In 2004, under a provision of No Child Left Behind, the U.S. Department of Education (DOE) commissioned Charol Shakeshaft of Hofstra University to conduct a study of the occurrence of sexual assault in K-12 schools. Shakeshaft’s report, “Educator Sexual Misconduct,” revealed that nearly one in every ten students then in American public schools were exposed to some kind of sexual misconduct at the hands of a school employee between Kindergarten and Grade 12.
Whether Shakeshaft’s figures are accurate today is hard to say. A 2014 report of the U.S. Government Accountability Office (GAO) concluded that the true prevalence of sexual abuse of students by school personnel is not known. The GAO found that several federal agencies collect related data, but no single federal agency is coordinating efforts to address this data gap.
What we do know, however, is that some schools under-report or totally fail to report allegations of sexual harassment or sexual assault.
In July 2016, the American Association of University Women (AAUW) reported its analysis of the newly released 2013-2014 DOE Civil Rights Data Collection. The AAUW found that 67% of local education agencies or LEAs (public school districts, charter schools, or systems of charters) reported zero allegations of sexual harassment that year. However, the AAUW knew the 2013-2014 data was false, having previously done its own study in 2011, in which it found that 48% of middle and high school students aged 12-18 reported being sexually harassed in school, either by peers or by school personnel.
Unlike colleges and universities, public schools are not mandated by a federal law like the Clery Act to report individual complaints of sexual violence. However, virtually all K-12 school districts have policies prohibiting sexual misconduct by students as well as employees, and many states require regular reporting of sexual misconduct as well.
The Assistant Secretary of the Office for Civil Rights (OCR) Catherine Lhamon reported that, as of January 3, 2017, the OCR has opened 99 investigations of K-12 school districts for complaints of sexual violence or sexual harassment. OCR is the agency within the DOE charged with enforcing Title IX and several other federal anti-discrimination statutes. Title IX prohibits discrimination “on the basis of sex.”
When OCR receives a complaint of sex-based discrimination, which includes sexual harassment and sexual violence, OCR’s mandate is to investigate.
Dear Colleague Letters (DCLs) issued by OCR in 2010, 2011, and the 2014 Questions and Answers on Sexual Violence DCL, make clear OCR’s interpretation of a school’s responsibilities under Title IX: a school district which knows or should have known that sexual harassment or sexual violence was occurring must take steps to end the practices, eliminate the hostile environment that the harassment or violence engendered, and provide supports for the victim and the alleged perpetrator. The guilt of the accused must be adjudicated using the preponderance of evidence standard, a standard requiring simply that guilt is more likely than not to attach to the accused.
The preponderance of evidence standard is a lenient evidentiary standard, less strict than the alternative clear and convincing evidence standard. OCR insists on its use not only in K-12 adjudications of sexual misconduct, but also in colleges and universities where use of the lesser standard has generated dozens of lawsuits brought by males who allege they were wrongly disciplined.
A rush to judgment under a preponderance of evidence standard in K-12 may be even more dangerous, especially if students allege sexual misconduct by school personnel, charges that can damage or end an employee’s career. Not only may school employees adjudicated guilty under a preponderance of evidence standard allege due process violations and defamation as a result of the school’s use of the lenient standard, but collective bargaining rules may demand a higher standard of evidence before guilt is determined. Lawsuits may drag on for years.
OCR’s finding of a school district’s non-compliance with Title IX will typically result in OCR’s entering into a Resolution Agreement or a court-supervised Consent Decree with the alleged non-complying school district. School districts may be required to revise their sexual harassment policies, establish grievance procedures for alleged victims, devise new investigation and reporting protocols, hire a Title IX coordinator, conduct a climate survey, and provide OCR with proof of approved staff and student training, detailed monitoring reports, and annual site visits by OCR staff.
All this OCR involvement costs each school district tens of thousands of dollars annually, and OCR has seen the average processing times for investigating and resolving cases of sexual violence increase from an average of 289 days to 963 days. Some particularly difficult cases go on for over four to five years before OCR declares the cases closed.
Bottom Line for Schools
OCR investigations of sexual assault allegations are onerous for school districts, but that is not the primary reason to ensure that all school staff recognize, report, and deal with sexual misconduct of which they become aware. K-12 school districts have a responsibility to keep students safe from sexual assaults, especially from sexual assaults by adult employees who exercise power and control.
The Jerry Sandusky scandal in 2012 exposed problems with reporting of child sexual abuse in the Commonwealth and resulted in the convening of the Pennsylvania Task Force on Child Protection.
The Task Force report led to significant changes in Pennsylvania laws, including (1) a new definition of child abuse to encompass abuse by individuals outside the child’s home, (2) a mandate for direct reporting to the ChildLine hotline, (3) requiring background checks for volunteers who have direct contact with children, and (4) requiring more frequent updates of certain clearances.
In addition, all mandated reporters must receive training in recognizing child abuse and in reporting abuse. Failure to comply with the requirements for protecting children and youth in schools from sexual abuse by school personnel can result in significant legal liability.
If you have a question about the issues discussed in this article, please contact your legal counsel or one of the Education Law Practice Group attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.