The Office of Civil Rights (“OCR”) of the U.S. Department of Education, under pressure from activist groups for the rise in sexual assault and sexual harassment on college campuses, has released new guidance on Title IX and sexual violence. Although this new guidance is principally directed at colleges and universities, it will also impact public school districts.
Title IX is a federal civil rights law which prohibits discrimination on the basis of sex in federally funded education programs and activities. A majority of the new OCR guidance document deals with ways schools can initiate an internal investigation into sexual assault and sexual harassment while cooperating with the police. Typically, public school districts will not undertake this type of investigation, opting instead to turn over the investigation completely to local law enforcement.
However, this new guidance document requires schools who have notice of sexual assault or harassment to “take immediate and appropriate steps to investigate” what has occurred. Schools are considered to have notice of a sexual violence incident “if a responsible employee knew, or in the exercise of reasonable care should have known, about the sexual violence.”
If such an investigation finds that the sexual assault or harassment created a hostile environment at the school, the school must then take “prompt and effective steps” to remedy the hostile environment and prevent its reoccurrence. A delay in investigation or implementation of safeguards post-investigation may result in the school being found to have violated Title IX.
The new guidance requires investigation for sexual assault or harassment whether the assault or harassment occurred on or off campus. The investigation, regardless of where the location of sexual violence occurred, must complete two tasks: 1) determine whether or not the conduct occurred and 2) if the conduct occurred, what actions the school will take to end sexual violence, eliminate the hostile environment, and prevent its reoccurrence.
The investigation should also determine whether the conduct occurred in the context of an education program or activity. If the investigation finds that such conduct had in fact occurred in the context of an education program, they must take the same steps they would have taken to rectify the problem if the sexual violence had occurred on campus.
For the first time, OCR explicitly stated that Title IX protections apply to gay, lesbian, bisexual and transgender students. Title IX sexual discrimination provisions apply directly to all students who are discriminated, harassed, or assaulted regardless of their sexual orientation or gender identity. The actual or perceived sexual orientation or gender identity of the victims or the alleged perpetrators does not change a school’s obligations under Title IX.
Schools should take all incidents of on campus and off campus incidents of sexual violence seriously. Investigations of sexual violence should occur once the school has notice. Title IX rights continue to expand and evolve and schools should know that Title IX protections apply to all individuals regardless of sexual orientation or gender identity.
Contact any of our student/special education group attorneys with your inquiries regarding the Guidance.