Author Archives: ssais

Comment on ED’s proposed amendments to Title IX regulations

During the 60-day comment period that ended January 30, 2019, individuals and organizations submitted over 100,000 comments in response to the Department of Education’s proposed rules regarding sexual harassment and Title IX.

Below is an excerpt from the SSAIS comment, which focused on the deleterious effects of the proposed rules on K-12 students.

Kenneth L. Marcus
Assistant Secretary for Civil Rights
Department of Education
400 Maryland Avenue SW
Washington DC, 20202

Re: ED Docket No. ED-2018-OCR-0064, RIN 1870-AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.

Dear Mr. Marcus,

On behalf of the national nonprofit Stop Sexual Assault in Schools (SSAIS) I wish to voice our organization’s strong opposition to the proposal by the Department of Education (the Department) to amend rules implementing Title IX of the Education Amendment Act of 1972 (Title IX), as published in the Notice of Public Rulemaking (NPRM) on November 29, 2018.

For the past four years, SSAIS has been educating K-12 students, families, and schools about the right to an equal education free from sexual harassment. We hear regularly from students and families across the country how their schools have mishandled sexual harassment complaints. These first-hand accounts paint an alarming and disturbing picture of traumatized young students whose educations have been derailed because school officials ignore, deny, or mismanage reported sexual misconduct.

I also speak from personal experience. Our family’s life was devastated when our high-school age daughter was sexually assaulted by a classmate on a multi-day school field trip. Her school’s failure to recognize her federally mandated Title IX rights, to acknowledge her report of sexual assault as required, to promptly and equitably investigate, to prevent retaliation, and to treat her with basic human dignity has been life-scaring beyond imagination. Our efforts to hold those accountable were met with avoidance, denial, misinformation, falsification, and violations at every juncture.

From our family’s and organization’s experience, we believe the proposed rules will further harm K-12 students who report sexual harassment to their schools and discourage victimized students from coming forward. As explained in our analysis below, the result of the proposed rules on K-12 students will be to worsen sex discrimination in K-12 schools, precisely in contradiction to the spirit of Title IX.

Read the complete comment.

Why the proposed changes to Title IX regulations matter to K-12 schools

An original version of this piece appeared in Ms. Magazine Blog as Speaking Up for Survivors in K-12 Schools. This blog also appeared in Education Post as DeVos Is Planning to Rollback Guidelines That Protect Students From Sexual Assault.

As the parent of a high school sexual assault survivor, I’ve seen how pervasive sexual harassment and assault in our K-12 schools can shake entire communities. That’s why I’m sounding the alarm about the Trump administration’s attempt to roll back Title IX guidelines for sexual misconduct.

National surveys show that most students will experience some form of sexual harassment during their elementary and secondary school years—yet most K-12 schools are not well-prepared to respond appropriately when they learn that a student has sexually harassed or assaulted a peer, or that a teacher sexually abused a student. The Department of Education’s proposed changes to Title IX regulations will only make the problem worse, increasing barriers for students and families reporting sexual harassment and confuse school officials who already lack clear guidance on how to respond appropriately.

Until now, the department followed court precedent—defining sexual harassment as “unwelcome conduct of a sexual nature.” Education Secretary Betsy DeVos’s proposed changes, however, require schools to take action only when harassment is “so severe, pervasive and objectively offensive” that it denies a student access to the school’s educational program. (No guidance was offered as to what “severe” and “objectively offensive” harassment looks like in elementary, middle, or high school.)

These new rules would force school districts to navigate competing definitions of sexual harassment from state law and existing district policies and complicate schools’ efforts to respond promptly and effectively to student complaints. This doesn’t just create obstacles for students and parents who want schools to take immediate action to remedy harassment—it allows schools to disregard sexual harassment complaints until they escalate to a subjective threshold, effectively empowering them to sweep inconvenient cases of harassment and assault under the rug indefinitely.

These new rules would force school districts to navigate competing definitions of sexual harassment from state law and existing district policies and complicate schools’ efforts to respond promptly and effectively to student complaints. This doesn’t just create obstacles for students and parents who want schools to take immediate action to remedy harassment—it allows schools to disregard sexual harassment complaints until they escalate to a subjective threshold, effectively empowering them to sweep inconvenient cases of harassment and assault under the rug indefinitely.

The proposed regulations also require schools to have “actual knowledge” of peer sexual harassment—meaning that misconduct must be reported to a Title IX coordinator, teacher or unspecified school official who can take “corrective action.” That means that if a middle school student told a coach or school nurse that they were sexually assaulted by a peer, their administration would not be required to take Title IX action, because the “right” person wasn’t notified. Teachers would also have no authority to address a student’s report of sexual harassment by another teacher.

The new rules also reverse previous guidance that required schools to address the effects of off-campus sexual assault or cyber sexual harassment if and when they interfere with a student’s opportunity to an equal education—meaning that even if a student sexually assaulted by a peer at a friend’s house sees their assailant every day at school and endures taunts and threats from the perpetrator’s friends in person or electronically, the school could disregard the sexual harassment complaint because it didn’t take place on school grounds.

This creates potential complications in jurisdictions where all school staff are mandatory reporters. In these schools, the coach or nurse must notify either law enforcement or child welfare agency of possible child abuse, creating scenarios where the school does not officially recognize that sexual assault occurred, even while public safety organizations are put on notice of possible child endangerment.

Many K-12 students and parents complain that when they inform school officials about sexual harassment or assault, there’s no immediate response or action taken. Whereas previous guidance from the Department of Education recommended that schools complete their Title IX investigations within 60 days, the Trump administration’s new rules mandate only that such investigations be “reasonably prompt” and permit schools to postpone investigations until completion of “law enforcement activity,” which might extend for months. Meanwhile, as schools take no action, students reporting sexual harassment might continue to experience retaliation and other forms of re-victimization that prevent them from keeping up academically and participating in school activities.

Although previous guidance considered mediation inappropriate, because it would likely re-traumatize the reporting student, the Trump administration’s proposed Title IX changes would permit K-12 schools to resolve formal sexual harassment and assault complaints through alternative resolution procedures. Under the new rules, school officials could pressure a reporting student in elementary school to agree to an informal resolution, allowing a district to forgo its duty to conduct a Title IX investigation and obligatory mediation could frighten young students from reporting sexual harassment by peers and school staff.

The Department of Education has attempted to justify these proposed changes to Title IX as clarifying regulations and saving schools money spent investigating complaints—insinuating that it is too burdensome and costly for schools to ensure students’ civil rights to an education free from sex discrimination, and that the solution is to make it easier for schools to deny and delay responding effectively.

Yet even that excuse falls short. It’s not clear at all how much the proposed regulations would offer regulatory relief or cost savings, and schools would wrestle with untangling the new Title IX rules from state non-discrimination laws and existing district policies—which, for the most part are consistent with previous Title IX guidance. In the end, schools could still be sued for violating state non-discrimination statutes and tort laws.

Betsy DeVos and the Trump administration are taking precisely the wrong approach. The solution to K-12 schools mishandling sexual harassment complaints isn’t regulatory, but educational. The department should offer school districts training and technical assistance, amplifying its 2001 guidance, which addressed due process, freedom of speech, confidentiality, and proactive measures as they apply to Title IX. Instead, they’re bailing administrators out of their responsibility to keep students safe in school.

It’s imperative that all school staff have training on fair and effective Title IX guidance so we can stop the cycle of sexual harassment and violence—in K-12 schools, colleges, the workplace and beyond.

The Department of Education’s comment period on the proposed Title IX regulations has been extended to January 30, 2019. Click here to learn more and speak up for survivors.

You can also visit handsoffix.org to comment.

Combating K-12 Sexual Harassment in 2018

In 2018 Stop Sexual Assault in Schools (SSAIS) continued directing national awareness to the sexual harassment epidemic in K-12 schools.

On New Year’s Day, SSAIS launched its #MeTooK12 campaign to promote awareness and inspire action to counteract pervasive sexual harassment and sexual violence in K-12 schools. Approximately 50 media articles reported on the campaign, including Education Week, The Washington Post, New York Times, Christian Science Monitor, Ms. Magazine, and Teen Vogue. Now This Her dedicated an entire video to the SSAIS #MeTooK12 initiative and activists.

SSAIS partnered with experts to create new resources to combat K-12 sexual harassment, including You Can Become the Agent of Change for Title IX Policies in Your SchoolsExposing a Sexual Abuse Scandal at a Private School, and How to File a Title IX Complaint in K-12 Schools. The National Women’s Law Center, partners in the #MeTooK12  launch, also created new resources.

SSAIS also participated in the American Federation of Teachers #MeTooK12 keynote webinar, and made its curated list of #MeTooK12 resources available to the American Federation of Teachers Share My Lesson library.

Also this year, SSAIS:

  • Expanded its work on the rights of private school families after discovering that Betsy DeVos’s high school alma mater violated Title IX.
  • Created Ending K-12 Sexual Harassment: A Toolkit for Parents and Allies. This toolkit helps parents find out what their schools should be doing to end sexual harassment and provides concrete steps communities can take to promote transparent and effective policies, Title IX compliance, and sustainable school culture change.
  • Launched Students Against Sexual Harassment (SASH), the student activist arm of SSAIS.
  • Formed the Coalition Against Sexual Harassment K12 (CASHK12), an online resource for advocates to exchange information. (Contact SSAIS to join.)
  • Created a #Hands Off IX web resource to combat the regressive proposals to weaken Title IX in K-12 schools.

With SSAIS urging, Oregon Senator Ron Wyden cosponsored the Patsy T. Mink and Louise M. Slaughter Gender Equity in Education Act of 2018. This legislation would provide additional resources for schools, school districts, and states to fully implement the Patsy Mink Equal Opportunity in Education Act (aka Title IX).

SSAIS also worked with members of the Oregon congressional delegation (Senator Wyden and Representatives Bonamici and Blumenauer) to submit a Freedom of Information Act request to the Department of Education Office for Civil Rights (OCR). The request asks OCR to produce findings from all investigations into K-12 sex discrimination complaints from the past five years and the mandated annual report for 2017.

SSAIS cofounder/Program Director Joel Levin participated in a Quora session on sexual harassment in K-12 schools.

We would like to thank all who donated to SSAIS this year. As an all-volunteer nonprofit, SSAIS relies on individual contributions to help continue our initiatives in the coming year. You can donate here.

We wish you a happy and fulfilling 2019. Join us in addressing sexual harassment where it begins, in K-12 schools.

SSAIS April Newsletter

April 28, 2018

It’s been an incredibly busy 2018 for SSAIS. Here are the highlights and new resources for you to explore.

#MeTooK12

The movement to address sexual harassment and assault in K-12  schools received new impetus with the launch of the #MeTooK12 campaign, an SSAIS initiative in partnership with the National Women’s Law Center. We unveiled the new hashtag on social media as #MeToo creator Tarana Burke rang in 2018 at Times Square. #MeTooK12 connects the dots between sexual harassment in K-12 schools, college, and the workplace. The movement both promotes awareness and inspires action to counteract pervasive sexual harassment and sexual violence in K-12 schools.

Over 35 TV, radio, print, and online media reports feature the new SSAIS initiative, including The Washington Post, The New York Times, Christian Science Monitor, Teen Vogue, and more.

Ms. Magazine published “#MeTooK12: Teens are Speaking Out About Assault and Harassment in Schools,” by SSAIS teen advisor Minnah Stein. Education Post published SSAIS advisor Michelle Seyler’s “I Was Sexually Abused by Another Student and It Never Should Have Happened.” Advisor Chellie Labonete’s tweets appear in many media reports, and the SSAIS Co-founders contributed to several print and TV outlets. There’s also a Wikipedia entry on the #MeTooK12 campaign.

New resources are regularly added to the SSAIS #MeTooK12 webpage. One of our favorites is Susan Moen’s blog, “Parents: You Can Become the Agent of Change for Title IX Policies in Your Schools.”

Visit the #MeTooK12 webpage and #MeTooK12 Facebook page for the latest postings.

New Free SSAIS Toolkit 

SSAIS has just released a new online toolkit and PSA for parents, students, and their allies to address K-12 sexual harassment and assault. Share it widely.

SSAIS Delves into Students’ Rights at Private Schools

SSAIS announced that a survivor’s family filed an important Title IX lawsuit against U.S. Education Secretary Betsy DeVos’s alma mater, Holland Christian School. The lawsuit resulted after the family contacted SSAIS and learned about their Title IX rights. Watch the short SSAIS video to learn what this case means for all students.

SSAIS created a new webpage to inform K-12 private schools families about their Title IX rights. It includes an important blog, Private K-12 Schools and Title IX, and a video created especially for SSAIS by the parents of Chessy Prout, the survivor of the St. Paul’s School rape, which received international attention.

New Resource on How to File a Title IX Complaint

SSAIS collaborated with Dr. Bill Howe to create the guide How to File a Title IX Complaint in K-12 Schools: A Guide for Parents and Guardians. It’s for those wanting to file a complaint regarding sexual harassment, sexual violence, sex discrimination, and other violations of state and federal civil rights laws regarding gender discrimination.

American Federation of Teachers Virtual Conference Keynote Session

SSAIS joined The National Women’s Law Center and Planned Parenthood to present a keynote session at the American Federation of Teachers Share My Lesson annual Virtual Conference. Watch the recorded session #MeTooK12 and #MeToo: What does it mean for schools? (free registration required).

Supporting Families

SSAIS continues to help families whose schools have violated their right to an education free from sexual harassment and assault.

We recently focused on the case of high school freshman Katlin Hoffman in North Carolina. We connected her with a journalist who profiled her case in an article titled “This girl reported being sexually assaulted twice at her high school. Her principal told her to ‘toughen up’ and get over it.” FOX 46 television in Charlotte interviewed SSAIS about Katlin’s case.

SSAIS in Wikipedia

SSAIS now has its own Wikipedia entry.

Support SSAIS

Everyone at SSAIS is a volunteer, so 100% of your tax-deductible donation goes to free education programs. Every contribution in any amount counts. Thank you!

The Civil Rights Lawsuit Against Betsy DeVos’s High School Alma Mater: What It Means For Every Student

by Esther Warkov, Executive Director, SSAIS

There are phone calls a parent never wants to get. We received one such call, informing us that our daughter had been raped on a school field trip. Living through the nightmare of the rape and its aftermath was devastating, but equally traumatic was the fallout we experienced when the school failed to uphold our daughter’s civil rights under Title IX.  Like countless families, we became victims of “institutional betrayal,” as I describe in Why We Need Title IX to Let Her Learn: A Parent’s Perspective. Little did we know our experience would later provide an opportunity to educate the US Secretary of Education, Betsy DeVos, about the violation of Title IX in her own alma mater, Holland Christian School, and to explain why this lawsuit is so important for all students.

As secondary victims of our daughter’s assault, we parents have come full circle: we are empowered advocates, educating families about their rights under Title IX, the civil rights law we knew little about when we needed it the most. Our understanding of Title IX now likely exceeds that of US Education Secretary Betsy DeVos. It’s both ironic and telling that parents who were once victims are obliged to call out Betsy DeVos’s alma mater for violating Title IX.  Although we deplore the weak level of Title IX enforcement in both public and private schools, we take satisfaction in the opportunity to use this case as a “teachable moment.”

Today, we announce the lawsuit against Holland Christian School and explain what this means for millions of public and private school students. Learn why in short video The Civil Rights Lawsuit Against Betsy DeVos’s High School Alma Mater. Read the video transcript here.

How to File a Title IX Complaint in K-12 Schools

A Guide for Parents and Guardians

By Dr. Bill Howe with Stop Sexual Assault in Schools (SSAIS.org)

Dr. Howe was the Connecticut State Title IX coordinator for 17 years. He maintains a website on Title IX.

 

This simple guidance for parents and guardians explains how to file a complaint with your school district regarding sexual harassment, sexual violence, sex discrimination, and other violations of state and federal civil rights laws regarding gender discrimination. Some of this guidance also applies to educational programs (e.g. museum, science center) or private schools, if they receive federal funding from any source (e.g. Department of Education, Department of Agriculture, etc.).  All public and private schools that receive federal funding must follow the federal civil rights law Title IX, which protects students from the impact of sexual harassment and assault on their education.

The following information should not be construed as legal advice.

  1. Make sure that your school or educational program is required to follow state and federal civil rights laws. Under federal law, any educational entity that receives even one dollar of federal financial support must abide by Title IX and other federal civil rights laws. Do not let schools argue that since “they do not receive Title IX money” they do not have to obey the law. For example, schools (public or private) must follow Title IX under these circumstances:

— The school receives public school district funding. Public school funds, state funds, and federal funds are commingled. Therefore, acceptance of public school district funding or state funds is essentially the same as receiving federal funding.

— If any student in your school receives grants, scholarships, or loans through the school district or through the state, that is federal funding.

— If the school receives any state funds, then the school is bound by state civil rights laws, which most likely include anti-discrimination laws such as sex discrimination and sexual harassment.

— The private school receives federal funds, such as Title I, from any number of federal agencies, such as the National Science Foundation, Department of Education, Department of Agriculture, etc.

To find out if a private school receives federal funding or how to file a complaint if it does, see Title IX and Private Schools.  If your private school is one of several within an organization or diocese and even if only one school accepts federal money, Title IX applies to all schools in the organization or diocese. Learn more.

Students in parochial schools are generally not protected by state and federal civil rights laws if the schools do not accept state or federal funding. Complaints would go to the archdiocese office. However, if the complaint involves sexual assault, it could be a criminal matter that falls under police jurisdiction. Or it could be a child welfare issue, which should then also be reported to the state children welfare agency.

If your private school receives federal funding through federal agencies other than the U.S. Department of Education, such as the Department of Agriculture, it still must follow Title IX.  Learn more.

  1. Upon finding out that a violation as occurred, determine if the child has been physically injured and if so seek medical treatment. If a sexual assault has occurred, consider preserving evidence by immediately following these steps:

* Reassure the child emotionally.

* Gather all facts immediately. Write them down in detail. The chronology (order of events) is important. Ask:

— Where did this take place?

— What time was it?

— Who was the perpetrator? How does the child know the perpetrator?

— Were there any witnesses? Get their names.

— What was the offensive behavior? Why does the child think this occurred?  

— Were there any conversations at the time of the incident? Describe them.

— Where were people positioned? Draw a picture illustrating where the offense occurred.

— Were any adults notified of the incident? Get their names.

  1. Review the school’s policies and procedures regarding Title IX and violence. Title IX requires that schools have written policies and procedures in the student handbook. The Title IX Coordinator’s contact information should appear in the student handbook. If it doesn’t, call the district and find out who the Title IX Coordinator is.
  1. Call the person identified in the student handbook who is responsible for sexual harassment and assault. If a person cannot be reached, contact the school principal. If no one can be reached, leave a voice message and follow it up with an email indicating you have an urgent report of the civil rights violation and possible criminal action.
  1. When you reach the person in charge, make sure you get their name, title and other contact information. Reading from your notes describe exactly what your complaint is. Let the school official know that you believe that this incident is possibly a civil rights and criminal violation. Cite Title IX. Also, if your child is a special needs student, has a disability or may have been targeted because of race, religion, national origin indicate that these are also possible violations. Some federal civil rights in education laws are:

— Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq) prohibits sex discrimination in education and in employment situations that receive federal financial assistance.

— Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in all programs or activities that receive federal financial assistance.

— Section 504 of the Rehabilitation Act of 1973 prohibits discrimination based on disability in all programs or activities that receive federal financial assistance.

— Individuals with Disabilities Education Act (IDEA) governs the equal treatment and education of special education students.

— Matthew Shepard & James Byrd, Jr. Hate Crimes Prevention Act of 2009 gives the Justice Department the power to investigate and prosecute bias-motivated violence by providing the Justice Department with jurisdiction over crimes of violence where a perpetrator has selected a victim because of the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

  1. Write down what the school official says. Ask the school official how they plan to proceed. Get a commitment for a follow-up call. Follow up conversations with a written summary to the school.
  1. Get confirmation from the school official that there will be no retaliation against your child. There should be a statement in the student handbook that says so; it might be helpful to cite the page number. Get a written commitment from the school for a safety plan to ensure that your child will not be at risk during the investigation.
  1. Consider enlisting the help of a victim’s advocate or rape crisis organization to serve as an intermediary. Get confirmation from your school that your child will have permission to leave the classroom and seek the school counselor or other designated adult as needed.
  1. It is the school’s responsibility to notify law enforcement and the child welfare agency, if they deem it appropriate. School staff are mandated reporters and required to report sexual assault. You may also do so yourself.
  1. Allow the school district time to investigate your complaint and reach a conclusion. Often the timelines are in the student handbook. The U.S. Dept. of Education Office for Civil Rights (OCR) once considered 60 days a reasonable time for a school to complete an investigation, however that guidance has been rescinded. Many feel that this is far too long. A prompt investigation is critical. Law enforcement may ask the school to wait to complete its investigation, but this should not be an unreasonable amount of time.
  1. You may ask for proof that the person conducting the Title IX investigation has been trained in Title IX. Training is a federal requirement (see Cape Cod Community College, OCR Case No. 01-93-2047).
  1. While you notify the school, you also have the right to file a complaint with OCR. OCR generally wants to give the school sufficient time to conduct the investigation, but if they feel that the investigation is not progressing in a timely manner, you may press OCR to act.
  1. You may also file a complaint with the state civil rights commission and the state Department of Education. The state civil rights commission may decline to begin an investigation if OCR has already done so. At the same time, OCR most likely will not act if the state civil rights commission has already begun an investigation. OCR will most likely not act if you have contacted an attorney and begun private litigation. You can file the complaint with OCR within their 180-day limit. They may close the investigation if other agencies are investigating, but they may revisit the complaint once you have exhausted other complaint pathways. Keep in touch with OCR to determine your deadline for resubmitting.
  1. If the school investigates and concludes that there was no violation, ask what the appeal process is for the school district. Sometimes, schools will include a policy on appeals in the student handbook; sometimes they will not. Some schools may not have any appeal process.
  1. In high-profile cases, or in cases in which the alleged perpetrator is a school official, the school may hire a so-called “independent investigator” to conduct investigation. Try to vet this independent investigator to ensure that they are indeed unbiased and have no conflict of interest with the school district. For example, if the “independent investigator” is regularly hired by the district, they might not want to jeopardize future jobs by determining that the district was at fault.
  1. If the perpetrator is a certified teacher or administrator, you may have rights within your state to file a complaint with the state education agency and ask that their teaching credentials be revoked. This is usually done through the state education agency’s legal office.
  1. Even if the local law enforcement agency finds that there was no criminal action, that does not mean that there was no Title IX violation. Title IX is about protecting the student’s education from discrimination based on sex; it does not necessarily seek to determine whether a crime occurred. Similarly, a child welfare agency may find no violation of child welfare laws but there may still be a violation of Title IX. Most states have parallel (similar) state laws to Title IX.
  1. If the school investigation finds that you have no grounds for your complaint, you could proceed with a complaint with OCR or the state civil rights commission but generally only if you can prove that there were procedural errors, such as the person conducting the investigation was not trained in Title IX or that the school failed to follow its stated policies and procedures. At this point, you may want to consult an attorney to consider private litigation.
  1. The Family Educational Rights and Privacy Act (“FERPA”), generally prevents the disclosure of confidential information about other students. However, the U.S. Department of Education has ruled that in Title IX cases, parents have the right to know the outcomes of the investigation and the punishment given to the perpetrator. This is a very contentious issue since schools have been traditionally warned not to disclose any confidential information. Sometimes school districts will disclose your personal information accidentally or as retaliation. If this occurs, collect proof and file a FERPA complaint.
  1. Determine what you want to happen as a result of an investigation. In civil rights terminology the question is “how can we make the victim whole again?” Some things that you may want to consider for your child are:

— An opportunity to retake tests that were missed because of the incident.

— An extension to make up work to receive credit for the class after the end of the term.

— Tutoring for your child to help them make up for lost schooling and lowered grades.

— Payment for summer school to help your child get caught up in school.

— Reimbursement for out-of-pocket medical expenses because of the incident.

— Payment for counseling services for your child. You could ask the same for the perpetrator.

— You may ask for a safety plan to ensure that the perpetrator will not have any contact or share classes with your child. This may not be possible in small schools, but the perpetrator can be made to take coursework online or at another school.

— Protection against retaliation.

In addition, you could request that:

— The Title IX Coordinator receive training or advanced training.

— All faculty and staff be trained in Title IX, other civil rights laws, policies and procedures.

— All students receive additional lessons in proper school conduct, specifically in sexual harassment.

— All faculty and staff be trained by professionals to take complaints of sexual harassment and assault compassionately and effectively.

— The district review and update school policies, the employee handbook, and the student handbook.

  1. Filing Title IX complaints with other federal agencies. OCR only handles Title IX complaints where schools have received federal funds through the U.S. Department of Education. If your private school receives money from another federal agency, such as the Department of Agriculture, file the complaint through that agency. Follow these instructions.

To work in partnership with your school district to improve Title IX Compliance, see Parents: You Can Become the Agent of Change for Title IX Policies in Your Schools.

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Title IX and Private K-12 Schools

by Christine Garner, with input from Bill Howe and SSAIS.

This FAQ is about Title IX and private K-12 schools. It is not intended as definitive legal advice. We recommend that you contact an attorney to review your specific situation. The Department of Education’s Office for Civil Rights (OCR) continues to change its guidance. This information is based upon guidance provided prior to March 10, 2018.

Is a private K-12 school required to comply with Title IX?

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 education program or activity receiving federal financial assistance.”  If a private school receives any federal financial assistance then it must comply with Title IX, unless the school has a legitimate religious exemption (see below).

The courts have ruled that even if one department of a school receives federal financial assistance, the entire school must abide by Title IX.  If a private school is part of an entity with more than one school, then all schools within the entity must adhere to Title IX, even if only one of the entity’s schools receives federal financial assistance.

Does a private religious school have to comply with Title IX?

If a private religious school accepts federal financial assistance, then it is required to comply with Title IX. A religious school can claim an exemption from Title IX requirements that it believes would be inconsistent with its religious tenets. Religious schools may apply to the Department of Education for exemptions to Title IX requirements, but a school is not required to file a written claim for an exemption to be valid.  The school can raise the religious exemption in response to a Title IX complaint.

The most common religious exemptions apply to sports, pregnant students, or LGTBQ rights. It is difficult to envision a valid religious tenet that would exempt a school from having to address sexual harassment or sexual assault.  If a religious school claims an exemption, you could still file a complaint, and OCR will decide if the exemption is valid.

What qualifies as federal financial assistance?

The Department of Justice (DoJ) defines federal financial assistance as “the award or grant of money.” The DoJ definition continues:

However, federal financial assistance may also be in nonmonetary form… [F]ederal financial assistance may include the use or rent of federal land or property at below market value, federal training, a loan of federal personnel, subsidies, and other arrangements with the intention of providing assistance. Federal financial assistance does not encompass contracts of guarantee or insurance by the federal government. It is also important to remember that not only must an entity receive federal financial assistance to be subject to Title IX, but the entity also must receive federal assistance at the time of the alleged discriminatory act(s) except for assistance provided in the form of real or personal property. In this situation, the recipient is subject to Title IX for as long as it uses the property.

Private K-12 schools usually receive financial assistance from the Department of Education, the Department of Agriculture, or the Department of Health and Human Services.  Private schools might also receive financial assistance from other federal agencies.

If a student or teacher at a private school receives Title I or special education services from a public school, does that mean the private school is a recipient of federal financial assistance?

Title I of the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA) require public school districts to provide eligible students with special education resources and also to provide “equitable services” to eligible children in private schools. If a private school student or teacher receives “equitable services” from a public school, that does not mean that the private school is a recipient of federal financial assistance.  Department of Education policy does not consider services provided to private school students or teachers under ESEA Title I or IDEA as federal funds given to the school.

How do you know whether your private school receives federal financial assistance?

First, ask the private school administration if they receive federal financial assistance. The school should know because they are required to sign an Assurance of Compliance prior to receiving the funds. The assurance of compliance states only that the school “assures” the federal agency that the school complies with Title IX and the other federal civil rights laws. The signed assurance of compliance does not mean the federal agency has audited to see if the school is truly in compliance.

If the school refuses to answer or you do not trust their answer, you can search USAspending.gov (see instructions below) or the Federal Audit Clearinghouse. These databases show the federal financial award amount and the agency that provided the money. Even if the school does not appear in one of these databases, it still might receive federal financial assistance.

If you cannot verify whether your private school receives federal financial assistance, you can still file a Title IX complaint with OCR, and they will determine if the school receives funds from the Department of Education. It’s best to consult with an attorney first to determine the best course of action because you can lose valuable time waiting for a determination from OCR.

If my private school does receive federal financial assistance, how do I a file complaint under Title IX?

If you are not able to resolve your complaint with the private school, you can file a lawsuit or file a complaint through the civil rights department of the federal agency that provided the school with financial assistance. The three most common sources of federal financial assistance to private K-12 schools are the Department of Education, the Department of Agriculture, and Department of Health and Human Services.

Here are the links to file complaints:

OCR sets the standard for review of a Title IX complaint, even if another federal agency is processing that complaint. If a private school receives funds from more than one federal agency, you only need file a complaint with one agency. It’s preferable to file a complaint through the Department of Education if your school receives funds from the Department of Education.

When must I file my Title IX complaint?

You must file a Title IX complaint within 180 days of the latest occurrence of the discrimination.  If you filed a complaint through your school’s grievance process and you feel your Title IX rights were violated, you can file a complaint with OCR within 60 days after the last act in the school’s grievance process. OCR sometimes grants a waiver of the 180-day filing period, but it’s best to submit your complaint within that time frame. Because discrimination can be ongoing, discuss your filing deadline with an attorney as soon as you discover the discrimination.

What if my private school isn’t required to comply with Title IX?

You do not need to rely only on Title IX to prove sexual harassment and sexual assault are wrong. Even if your private school is not required to comply with Title IX, you can still demand that it address these issues and live up to Title IX standards. If a student is a victim of sexual assault at a private school, the action is still wrong and the school should respond to protect and help the victim. Depending on the facts, a private school might be liable for breach of contract, negligent supervision, or some other legal theory that would be best discussed with an attorney.

As noted in the Assurance of Compliance, schools must also comply with other civil rights laws and an incident could violate more than one law. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin. Discrimination based upon disability is prohibited by Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. Age discrimination is prohibited by the Age Discrimination Act of 1975.

Most states have their own anti-bullying laws. These statutes define bullying in different ways. Check with an attorney about whether a private school must comply with anti-bullying laws in your state.

In conclusion, if a student has been a victim of sexual harassment, do not give up. You have the right to demand protection and help from your private school.

Legal disclaimer



Instructions on how to conduct a search on the USA Spending website:

  1. Browse to USAspending.gov advanced search webpage.
  2. On the left side, in the Filters box, under Time Period, select All Fiscal Years.
  3. In the Filters box, click Award Type, and select all of the categories (Contracts, Grants, Direct Payments, Loans, and Other).
  4. In the Filters box, click Recipient, and in the Recipient Name search box, enter the name of the school or portion of the name, and then click the search icon (magnifying glass).
  5. Scroll to the top or to the bottom of the Filters box, and then click Submit Search.
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SSAIS raises awareness of the detrimental effects on students of DeVos Title IX guidance rescission

In a strongly worded letter to Department of Education Secretary Betsy Devos, the National Coalition for Women and Girls in Education (NCWGE) opposed “any effort by this administration to repeal, replace, or modify any of Title IX’s regulations or guidance documents” that were open for public comment.

Stop Sexual Assault in Schools (SSAIS.org), one of 30 national NCWGE member organizations, is spearheading awareness of the potential negative effects on K-12 students of rescinding Title IX-related guidance and any weakening of the Department’s oversight and enforcement role.

The NCWGE is a national nonprofit that educates the public about issues concerning equal rights for women and girls in education. SSAIS contributed to the recent NCWGE publication Title IX at 45: Advancing Opportunity through Equity in Education.

 

We Can’t Wait: Solutions to K-12 Sexual Harassment and Assault

Originally appeared in the Huffington Post

Sexual harassment and assault are forms of sex discrimination and they occur at alarming rates in K-12 schools. Recent reports like “Hidden horror of school sex assaults revealed by AP” and “Ending Sexual Harassment and Assault: Effective Measures Protect All Students” confirm just how rampant these problems are. The attention afforded to transgender students’ rights should also prompt us to broaden our understanding of sex discrimination, a serious problem for all students. Students’ civil rights are violated daily because schools are failing to fulfill their responsibilities under Title IX, a federal civil rights law.

Researchers, national gender equity organizations, and the CDC have provided sufficient data to demonstrate how sexual harassment and assault negatively impact K-12 students. Yet the public remains in the dark because these violations are under-reported by students, who have been forced to normalize sexual harassment, and by schools guarding their reputations. It’s not surprising that national studies show a glaring discrepancy between the small number of schools reporting incidents of sexual harassment and the large number of students saying they experience it.

Sex discrimination, sexual harassment, and sexual assault are community problems. Research shows that the majority of teenage students have been affected by peer sexual harassment but rarely seek help. Because schools frequently discount or dismiss reports of sexual harassment or assault, students are discouraged from reporting; many of these victims become perpetrators of sexual harassment. By failing to properly address sexual harassment, schools foster a climate where sexual harassment and assault occur. Sexual violence on college campuses and sexual harassment in the workplace occur because students are afforded ample opportunity to practice these behaviors in their formative years.

Title IX prohibits sex discrimination in federally funded educational programs. But few families understand the broad protections the law affords beyond ensuring equal athletic opportunities. After our tenth grader was raped on a high school field trip, we also had no idea that Title IX required the school to take specific actions. The nightmare of sexual assault was exacerbated by the school’s failure to implement Title IX. By the time we learned of our daughter’s rights it was too late for the required prompt and equitable investigation; by then the school district had acquired “alternate facts.” Betrayed by our school, we brought a US Department of Education investigation to the Seattle school district. Using the national attention our case received, we spearheaded a national movement to educate the public about sex discrimination in K-12 schools. From our work with families across the country and national gender equity organizations, we cannot overemphasize the urgent need for Title IX compliance.

With the Trump administration and Department of Education leadership, we cannot expect vigorous Title IX enforcement from the Department’s Office for Civil Rights (OCR). Since we can’t count on federal oversight we must compel compliance through community engagement. The solution requires a massive grass roots education effort to inform families, schools, and local organizations about schools’ responsibilities, students’ Title IX rights, and recourses when schools fail, we told the Washington Post last year.

To fill this need, the national nonprofit Stop Sexual Assault in Schools created comprehensive free education for the K-12 audience, Sexual Harassment: Not in Our School! The streaming video and action plan model a collaborative effort where students work alongside parents and community organizations to create Title IX compliant schools. It follows a high school gender equity club strategizing to address sex discrimination, interviewing nationally recognized education, legal, and LGBTQ experts, and learning from counselors, advocates, parents, and peers. In one enlightening scenario, students watch San Francisco Unified’s Title IX Coordinator, attorney Keasara Williams, properly address a parent-actor’s complaint—an important model for Coordinators who remain largely untrained. One student concludes that, “When we make change at school, we’re changing society too.”

When the school and local community implement the recommended actions, they will reduce the traumatic effects of sexual harassment and assault, ensure better outcomes for students, and address behaviors that lead to sexual assault on college campuses and sexual harassment in the workplace. Sex discrimination, in its many manifestations, is the 21st century civil rights issue for students. In these uncertain times, we must arm communities with Title IX education now.

Related:

With Trump’s Title IX stance unknown, video aims to educate about sexual harassment at school

Film takes aim at national K-12 sexual assault, student rights

Sexual Assault: A 21st Century Civil Rights Issue

Sexual violence isn’t just a college problem. It happens in K-12 schools, too.

Read more

What You Missed at the “It Happened Here” Screening on USF Campus

by Minnah Stein, founder of EMPOWERU

Last night I attended the screening of It Happened Here on the University of South Florida (USF) campus. I was so excited to meet Marjorie Schwartz Nielsen (the documentary’s producer) and Kylie Angell (one of the film’s featured activists) so I could thank them in person for their amazing work. I did, and it felt pretty good.

I’ve shown the documentary to over 1,500 high school students in my county, and I know first-hand how impactful it is, how beneficial it is in starting this conversation, and how effective it is at educating students about the facts of sexual assault and their Title IX rights. Far from intimidating students, It Happened Here makes students feel empowered and hopeful. I could actually feel that in the audience at my screenings and in the theatre at USF last night.Read more

I was so happy to see a very large turn out of students – many of whom were boys. Yes! And, Crystal Coombes, Senior Deputy Title IX Coordinator for USF, was everything a college student could want in a Title IX coordinator. She made me hopeful colleges are finally starting to get it right. USF certainly seems to be on the right track.

For those of you who would also love the opportunity to meet Marjorie and Kylie, let me report that they are both powerful and kind women, and I wish you could meet them too. They truly care about this cause and want to crush it.

If you do too, join the fight! Host a screening of It Happened Here at your school. You can also get involved with Stop Sexual Assault In Schools and host a screening of their free educational video “Sexual Assault: Not At Our School!” that is set to be released soon.

Here are some of my favorite photos from the night. A HUGE thank you to Renee Hangartner, President of the Clinical Psychological Association at USF, for making the screening possible. She’s another amazing woman I had the pleasure of meeting last night!

Me being silly.

Kylie Angell, Minnah Stein, and Marjorie Schwartz Nielsen ready for the screening.

Marjorie Schwartz Nielsen, Kylie Angell, and Crystal Coombes answering audience questions.

Source: What You Missed at the It Happened Here Screening on USF Campus