice to Parents and a Model Complaint * *

Findlaw has posted a fairly brief discussion of the Title IX rights as they apply to sexual harassment, and in a relatively brief article on  Sexual Harassment at School  included a model letter for parents to use a guide for filing a written complaint.  It includes the necessary elements outlined by OCR in the publication above and is reproduced here for your convenience:

Sample Letter * *

Dear Principal Smith,

My daughter, Sierra, is in Mr. Taylor’s 5th grade class and has expressed to me that she is suffering from sexual harassment at school. Apparently, another student in her class has been harassing her with sexually inappropriate conduct. I would rather wait and tell you his name in private. The specific acts of harassment he has engaged in include:

  • Threatening to rape her
  • Chasing her down the hallways
  • Spying on her in the bathroom
  • Sending her sexually obscene notes
  • Telling her friends that he wants to “prong” her

This extremely inappropriate conduct began in September of this year. Sierra has repeatedly insisted that the boy stop and has even, numerous times, told Mr. Taylor, who does nothing. The student even sits next to Sierra in class, and Mr. Taylor refuses to allow Sierra to move seats.

This sexual harassment at school has seriously affected my daughter’s ability to perform at school. She never wants to go to school, or participate in sports or music. As you may know, she has been on the honor roll consistently since the first grade. Her grades have slipped to a “C” average. Most upsetting, she has fallen into a sad and moody state. I am deeply concerned for her.

I am leaving this note to notify you that I would like to meet with you at your earliest convenience. I would like to discuss with you what disciplinary action you plan to take to alleviate the harassment. I can be reached on my cell phone at 555-5252.

Sincerely,

Concerned Parent

OCR and Case Resolutions * *

OCR is responsible for enforcing Title IX in the schools.  Unlike its sister agency, FPCO, OCR is well staffed and has had no problem wielding its enforcement powers.

It has published all of its Resolution Letters and Resolution Agreements on its website.   There are approximately as of February 201625 letters regarding Title IX and sexual harassment.  A few of them are summarized below.    (A search engine allowing access to all of OCR’s resolution letters and agreements is found on their Search Resolutions and Agreement page.)   OCR allows districts to enter into a voluntary Resolution Agreement with complainants before its investigation is completed, and many school districts take advantage of that option rather than be subject to an on-going, time consuming, and potentially costly OCR investigation.

Clarenceville School District, Letter to Koopnick, Esq.  July  11, 2014.  In this case,  “The complaint alleged that the District discriminated against a female student (the Student) on the basis of her sex. Specifically, the complaint alleged that, from March 2012 through the 2012-2013 school year, the Student was repeatedly harassed by her peers at school sexually and in retaliation for her having reported previous alleged sexual harassment from the fall of 2011, and, despite the Student’s complaints to District staff, the District failed to respond.”   This was another instance where the school opted for a voluntary resolution.  “Under the terms of the enclosed voluntary agreement, the District will:  Send the Student’s parent a letter containing an offer, should the Student choose to return to the District, to provide academic support, including tutoring, to address academic deficits and a District point of contact to whom the Student can report harassment or bullying.  Revise its policies and procedures related to sex discrimination, including sexual harassment, to fully comply with Title IX.  Adopt, implement, and publicize the revised policies and procedures.  Train all District staff and all middle-school and high-school students on the revised policies and procedures.  Conduct periodic climate assessments of the District middle school and high school to assess the effectiveness of the steps taken pursuant to the agreement. ”