Dear Legal Mailbag:

Now that students are back in our schools, we are dealing with student discipline again for the first time in a long time. Yesterday, a girl in our middle school came to the office to report that a male student has been harassing her. She explained that he has been texting her and asking her to hang out. She said that she did her best to ignore his texts, but then his behavior escalated. Tearfully, she claimed that the male student has patted her on the butt three different times in the hallway.

I was outraged by this poor girl’s story, and I didn’t hesitate to take action. I called the male student in and read him the riot act. How would you feel, I asked him, if some dimwit were patting his sister’s butt? He professed his innocence, and I pretended to listen. When he was finished, I asked him rhetorically if he has ever heard of sexual harassment, and I suspended him on the spot.

Well, apparently his mother is some sort of college administrator, and she just called to tell me that I violated her son’s rights under the “new Title IX regulations.” What is she talking about? I heard about a problem, and I took care of it, right?

Swift Justice
Dear Swift:

You did indeed take care of a problem, but you created another, because your rush to judgment on a claim of sexual harassment violated new federal regulations that govern complaints subject to Title IX, including sexual harassment complaints.

On August 14, 2020, when we were all preoccupied with reopening schools in the middle of a pandemic, comprehensive revisions to the Title IX regulations adopted by the United States Department of Education became effective. These regulations fundamentally change how school districts must respond to complaints of sexual harassment. It is not surprising that the college administrator parent would be aware of these new regulations; they impose even greater requirements on colleges and universities. However, these new regulations apply to our K-12 world as well.

“Sexual harassment” is now defined as including quid pro quo harassment, sexual assault, domestic violence, dating violence, stalking, or “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” Moreover, the new regulations limit what will constitute an actionable sexual harassment complaint to conduct that occurs at school or at a school-sponsored activity (as opposed to, e.g., at a party over the weekend).

School officials must now promptly respond to such complaints in accordance with the new regulations whenever they have “actual knowledge” of a complaint of sexual harassment. For the K-12 public schools, “actual knowledge” is imputed to the school district if any school employee receives such a complaint. Moreover, then the district must respond in a manner that is not “deliberately indifferent,” which the regulations define as a response that is not “clearly unreasonable in light of the known circumstances.”

Here, you went wrong in several ways. You should have referred the matter to the district’s Title IX coordinator, who has affirmative obligations under the new regulations. These obligations do not automatically require the filing of a sexual harassment complaint. However, the district’s Title IX coordinator must reach out to the “complainant,” who is defined as the potential victim of sexual harassment, to offer supportive measures and to inform her or him of the right to file a formal complaint.

If the complainant (or in extreme cases the Title IX coordinator) chooses to file a formal complaint, districts must follow a newly-defined “grievance process” that includes separate phases of investigation, decision-making and appeal, as detailed in the regulations. Key elements of the new regulations include: separating the investigative and decision-making functions, treating the complainant and “respondent” (the alleged perpetrator) equally without bias, adopting a presumption of innocence, and imposing disciplinary consequences only after the grievance process has been completed.

Your disciplining the male student solely on the basis of the female student’s complaint violated the requirements of the new regulations. If the female student or the Title IX coordinator files a sexual harassment complaint, the Title IX coordinator or some other person must investigate the complaint. Moreover, once the investigation is complete, a different school official (the “decision-maker”) must give both alleged victim and alleged perpetrator the opportunity to pose further questions before the decision-maker decides the matter, including whether to impose discipline. By acting here as judge and jury and imposing discipline so quickly, you jumped the gun.

Finally, the female student’s allegations were serious, and when there is a safety concern, the new regulations do permit exclusion: “(c) Emergency removal. Nothing in this part precludes a recipient from removing a respondent from the recipient’s education program or activity on an emergency basis, provided that the recipient undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.” 34 C.F.R. § 106.44(c). Legal Mailbag suggests that you confer with the district’s Title IX Coordinator in such cases. We all have a lot to learn about these new requirements!

Originally appeared in the CAS Weekly Newsletter.