Laws and Policies

Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.” In 1992, Franklin v. Gwinnet County Public Schools was the landmark case whereby the U.S. Supreme Court ruled unanimously that students could sue for damages for sexual harassment and other forms of sexual discrimination under Title IX. The Franklin case involved a teacher who had a sexual relationship with a student, with the knowledge of other faculty members. The Davis ruling also set a precedent, this time in student-on-student sexual harassment. The Supreme Court ruled five to four that any school receiving federal money can face a sex-discrimination suit under Title IX for failing to intervene appropriately when a student complains of sexual harassment by another student.

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“It goes beyond kids acting inappropriately or unseemly to other kids, it goes to the responsibility of the schools and the people there to do something to stop it and intervene,” says Della S. Grossman, Ed.D., a clinical and forensic psychologist who specializes in sexual harassment and assault. The most common way that schools deal with sexual harassment is to draft policies addressing it. Many schools have sexual harassment policies that outline the steps in reporting it, stopping it and punishing those who do it. Some states, including California and Minnesota, have mandated that schools adopt a sexual harassment policy and distribute written copies to students.

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Duty to Train

School districts have a duty to provide ongoing education and inservice which go beyond perfunctory treatment of sex-based harassment and instead sensitize employees and students to problems of harassment. The purpose of such a program is to educate and, where necessary, “clean up” past practices to transform the school culture. To accomplish this it is necessary to have students recognize the result and consequences of unhealthy sexual behaviors and attitudes. Students should know that they have a right to attend school in settings that are free from sex-based harassment. They must know how to assess and respond to sex discrimination and sex-based harassment, including the procedure for filing a complaint.
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On April 19, 2024 The United States Department of Education’s Office for Civil Rights (OCR) released an Unofficial Final Rule implementing Title IX of the Education Amendments of 1972 (“Title IX”). The Final Rule takes effect August 1, 2024 and includes requirements for training designated leaders (coordinators, investigators, etc) prior to engaging in this work and annual awareness training for all of school employees.  Training must also be provided upon hire and if a new assignment is given in which the employee’s role entails tasks closer related to Title IX procedures. 

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Who do I Train?

All staff, students, and parents need to be trained on what sex discrimination and sex-based harassment is and how and where to make a report.  Title IX Coordinators, investigators, decision-makers, and any person designated by a recipient to facilitate an informal resolution need additional training to ensure compliance with the Title IX regulations.  

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Per the 2024 Title IX Final Rule, all district personnel both certificated and classified, full and part time, and third party, must be trained annually.  It is best practice to provide awareness training to every student in your district from preschool on up.  This awareness training can be extended to parents and guardians.  When providing awareness training to students, notify parents well in advance and invite them to view any videos or curriculum materials prior.  Educate parents and guardians on the issues, including their children’s right to a safe, respectful school environment, as well as how to report a complaint and to whom.

 

Behaviors including hitting, shoving, name calling, invasion of personal space and gender-based bullying have been identified as precursors to actionable sex-based harassment and violence.  Children must be sensitized to the hurtful nature of this behavior so that they not only act responsibly themselves but also know how to react when they observe or receive such treatment.

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How much Training is Sufficient?

At the middle and high school level, we recommend devoting at least one assembly and two full class periods a year on the subject of sex discrimination and sex-based harassment and conducting ongoing campaigns that emphasize and reward respect and responsibility within the student community. A sex discrimination and sex-based harassment curriculum can be appropriately incorporated into a course of study in social sciences, sociology, psychology, human sexuality, vocational education, health education, family life, or other related subject areas.
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For elementary age students, we recommend focusing on respect and responsibility; training students to recognize and report bullying, teasing, and violence. Several elementary school districts report success with incorporating this training into school wide campaigns on respect. Devil’s Lake Public Schools in North Dakota has received statewide recognition for its elementary school campaign which includes regular student-designed assemblies on dignity, trust, and respect, a respect cheer and song, daily class discussions, video training, and the use of puppets (in grades K-2) to reinforce the lessons.
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2024 Title IX regulations require training for your designated leaders (coordinators, investigators, etc) prior to engaging in this work and annual awareness training for all of your school employees.  Training must also be provided upon hire and if a new assignment is given in which the employee’s role entails tasks closer related to Title IX procedures. 

 

How to Shield Your District

The Supreme Court has emphasized that school districts are not liable for the original harassing conduct of one student to another or for adult to student sexual misconduct. They are liable for their own failure to take steps to prevent and to investigate. (Gebser v. Lago Vista Independent School District (1998). Having a good policy in place, with detailed complaint procedures which are followed by all personnel, will diminish the likelihood of harm to students and liability to the school district.

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More good news is that a proper investigation can shield the school district and its administrators in student sexual harassment cases. Under federal law a school district is not liable for hostile environment sexual harassment unless:

1. the school district knew the harassment was occurring;

2. the harassment was occurring in a context subject to the school district’s control; and

3. the school district’s deliberate indifference caused students to undergo harassment or made the students vulnerable to it, particularly by failing to take immediate and appropriate corrective action once it learned of the harassment.

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This liability shield is available so long as the school district’s response to the harassment is “not clearly unreasonable in light of the known circumstances.” (Davis v. Monroe). What is meant by “not clearly unreasonable” is near anyone’s guess, but a lot of latitude will be given to the institution’s decision making.

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Check out the OCR's checklist for addressing sexual harassment.

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Same-Sex Harassment

On March 4, 1998, the Supreme Court of the United States issued its decision in the case of Joseph Oncale v. Sundowner Offshore Services, Inc., and answered the question whether same-sex sexual harassment is, in fact, discrimination under Title VII. The petitioner, Joseph Oncale, was an employee of the respondent, Sundowner Offshore Services, Inc.,working on an oil platform in the Gulf of Mexico. He was a member of an eight man crew. The evidence submitted to the Court established that on numerous occasions the men forcibly subjected him to sex-related, humiliating actions in the presence of the rest of the crew. Oncale was also physically assaulted in a sexual manner by a fellow employee and threatened by several of the crew members. He complained of this treatment to his supervisor, but no remedial action was taken. As a result, he left his employment , stating that he “voluntarily left due to sexual harassment and verbal abuse.”

On March 4, 1998, the Supreme Court of the United States through Justice Scalia rendered a unanimous decision holding that sex discrimination consisting of same sex sexual harassment is actionable under Title VII (and by inference Title IX). The Court held that Title VII’s language of “because of sex” protects men as well as women and that Title VII does not bar a claim of discrimination “because of sex” merely because the plaintiff and defendant, or the person charged with acting on behalf of the defendant, are of the same sex.

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Key Changes in Title IX Regulations Effective August 1, 2024

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• Definition of Hostile Environment: Changed from "severe, pervasive, and objectively offensive" to unwelcome sex-based conduct that based on the totality of the circumstances is subjectively and objectively offensive and is "sufficiently severe or pervasive" that it limits or denies a person's ability to participate in or benefit from the recipient's education program or activity.

• Expanded Jurisdiction: Institutions are responsible for addressing conduct off-campus or outside the country if it is contributing to the hostile environment.

• LGBTQ+ and Pregnancy/Parenting Protection: Expanded definition of sex discrimination under Title IX to include sexual orientation, gender identity, and protection for pregnant or parenting students and employees.

• Single-Investigator Model: Reintroduction of the single-investigator model for investigations.

• Grievance Procedures: Revised grievance procedures including steps to protect privacy, credibility assessment, and evidence standards.

• Retaliation Protection: Schools must prohibit retaliation and respond to retaliation claims promptly.

• Parental Rights: Support for parental involvement and protection of student privacy.

• Ongoing Discussions: Further considerations regarding transgender athletes' participation in sports.

 

While it is important to note the changes made in the 2024 Title IX Final Rule, just as importantly to note any complaint in which the incident happened prior to August 1, 2024, that process must follow the 2020 Title IX Final Rule procedures.

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