Title IX issues raised in latest federal civil-rights case

A complaint to the federal Department of Education’s Office for Civil Rights (OCR) was filed March 5 by a Gunn High School family (see When teen dating violence hits), alleging that the school district violated Title IX of the Education Amendments of 1972 in its handling of peer sexual harassment and violence in which their daughter, a Gunn student, was victimized by her former boyfriend, also a Gunn student.

On March 24, the federal agency gave notice to the district and teenage girl’s family that it was opening an investigation of the allegations, as reported in the Weekly earlier this month.

In addition to investigating the individual complaint, according to an Office for Civil Rights email to the family, the agency will be “investigating how the District has responded to other complaints of peer based sexual harassment/sexual violence at Gunn High School” as part of a “standard approach in OCR investigations into complaints of sexual harassment/sexual violence and part of how we assess the broader climate at a school.”

The Office for Civil Rights’ initial request for data, attached to the district’s notice with redactions to protect student privacy, seeks records from the district dating from the 2011-12 school year related to sexual harassment or sexual violence involving Gunn students, including incidents alleging peer-to-peer or employee-to-student harassment. This is similar to the Office for Civil Rights’ data request sent to Palo Alto High School in connection with a Title IX compliance investigation the agency began there in June 2013.

According to the notices sent to both high schools, by opening an investigation, the Office for Civil Rights “in no way implies that OCR has made a determination with regard to the merits.”

Federal investigators were conducting interviews at Gunn with staff this week, according to the Gunn complainant, whose family was also interviewed.

On May 13-14, according to reports received by the Weekly, federal attorneys visited Palo Alto High School to conduct interviews with staff there in connection with that separate investigation.

The Office for Civil Rights’ 2011 Dear Colleague Letter details schools’ obligations regarding sexual harassment and sexual violence, and defines sexual harassment as “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances … and other verbal, nonverbal or physical conduct of a sexual nature.”

Sexual harassment, sexual assault and gender-based violence are all prohibited forms of discrimination based upon sex, as Office for Civil Rights’ guidance documents and Title IX experts make clear.

As part of National Teen Dating Violence Awareness and Prevention Month, Education Secretary Arne Duncan sent a letter in February 2013 to all chief state school officers highlighting the need for schools to take action against all forms of “gender-based violence,” including sexual assault, intimate partner or teen dating violence, and stalking. (See Dating Violence: What is it, and what schools and parents can do.)

Under Title IX, a school district is not responsible for the actual acts of sexual harassment or violence committed by students, but instead is responsible for its own response once it is on notice that such peer misconduct has occurred. The nature of this obligation is summarized in the 2011 Office for Civil Rights letter:

“If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”

According to the letter, the school’s first step is to promptly investigate once it has notice (regardless of whether a complaint is filed or a victim cooperates) to determine what occurred and what appropriate steps are required to resolve the situation. This is a duty that arises not just from the facts of an individual case, but also from the school’s overarching duty to preserve a non-discriminatory learning environment for all students.

The letter also says “a school should minimize the burden on the complainant” when taking steps to separate the victim from the harasser.

A hostile environment is created when “conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” The more severe the misconduct, according to the 2011 letter, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the misconduct is physical.

The Gunn family’s Title IX complaint, a copy of which was provided to the Weekly by the family, includes the following allegations:

• The school failed to investigate and stop the harassment when it first had notice there was a problem between the two students;

• Even after the physical assault, the school did not promptly or fully investigate;

• The school failed to take appropriate steps to ensure that the harassment did not recur and to address its effects, including resisting the family’s requests for assurances that the court stay-away order be complied with, that the harasser be transferred to Paly (“an equally good comprehensive, college preparatory high school”), and that the harasser be disciplined for his alleged misconduct on campus and on the way home from school (ultimately, weeks later the school disciplined for the physical attack but not for the other forms of harassment);

• “We are particularly alarmed that the school informed us that it had a practice of not enforcing restraining orders and that in prior, similar cases of dating violence the district had instead followed what it called ‘the spirit of the restraining order'”;

• For weeks, the school offered a variety of inaccurate reasons for why it could not discipline the harasser or transfer him to Paly;

• The school’s alternate proposal of a “safety plan” (with designated walking routes for both students and assigned campus supervisor to monitor the victim from a distance for at least a week) was inadequate to protect the victim, placing the victim in serious danger if it failed and imposing an unreasonable burden on the victim given the circumstances and other options available;

• As a result of the sexual harassment, combined with the school’s inadequate response, the victim experienced a hostile educational environment, including emotional stress and negative academic impacts;

• The district did not respond appropriately to the family’s appeals to district-level officials about the school administrator’s handling of the matter (“there was no discernible procedure,” “no one seemed to recognize that stalking and dating violence could constitute sexual harassment,” and “no one implemented, or referred us to the school’s sexual harassment complaint procedure or the district Uniform Complaint Procedure”);

• School administrators appeared to be inadequately trained in recognizing and responding effectively to notice of situations involving possible sexual harassment;

• A victim of sexual harassment should not be required to go to the police or obtain a court order in order for the school to consider transferring the harasser to another school; and

• A victim of sexual harassment should not have to turn to the prosecutor and probation department for assistance in ensuring her safety at school, including getting their help in facilitating the harasser’s agreement to transfer to another school.

The complaint concludes: “It is our hope that OCR will thoroughly investigate this matter and ensure that all consequences of the harassment on our daughter are fully remedied. If any systemic issues … are found we would like OCR to ensure that the district makes any necessary changes to its sexual harassment response … so that any future cases will be handled appropriately.”

In response to the Office for Civil Rights’ notice of the filing of this complaint and investigation, the district issued a statement on May 2: “We welcome OCR input on how we may improve our continuing efforts to educate students and staff on preventing sexual harassment and discrimination, encourage the reporting of any concerns promptly, and take positive steps to maintain safe and inclusive schools for all.”