Addressing Sexual Harassment Under Title IX
When Students with Special Needs are Involved
“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.”
“Sexual harassment” component evolved from US Supreme Court decisions.
OCR is the administrative agency that enforces Title IX in schools.
Failure to comply can result in withholding of federal funding.
Latest regulations stem from due process concerns for accused students in the college context.
The rules require the district to respond promptly, in a manner that is not deliberately indifferent, to actual knowledge of sexual harassment in an education program or activity.
Deliberate indifference is the failure to respond reasonably in light of known circumstances.
The new regulations expand the definition of “actual knowledge” as applied to K-12 schools. The new standard is if any school employee has notice of sexual harassment or allegations of sexual harassment, then the school has “actual knowledge” and the legal responsibilities begin.
The reason for the standard is that children, particularly young children, do not differentiate between school employees. To a child, an adult is an adult.
TRAINING OF ALL EMPLOYEES IS CRITICAL.
An employee conditioning an aid, benefit, or service of the district on an individual’s participation in unwelcomed sexual conduct (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 district educational program or activity (hostile environment)
Sexual assault, dating violence, domestic violence, or stalking as defined in federal law
In the past, oversight for Title IX compliance was the responsibility of one coordinator. The new regulations require a team with a minimum of four individuals with distinct roles to implement processes. The team and associated roles include the following:
Title IX coordinator: coordinates compliance for the educational entity
Investigator: investigates the formal complaint; may also serve as Title IX coordinator
Decision-maker: makes a determination after the investigation is completed
Appellate decision-maker: makes a determination upon appeal
Facilitator: oversees the informal resolution process of a complaint if both parties agree to this process
When a district is in receipt of a formal complaint the district/school must provide the following written notice to the parties who are known:
Notice of the district’s Title IX formal complaint process, including any information regarding the resolution process;
Notice of the allegations of sexual harassment which includes, (1) the identities of the parties involved if known, (2) the conduct alleged as sexual harassment and (3) the date and location of the alleged incident, if known.
The written notice needs to have the following language as part of every notice of formal complaint:
The respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the Title IX formal complaint process.
The parties may have an advisor of their choice, who may be, but is not required to be, an attorney.
The parties may inspect and review evidence.
Cite the district/school’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the Title IX formal complaint process.
All school district actions must presume that the respondent is not responsible for the alleged conduct until after a final determination in a formal complaint process.
All Title IX personnel must serve impartially and free from conflicts of interest or bias against the individual complainant and respondent.
Most schools are adopting a “preponderance of evidence” standard regarding evidence necessary to establish a violation.
“Preponderance of evidence” is a standard meaning that a proposition is more likely than not to be true.
If the school decides to investigate allegations about the complainant or respondent that are not included in the Notice of Formal Complaint, the school must provide written notice of the additional allegations to the parties whose identities are known.
All formal complaints must be investigated. However, a complaint can be dismissed after a review for the following reasons:
The alleged conduct in the formal complaint would not constitute sexual harassment even if proved; or
The alleged conduct did not occur in the district’s education program or
activity; or
The alleged conduct did not occur against a person in the United States.
Even if a complaint is dismissed, the district/school can take action under another provision of the district’s code of conduct.
A complaint may be dismissed any time during the investigation by the school when:
A complainant sends written notification to the Title IX Coordinator that they would like to withdraw the formal complaint or any allegations that are part of the Title IX complaint; or
The respondent is no longer enrolled or employed by the school; or
Special circumstances prevent the school from gathering evidence sufficient to reach a determination as to the formal complaint or allegations.
The school must promptly and simultaneously provide written notice of the dismissal setting forth the reason(s) for the dismissal to the parties.
Even if a complaint is dismissed, the school can take action under another provision of the district’s code of conduct.
The school has the choice to consolidate formal complaints when the allegations are against more than one respondent or by more than one complainant against one or more respondents or by one party against the other party, when the allegations of harassment arise out of the same facts or circumstances.
Supportive measures must be offered to a complainant and, as appropriate, also to a respondent. Supportive measures must be offered regardless of whether a formal complaint is initiated, or whether the complainant participates in the formal complaint process.
The Title IX coordinator must document whether a complainant elects to accept or decline the supportive measures offered.
Supportive measures must be individualized, non-punitive, free of charge, and they shall not unreasonably burden either party.
Counseling about inappropriate behaviors
Explaining policies and expectations to the respondent
Temporary removals
Changing seating, class or campus assignments
Extending deadlines or other course-related adjustments
Implementing “stay-away” agreements
Establish specific campus employees as points of contact
Modify class or activity schedules
Escorting students or employees
Increase security and monitoring of certain areas of the campus
Ensure that the gathering of sufficient evidence and the burden of proof for reaching a determination is the school’s responsibility.
The school cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist or other healthcare professional which is made and maintained in connection with the provision of treatment to the party, unless the party has given voluntary, written consent.
Each party has the right to present witnesses, including fact and expert witnesses, and other evidence.
The school cannot restrict the ability of either party to discuss the allegations under investigation or from gathering and presenting relevant evidence.
Each party has the right to have others present during any Title IX formal complaint proceeding. (The school may establish restrictions regarding the extent to which the advisor may participate in the proceedings)
Provide to a party whose participation is invited or expected, written notice of the date, time, location, participants and purpose of the meeting, with sufficient time for the party to prepare to participate.
Prior to completion of the investigate report, the district must send to each party and the party’s advisor, if any, the evidence obtained as part of the investigation, whether relied on or not, in an electronic format or hard copy at least ten days prior to the completion of the investigative report so that the parties may submit a written response if they so choose.
Once the investigative report has been sent simultaneously to the parties, the decision maker must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional limited follow-up questions from each party.
Questions or evidence about the complainant’s prior sexual behavior or sexual predisposition are normally not relevant or permitted unless they are offered to:
Prove that someone other than the respondent committed the conduct alleged; or
The questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
The decision-maker must explain to the party proposing the questions any decision to exclude a question or evidence as not relevant.
The decision-maker must issue a written determination regarding responsibility which is provided to the parties simultaneously. The written determination must include the following:
The sexual harassment allegations;
A description of the steps taken from the beginning of the receipt of the complaint through the determination by the decision-maker (including any notifications to the parties, interviews with the parties and witnesses, site visits, and methods used to gather other evidence)
Findings of fact supporting the determination;
Conclusions regarding the application of the district’s code of conduct to the facts;
A statement and explanation for the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the district imposes on the respondent, and whether remedies designed to restore or preserve equal access to the district’s education program or activity will be provided by the district to the complainant; and
The permissible reasons for an appeal and the appeal process.
If an appeal is filed, the date that the school provides the written determination of the result of the appeal. If no appeal is filed, the day after the last day to file an appeal.
The school must offer both parties an opportunity to appeal from a determination of responsibility or a dismissal of a formal complaint or a dismissal of any of the allegations of a formal complaint on the bases of the following:
Procedural irregularity that affected the outcome of the matter;
New evidence that was not reasonably available at the time the determination was made that could affect the outcome of the matter; or
The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against the complainant or respondent that affected the outcome of the matter.
The school must do the following:
Send written notice to the other party that an appeal has been filed;
Give both parties a reasonable opportunity to submit a written statement;
Provide both parties simultaneously a copy of the written decision describing the result of the appeal and the basis for the decision.
Applies after a formal complaint is filed
Both parties must give voluntary, informed, written consent
Process cannot be used in the employee/student context
Either party has the right to withdraw from the process prior to an agreement
If an agreement is reached, put the terms in writing, and be specific
Require confidentiality to the extent allowed by law
Any records related to the school’s entire response and process relating to an allegation of sexual harassment must be maintained in accordance with the school’s record retention schedules or a minimum of seven years, whichever is longer.
The requirement also applies to training materials.
When the victim received special education services, an ARD meeting needs to be held to determine whether the harassment impacted the student’s ability to receive a FAPE.
Counseling
Personal boundaries training
Parent counseling
If the perpetrator is receiving special education services and is going to be removed for more than 10 days, then a manifestation determination review must take place.
A student with a disability may be removed from his/her placement who violates the Student Code of Conduct for not more than 10 consecutive school days, or a series of removals that does not constitute a change in placement. Any removals that would constitute a change in placement can only occur after the committee conducts a manifestation determination review.
A change in placement occurs if the student is:
Removed from the student’s current placement for more than 10 consecutive days; or
The student is:
Subjected to a series of removals totaling more than 10 school days;
The student’s behavior is substantially similar to the student’s behavior in the previous incidents that resulted in a series of removals; and
Additional factors exist, such as the length of each removal, the total amount of the time the student is removed, and the proximity of the removals to one another.
How to Count to Ten
Partial days of removal
In -school suspension
Home, out of school suspension, or days in a DAEP
An MDR must be held whenever a change in placement has occurred. The “10 day” rule for change of placement applies. A MDR should occur within 10 days of a decision to change a student' placement because of a student code of conduct violation.
Bus Suspensions
Under IDEA, a five school day notice of the MDR must be provided, unless the parent waived the 5-day notice.
Written Notice
Under Section 504, the parent is not even required to be a member. Therefore, there is no requirement that written notice be provided 5 school days prior to the meeting. However, it is recommended that the district provide written notice of the meeting to verify that notice was provided to the parent. Additionally, a copy of the MDR should be provided.
The Administrator’s Responsibility
The administrator is responsible for (1) investigating and determining whether a student has committed a disciplinary infraction; and (2) assessing an appropriate disciplinary sanction. The imposition of the sanction is contingent upon whether the behavior is a manifestation of the student's disability under § 504 or IDEA.
The ARD Committee Responsibility
The ARD committee is responsible for determining whether the IEP was followed and whether the misbehavior was directly or substantially caused by the disability. Like the 504 committee, the ARD committee does not determine guilt or innocence or the sanction.
The 504 Committee Responsibility
The 504 Committee is responsible for conducting the manifestation determination. The 504 Committee does not determine guilt or innocence nor does the 504 committee determine the sanction for the behavior.
Record Review
With a student receiving 504 services, the 504 committee needs to consider all relevant information including evaluation data and disciplinary history.
With a student receiving special education services, the ARD committee also needs to consider all relevant information, including evaluation data and disciplinary history.
Question(s) for MDR
Whether the student’s plan was implemented.
Whether the conduct in question was caused by or had a direct and substantial relationship to the student’s disability. If it does, the behavior is a manifestation of the disability.
Factors to Consider When Making an MDR
Analyze the child's behavior across settings and across time to determine if the conduct is a direct result of the student's disability.
The child's diagnosis or "eligibility" does not categorically determine a manifestation.
Misconduct must bear more than a weak relationship to the disability.
Consider the circumstances surrounding the behavior.
Determine whether the action was purposeful and intentional.
When the Behavior is Not a Manifestation
The student is treated the same as his nondisabled peers, and the administration's recommendation is implemented. The district must ensure that the student's plan will be implemented at the alternative placement.
When the Behavior is a Manifestation
Generally, the district must return the student to the placement, unless the parent and the school agree to change the placement, or there is a determination that maintaining the student’s placement would pose a substantial risk of harm to the student or others. Consequences may be implemented, if appropriate. The 504 committee should consider developing a BIP for the student, or modifying an existing BIP. When a student is under an IEP, a BIP needs to be developed if the student is removed for more than 10 days.
Questions and Answers
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Disclaimer
The legal information provided during this webinar is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services.
Accessing this information does not create an attorney/client relationship. Individual legal situations vary greatly and attendees should consult directly with an attorney.