The Legal Issue
In April of 2014, the U.S. Department of Education’s Office for Civil Rights (OCR) released an updated policy interpretation clarifying the legal responsibilities of colleges, universities and public schools to address sexual violence and other forms of sexual discrimination under Title IX of the Education Amendments of 1972. The guidelines supplement the groundbreaking policy guidance
on the issue of sexual violence issued by the OCR in 2011.
Although federally-funded colleges are required to report sexual assault statistics under the federal Clery Act, there is no equivalent data collection requirement for K-12 schools. Statistics compiled through research by the Centers for Disease Control and Prevention reveal that 30 percent of female victims of sexual assault were first attacked between the ages of 11 and 17 and that 20 percent of high school-age girls have experienced dating violence. And the trend in numerous rulings in recent years both by courts and the OCR indicate that such attacks often occur on school grounds or in association with school activities and that high schools and middle schools appear to be failing victims of sexual assault through inadequate investigatory procedures following reports of sexual violence in schools. Currently, there are 33 open OCR Title IX sexual violence investigations pending in school districts across the United States.
An Illustrative Case
A recent case, Jane Doe v. Forest Hills School District (Michigan), decided by a federal court in March 2015, illustrates the challenges facing school administrators with regard to sexual violence and the legal standards governing the mandated response by schools when an alleged incident of sexual assault or sexual harassment occurs.
In November 2010, a sophomore at Forest Hills Central High School, identified in all court documents as Jane Doe because of her status as a minor, was allegedly sexually assaulted by a male classmate, identified in all court documents as MM because of his status as a minor. MM was a star basketball player at the school and he allegedly committed the sexual assault by dragging Doe, who was a star soccer player and a cheerleader for the school, into a soundproof band room where the attack took place. According to the summary of facts set forth in the court case, after pinning Doe to the floor of the band room, MM put his hand down her pants, digitally penetrated her, and then tried to rape her. She was able to escape only because her cell phone rang and distracted him, at which point she forcefully struck his groin, momentarily disabling him and providing an opportunity for her to run away.
After Jane Doe confided in one of her teachers that she had been sexually assaulted, the teacher immediately notified both a school counselor and the school principal. The principal then contacted the local Sheriff’s Deputy, who served as the school’s law enforcement resource officer, as well as Jane Doe’s parents. During an initial meeting with Jane Doe and her parents, according to the complaint filed with the OCR and the pleadings in the later-filed lawsuit, the principal allegedly discouraged the filing of a police report and advised the family that things would be difficult for Doe at school if they pursued legal action in the matter. The resource officer, who did not attend that initial meeting, met the next day with the principal and the family, at which time Doe was taken to get a “rape kit” performed and a police report was filed concerning the incident.
The principal, along with the district superintendent and an assistant superintendent who was the district’s federally-mandated Title IX Compliance Officer, handled all aspects of the investigatory process in the days, weeks and months after the initial report of the sexual assault. During the two weeks immediately following the incident, Doe and MM shared a class, a lunch period and other settings where their paths crossed on school property. Doe’s parents requested that the school take steps to remove MM from any settings where he might interact with their daughter, but the school officials offered only to shift Doe’s classes and not MM’s because, allegedly, they didn’t want to inconvenience the alleged perpetrator of the sexual assault. Although school officials told MM to stay away from Doe, he followed her around school, blocked her exit from bathrooms and classrooms, called her ugly and a liar, hissed at her in common areas of the school, keyed her car, and repeatedly pushed other students into her in school hallways. Doe reported the harassment to school officials, who merely told her to ignore MM and try to avoid him. MM was not immediately disciplined in any way.
Complicating the matter was the fact that Doe became the target of intense in-person bullying and cyberbullying by students who blamed Doe for the potential negative repercussions against the school’s star basketball player and the fear by those students that if MM was eventually suspended, the team’s success on the court might be affected.
Then, two weeks after the alleged assault against Doe, the principal was notified that MM had sexually assaulted another female student in a car in the school parking lot.
MM was eventually charged with felony criminal sexual conduct for the attack against Doe and he pleaded guilty to lesser juvenile charges. The school imposed on MM a one-year suspension from the basketball team and five-day suspension from school to be served at the beginning of the following academic year, during which he transferred to another school to play basketball. Doe switched schools at the end of the academic year in which the assault occurred, attended another high school in the district throughout her junior year, and then, after MM transferred, switched back to Forest Hills Central for her senior year. Eleven months after the assault against Doe, the school declared its investigation into the matter closed.
Doe’s family pursued legal action by first filing a complaint with the OCR alleging that the school district had violated its obligations under Title IX by failing to respond appropriately to a report of sexual assault and then by filing a civil lawsuit against the school district and various school officials.
The Court’s Ruling
In the federal court’s written decision, issued on March 31, 2015, the judge refused to grant summary judgment to the school district on the issue regarding the alleged mishandling of the sexual assault investigation, ruling that the Forest Hills School District failed to adequately train staff members regarding the legally mandated investigatory procedures required under Title IX of schools attempting to respond to claims of sexual violence or harassment on campus.
The judge found that district personnel did not act with intent or malice to avoid fulfilling their legal obligations to Doe, but instead simply did not seem to fully understand the requirements imposed by Title IX on schools in such situations, stating “[h]ere, there is no indication that the school administrators acted with bias or ill-will, but rather their testimony shows that they were acting as they thought was reasonable. Thus, their shortcomings appear to be the result of inadequate training; if they had known about the guidance from the Department of Education on how to thoroughly handle complaints of harassment, there is no indication that the Defendants would not have substantially followed those guidelines.”
The judge also concluded that based on the U.S. Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education, a school district will be liable for student-on-student harassment when school officials in a position to take remedial action have knowledge that harassment is occurring and exhibit deliberate indifference to correcting the situation. In cases such as Jane Doe v. Forest Hills School District, “knowledge plus deliberate indifference” is the legal standard governing the extent of liability for the school and its personnel. The written opinion in the case stated that “deliberate indifference” could be inferred from school officials not taking action to protect Doe from having to interact with MM in class and other school settings, from school officials continuing to merely talk to MM when they knew he was repeatedly harassing Doe, from the limited investigation following the initial report of the sexual assault, and from allowing the investigation to drag on for 11 months.
In a statement that sets forth important recommendations for any school dealing with a report of sexual assault or sexual harassment, the judge in the Forest Hills case ruled that “the school clearly did not comply with the Title IX Guidance in its investigation. The Department of Education suggests a maximum 60-day investigation, opportunities for the parties to present witnesses and evidence, a determination based on a preponderance of the evidence, a written notice of the outcome, the opportunity to appeal the finding, and measures to protect the complainant during the pendency of the investigation, all criteria that Forest Hills School District failed to fulfill.”
The bottom-line implication of the Forest Hills case is that districts need to develop and implement policies based on all of the detailed requirements set forth in the U.S. Department of Education’s Title IX policy guidance (see above for the website address to obtain the guidance).
Final Resolution of the Case
On June 17, 2015, the Forest Hills School District agreed to pay Jane Doe $600,000 to settle the case. Under the resolution agreement, the district agreed to sponsor extensive Title IX training programs both for its Title IX Compliance Officer and for all district personnel regarding the reporting, investigatory and adjudicatory procedures mandated by Title IX in situations involving sexual assault, sexual violence and sexual harassment.
Lee Green is an attorney and a professor at Baker University in Baldwin City, Kansas, where he teaches courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.