Title IX of the United States Education Amendments of 1972 prohibits gender discrimination in the school setting, covering both public and private schools. This statute is more than just an anti-discrimination law, however. It also protects students from sexual harassment and sexual violence.
Under Title IX, schools have a legal obligation to protect students from hostile environments caused by sexual violence or harassment. Any time a school receives knowledge, or reasonably should know, about such conduct, it has the duty to promptly and effectively resolve the situation. This obligation is not relieved merely because a student does not wish to press charges or file a complaint against the offender. If the student does press charges and the police initiate an investigation, the school must continue its own investigation to ensure that the student’s situation has been fully resolved.
There are currently 167 colleges and universities, and dozens of school districts, under investigation for violating Title IX. The consequences for a violation can be extraordinarily detrimental to a school or school district. The federal government may elect to use the rare remedy of withdrawing funding to the school. Student victims may receive substantial civil damages and attorney fees. Private institutions face reputational damage, which can lead to monetary loss. Creating and vigorously enforcing policies that effectively address sexual assault is paramount to keeping students safe and avoiding the ramifications of noncompliance.
A sound strategy for creating an effective compliance policy is to facilitate communication between students and staff, train employees on when and how to report suspicion or knowledge of sexual assault, and establish procedures on properly investigating, resolving, and following up on all instances of assault.
Facilitated Communication
The policy of Brigham Young University offers no immunity to sexual violence complainants and can work to discourage students from filing a report. The students at Brigham are forbidden from engaging in premarital sexual conduct or the use of drugs and alcohol. In a recent incident, a student reported being the victim of sexual violence by someone with whom she had previously been romantically engaged. In return, she was suspended for her previous consensual sexual conduct and the drug use that occurred at the time of the assault.
Students should never be discouraged from reporting sexual assault, and all efforts should be made to remove those barriers. A guarantee of absolute confidentiality is not always possible, especially when the incident involves the abuse of a minor. However, schools can strive to maintain confidentiality and create an open door policy that protects students from retaliation. Students should also be made familiar with the person or office that receives complaints (the mandatorily designated Title IX coordinator) so that they are comfortable in initiating the reporting process. A published notice of the reporting policy is required by federal law.
Employee Training
All employees should be trained to be familiar with the school’s procedures. If a teacher, for example, is informed of a sexual assault, the school’s “prompt response” duty would require that the teacher immediately forward the information to the school’s Title IX coordinator for further investigation. Employees should also be thoroughly trained on warning signs of abuse, and recognizing when reporting information to the coordinator would be legally mandatory.
Remedial Procedures
Once the school receives a complaint, or otherwise knows about a sexual harassment or assault, it should take remedial measures. The first and most important step is ensuring that the student is no longer in any danger. The school should then investigate the incident more thoroughly.
Where a school finds that the student was in fact assaulted, the actor can be dealt with through disciplinary action. Zero-tolerance policies of sexual violence by employees must be strictly adhered to. When the actor is another student, the school must take an action appropriate to both discipline that student, and ensure that the incident will not occur again. In the event that the actor is a third party not affiliated with the school, security should be informed and, in some cases, increased.
Title IX grants the following rights to all sexual violence complainants, which must be protected by school procedures and policies:
- To present his or her case, including an opportunity to provide witnesses, receive a thorough and impartial investigation, and to appeal a decision.
- To be provided a time frame in which (1) the school will conduct its investigation, (2) the school will send notice of the outcome of the complaint, and (3) the parties may appeal.
- To a “preponderance of the evidence” standard in determining the outcome of the investigation. This means the prevailing party should be the one that provides the greater weight of evidence, taking into account its credibility.
- To be informed of the outcome of the investigation, and to be told of any sanction that directly involves the complainant. This means the complainant must be informed if another student is no longer allowed near him or her, but not if that student has been suspended or expelled.
By adhering to the mandatory procedures of Title IX, schools will protect the safety of their students and prevent penalties or lawsuits due to noncompliance. School administrators should implement professionally drafted policies and consider receiving training on Title IX obligations.