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Disability and Age Application to Title IX

Updated: Mar 30, 2023

Title IX is a federal civil rights law that prohibits sex-based discrimination in education and requires the prompt, thorough investigation of sexual harassment concerns and complaints. Title IX investigations are complex and require a minimum of 3 administrators (investigator, decision-maker, and appeals officer), notices to both parties, supportive measures, advanced notice of interviews, and a thorough investigation report. Each of these requirements are resource intensive for a school district.

A common question we receive is can a young student really commit sexual harassment if they don't know what it is? Do I need to conduct a Title IX investigation when the respondent is a kindergartner? Does a kindergartner really understand the harm they are causing to someone else? Similarly, can a student who has a disability really commit sexual harassment if they don't understand what it is?

Is It Child’s Play or Sexual Harassment/Abuse?

The issue of bullying on playgrounds has been a prevalent problem for as long as we can remember. Children have always teased, bullied, and even abused their fellow classmates. They usually target those who are different and weaker than them, often making fun of their appearances, behaviors, and even their disabilities. However, the question arises, when does this playful behavior become a serious problem and when must a Title IX sexual harassment investigation be conducted?

One of the scenarios that often arise is when a child tries to look up the skirt of a female classmate. Or when a boy makes a girl take off her clothes to play doctor. Sometimes, a child might even ask another child to show them their private parts. All of these scenarios, and many more, can occur between school-age children. But at what point does this kind of behavior turn into sexual harassment or abuse?

K-12 educators and administrators need to keep their students safe and ensure that any type of harassment or abuse is not tolerated. If harassment does occur, administrators must understand their responsibilities for addressing these types of behaviors. Does Title IX, a federal civil rights law that prohibits sex-based discrimination in education, apply to student-on-student scenarios where there's potential for sexual harassment or abuse? Furthermore, does it apply to students in first grade or to students with special needs who may not be aware of their own sexual misconduct?

When it comes to addressing Title IX cases, intent to harm is not necessary to prove harassment and the effect on the target or complainant must be considered. For instance, if the target or complainant is physically or emotionally affected, or if the harassment interferes with their experience of school, it can still be considered harassment even if the aggressor or respondent did not intend to do harm or does not understand the harassment they are committing. Appropriate support and actions should be provided to address the situation and ensure a safe and inclusive learning environment for all students.

A student's age is a factor that should be considered in determining the appropriate action to take. For example, if the target or complainant is a seven-year-old child with no prior issues it will require a different approach than a high school student with a history of harassment.

Special Education Students and Sexual Harassment

When it comes to special education students, addressing sexual harassment and abuse can be even more challenging. Shocking statistics have revealed that children with intellectual disabilities are more likely to experience sexual abuse. It's important for all children to learn at an early age how to identify harmful behavior and how to communicate about it. However, children with intellectual disabilities often lack the ability to understand the difference between normal affection and harmful conduct, and they may not have the capacity to consent; nor the ability to understand the harm their actions are causing.

A student's level of maturity and intellectual disability will need to be taken into account to determine appropriate corrective actions. When disciplining a student with an intellectual disability, it is important to consider the student's mental capacity. A student with dyslexia may not be given special consideration for sexually assaulting someone, while a fifteen-year-old with the mental age of a seven-year-old probably would. If the target or complainant is a child with a disability, such as a learning disability, it may require additional support and accommodations to address the situation.

Title IX encompasses all K-12 students, meaning that it also applies to younger children or children with disabilities. Despite the age or disability of the respondent, if the conduct is severe, pervasive, and objectively offensive, Title IX intake and investigation procedures must be followed. The totality of the circumstances - such as age and disability – will be considered when deciding the appropriate actions to take. If you need more guidance on these issues or have a specific situation to discuss, McGrath Training Solutions is available to help. We have been working with school districts for over forty years to protect students and staff from bullying, discrimination, and abuse. We can provide solutions and problem-solving strategies. Contact us today or call 800.733.1638 for assistance.


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