Guest Columnist: Sarah E. Gleason, Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I am a middle school principal, and I am used to dealing with the hormones of preteens and young teens. Recently, a female student complained to me that a male student keeps touching her butt and making inappropriate comments to her. Based on the female student’s report and after an informal discussion with the male student, I disciplined him. Now, the male student’s family is complaining that he was wrongfully disciplined.
I was talking to the guidance counselor about the family’s claims, and she said they are right and that I cannot impose any discipline for sexual harassment until I have done a full investigation. This seemed crazy to me because a full investigation could take a long time and this behavior is typical middle school behavior that I need to address in the moment.
Is the guidance counselor correct? Did I make a mistake?
Boys Will Be Boys
Dear Boys Will Be Boys:
The guidance counselor may be correct, but we need more information. It all depends on whether the conduct the female student is complaining about meets the definition of “sexual harassment” as defined in Title IX of the Education Amendments of 1972.The way schools must handle sexual harassment changed significantly in August 2020, when the United States Department of Education adopted new final regulations related to Title IX and sexual harassment (codified at 34 C.F.R. Part 106). Among these changes, the new regulations provide a specific definition of “sexual harassment” and include a detailed grievance process for investigating and substantiating formal complaints of sexual harassment. One notable provision in the new regulations is that a school district cannot make a responsibility determination and cannot issue discipline until the end of the grievance process.
With that in mind, and because concerns of sexual harassment underlie the female student’s complaints, you must look at the situation from the Title IX perspective to determine if the grievance process must be followed.
First, you should determine if the female student’s complaint, if proven true, meets the definition of “sexual harassment” under Title IX. Under the new final regulations, there is a specific definition of sexual harassment and if the allegations fall within the definition, the school district must follow the Title IX grievance process. This new definition of sexual harassment is:
Conduct on the basis of sex that satisfies one or more of the following:
- An employee of the school district conditioning the provision of an aid, benefit, or service of the school district on an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo);
- 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 school district’s education programs or activities; or
- “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8) or “stalking” as defined in 34 U.S.C. 12291(a)(30).
In this case, you should consider the conduct under both the second and third prongs. Under the second prong, alleged conduct must be severe, pervasive and objectively offensive in order to be considered sexual harassment under Title IX, which would trigger the grievance process. Your description of the female student’s complaints are vague, but depending on the severity and pervasiveness of the actions, the male student’s conduct may fall within this definition. Under the third prong, one instance of “sexual assault” is considered a per se violation of Title IX. The definition of sexual assault under Title IX includes “fondling” which means “the touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim.” So again, the specifics of the allegations will matter in determining whether the allegations, if proven true, would fall within Title IX sexual harassment.
If the alleged conduct does not meet the definition of “sexual harassment” under Title IX, you are free to address the conduct in accordance with your district’s other policies and procedures. By contrast if the allegations fall within the Title IX definition of sexual harassment, you must follow the Title IX grievance process and can only issue discipline at the conclusion of the process, as described below.
The grievance process can be initiated only upon the signing of a formal complaint by the complainant (defined as the individual who is alleged to be the victim of conduct that could constitute sexual harassment) or the school district’s Title IX coordinator. The student’s verbal report does not trigger the grievance process. Instead, it puts the school district on notice of potential sexual harassment, and the district must respond in a way that is not deliberately indifferent. Upon the female student’s report of the male student touching her butt and making inappropriate comments to her, the Title IX coordinator should meet with the female student and her parents to discuss supportive measures, provide her the Board of Education’s policy regarding Title IX and sexual harassment, and give her the opportunity to file a formal complaint.
If the female student does file a formal complaint, the school district must begin the grievance process, which generally includes an investigation phase, decision-making phase, and very specific procedural requirements. As part of the grievance process, the school district may also offer an informal resolution process to resolve formal complaints if all parties agree to participate in the process and agree to any resolution. Only upon the conclusion of the grievance process, however, can you discipline the male student.
If the female student does not file a complaint, the school district may respect her wishes if doing so is not clearly unreasonable in light of the known circumstances. If it would be clearly unreasonable to not investigate, then the Title IX coordinator must sign a formal complaint to initiate the grievance process.
While the Title IX final regulations are clear that a school district must follow the grievance process before imposing discipline, the final regulations also contemplate emergency situations where the district may need to remove a student from the school environment immediately. The emergency removal provision, 34 C.F.R. § 106.44(c), allows a school district to remove a respondent (defined as the individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment) from the district’s program or activity on an emergency basis, provided that the district undertakes an individualized safety and risk analysis and 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. The school district must also provide the respondent with notice and an opportunity to challenge the decision immediately following the removal.
It is noteworthy that the new Title IX grievance process also contains a specific jurisdictional element. For the Title IX grievance process to apply, the alleged sexual harassment must happen in your “education program or activity.” The scope of the education program or activity includes the school buildings and school campus, the school bus, field trips, school-sponsored activities, athletics, and any location, event, or circumstances over which the school district exercises substantial control. Legal Mailbag assumed that the female student complained of behavior happening at school, but if this behavior was happening outside of school and outside of the school district’s program or activity, then the Title IX grievance process would not apply. In that case, the school may still have an obligation to address the conduct under the school district’s other policies and procedures.
The bottom line is that, if a student’s conduct meets the definition of “sexual harassment” under Title IX, school officials may not discipline the respondent until the conclusion of the Title IX grievance process. But if allegations of misconduct do not meet the definition found in Title IX, then the administration is free to issue discipline in accordance with the school district’s other policies and procedures. Regardless of how the school district responds, the district should prioritize implementing and documenting supporting measures for the student complaining of sexual harassment.
Before signing off, Legal Mailbag shares with you one final thought. The definition of bullying changed in July 2021. Under the new definition, bullying is defined as “an act that is direct or indirect and severe, persistent or pervasive, which (a) causes physical or emotional harm to an individual, (b) places an individual in reasonable fear of physical or emotional harm, or (c) infringes on the rights or opportunities of an individual at school.” Given this broad definition of bullying, school officials should consider the bullying law in reviewing every student Title IX matter. Conduct that meets the definition of sexual harassment may also be bullying conduct that should also be addressed as such.