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  Whiplash In Title IX 
Carolyn Stone, Ed.D.
Sunday November 01, 2020
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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A seismic change came about on Aug. 14, 2020 in Title IX of the Education Amendments of 1972 regulations. Title IX is an important piece of legal muscle school counselors use to support pregnant students; transgender students; and/or students who are victims of bullying, sex-based harassment or dating violence. 

Title IX is the equal access to education law prohibiting discrimination on the basis of sex in any federally funded education program or activity. Title IX was enacted to give female students equality in sports and courses of study, but over time Title IX has become a complex law holding court over each aspect of K–12 educational life. For four decades, judges and the U.S. Department of Education have used Title IX to regulate student rights around pregnancy, dating violence, sexual harassment, transgender and bullying issues. 

Significant changes to transgender rights and sexual harassment occurred in the last three years under the Trump administration. The changes to sexual harassment were revealed in May 2020 and went into effect Aug. 14, 2020, despite the protest of 18 attorneys general and the American Civil Liberties Union, who filed four separate lawsuits. Regardless of these actions, educators have a major role to play in addressing sexual harassment in the schools. Let’s take a look at a hypothetical case to dissect the complexity of the law as it currently applies to school counselors. 
Working Through the Issues
Samantha, a 14-year-old girl, is continually harassed by her classmate Devin, who keeps asking her to meet him for sex, along with descriptions about what he would do to her. She is embarrassed and feared retaliation if she told on him, so she has kept quiet until now. She confides in you, begging you not to tell anyone. Is your primary obligation to protect Samantha’s confidentiality or to inform administration?

When a student is sexually harassed, school counselors are sometimes the first outcry. Students can pursue criminal charges, but in school they also have recourse with Title IX. Even with the new Title IX regulations, school counselors still have a duty to report sexual harassment incidents. To keep the student’s confidentiality is to be “deliberately indifferent.” The new regulations state that “actual knowledge’ happens as soon as any school employee has notice of sexual harassment or allegations of sexual harassment; this information triggers the legal responsibility. 

School counselors have to report rumors, hearsay, a student’s self-report or any report that discover. Actual knowledge was a key element as in the Davis v. Monroe Board of Education Supreme Court case, and this case is used as the basis in components of the new regulations. In Davis, the Supreme Court made clear that school officials must have “actual knowledge” of “acts of student-on-student harassment” to be liable for monetary damages. 

The outcry with the new regulations has largely centered around the change in the definition when the word “pervasive” was added to the description of sexual harassment: “Sexual harassment is severe, pervasive and objectively offensive conduct that effectively denies a person equal educational access.” If Devin had harassed Samantha just once, even if severe and objectively offensive, then his behavior would not have met the criteria of grievable sexual harassment. 

Despite Samantha’s state of anxiety about repercussions from reporting Devin’s behavior, under the new regulations she must file a written formal complaint with the school district’s Title IX designee to start the grievance procedure and allow the school to be able to deal directly with Devin under Title IX. 
If Samantha agrees to file a formal complaint and they move into the grievance process, she can opt to enter into informal resolution at any point. The strict terms of informal resolution require both Samantha and Devin to voluntarily participate. Services or privileges cannot be made conditional based on their decision to enter into this process. Any agreement reached through informal resolution is binding on both, and if at any point and for any reason Samantha or Devin want to leave the informal resolution process, they are allowed to do so, and the formal resolution process begins. 

Some school districts have asked school counselors, who often help students with conflict resolution, to be the mediator in the informal resolution process. This is not an appropriate activity for school counselors. Sexual harassment is an illegal activity and rests squarely in the discipline arena. Additionally, mediating between a complainant and respondents creates a dual relationship for the school counselor. This type of mediation requires an element of heavy handiness and a specialized skill set that is markedly different from conflict resolution work. School counselors who are required to be informal resolution mediators despite their best advocacy efforts to remove themselves from this obligation should insist on receiving mediation training. The U.S. Department of Education requires well-trained mediators in these cases. One district successfully negotiated that school counselors never have to mediate students in their own school. Additionally, some school districts also put a school counselor in the role of Title IX liaison. This is also an inappropriate duty for school counselors, as it puts them in the discipline arena dealing with illegal behavior.

If Samantha refuses to file a complaint the school can still help her, but Devin must remain innocent in writing until proven guilty under the new Title IX regulations. What this means is that if Samantha is desperately afraid to share a class with Devin, she will need to rearrange her schedule rather than Devin’s changing. Under the old regulations, educators were required to protect the complainant before, during and after the investigation. Now, Samantha must be supported, but the burden will all fall on her if she refuses to file a formal written complaint. 

Therefore, Samantha can change schools or move out of Devin’s classes, seek counseling and/or develop a schedule less likely to intersect with Devin’s movements, but Devin can’t be forced to make any of these changes. Devin can’t be treated as responsible for sexual harassment without due process. Again, it is only after a determination is made following a fair grievance process that Devin can be disadvantaged with class changes and other restrictions on his movement. 

School districts can still punish Devin under their student code of conduct for any number of offenses, but Devin cannot be investigated under Title IX without a formal complaint. School districts should move quickly to revise their student code of conduct if they want to be able to address Devin’s behavior should Samantha refuse to file a formal complaint. Part of the outcry is that the new regulations are seen as more protective of respondent than the complainant given all the research around how retraumatizing it is for complainants to come forward. 

Given K–12 students’ developmental levels, their need to be peer-connected and their worry about social and physical retaliation, many students may suffer in silence instead of filing a formal complaint. 
Harassment vs. Assault
Changing the scenario: Devin ran his hands under Samantha’s blouse and pushed his body against hers. This was a one-time occurrence and not pervasive under the new definition of sexual harassment. Does this mean nothing can be done?

In this scenario, Devin has committed sexual assault. Sexual assault, stalking, dating violence and domestic violence are all considered sexual harassment, but these allegations do not have to meet the threshold of pervasive. A one-time sexual assault offense is considered enough to trigger the Title IX investigation.

Another major change in the new regulations is the option to use the preponderance of evidence or the more stringent “clear and convincing” standard. Preponderance of evidence means the district only needs to find that there is at least a 51% chance Samantha is telling the truth. This standard means she is more likely telling the truth than not. This standard can still be used, but it must be the only standard the district employs. 

If the district selects the clear and convincing evidence standard, it must be applied to all Title IX proceedings. School districts aren’t courts of law, and gathering enough evidence for a clear and convincing determination might be burdensome and outside the realm of possibility given the nature and function of schools. On your school district’s website, you will should be able to find if you will be under the preponderance of evidence or the clear and convincing standard. 

Changing the scenario: Samantha confides that Devin “forced her to have sex” at an off-campus party over the weekend. She shares two classes with him, one of which has only one section. 

Recourse for minors who are victims of off-campus dating violence in which the two share the same school changed drastically. Prior to May 2020, when the victim and perpetrator were in the same school and the complainant accused the respondent of dating violence, the school had to act as if a hostile environment was created for the alleged victim even if the abuse was perpetrated in a non-school-sanctioned event completely separate from the school. The hostile environment had to be addressed before, during and after the investigation. Hostile environment is not considered in the new regulations. School district do not have to investigate off-campus sexual harassment under Title IX. 

Changing the scenario: Two other girls in addition to Samantha reported in the same week that Devin made heinous unwelcome sexual remarks to them.

These multiple reports would have triggered an investigation under the old regulations with or without a formal complaint. However, without a written formal complaint, multiple reports no longer result in investigations under Title IX.
Title IX Changes and Transgender Students
Gabe used the boys’ restroom without incident for several years until a group of parents found out he was biologically assigned female at birth and made an outcry that he be stopped. The district pulled his rights to use the restroom coinciding with his gender identity. Does Title IX protect him? 

For Gavin Grimm Aug. 25, 2020, was a victorious day after a five-year battle to get recognition that he should have been allowed to use the restroom for the gender in which he identified. The Fourth Circuit Court of Appeals ruled it is a violation of Title IX to segregate transgender students from their peers for restrooms. Grimm’s case was to be heard by the U.S. Supreme Court in 2017, but just prior, the Trump administration pulled the guidance letter the Obama administration wrote giving transgender students recognition under Title IX. The Fourth Circuit Court decided the restroom policies segregating transgender students from their peers violates Title IX.

Another court case under Title VII led to a significant change in the way transgender students are viewed. In June 2020, the U.S. Supreme Court found in the Bostock v. Clayton County case that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” This case was about adults being fired for being gay or transgender. This landmark Supreme Court civil rights case held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. The clear message that transgender is about sex means discrimination against transgender students is about gender, and Title IX is about gender discrimination.

The findings of these two critically important court cases have to affect how the Office of Civil Rights interprets and handles violations of transgender rights under Title IX. The next few years will likely see an appeal to the whole circuit. Indeed, these two court cases have already had an impact on OCR’s behavior. After almost four years of not hearing any cases involving LGBTQ+ students, OCR is now poised to hear such a case out of Georgia, signaling a seismic change in practice. However, OCR made it clear in August 2020 that they still do not support a person to use the restroom according to their gender identity but only according to the biologically assigned gender at birth. The final word has not come regarding transgender students’ rights, but these two court cases signal change is coming. Stay tuned.