Bullying and Cyberbullying: School District Duties According to OCR Teresa Combs, Kentucky School Boards Association

Presented at the 2016 School Law Seminar, April 7-9, Boston, Massachusetts The NSBA Council of School Attorneys is grateful for the written contributions of its members. Because Seminar papers are published without substantive review, they are not official statements of NSBA/COSA, and NSBA/COSA is not responsible for their accuracy. Opinions or positions expressed in Seminar papers are those of the author and should not be considered legal advice. © 2016 National School Boards Association. All rights reserved.

Bullying and Cyberbullying: School District Duties According to OCR Teresa T. Combs Director of Legal and Administrative Training Services Kentucky School Boards Association Bullying and Harassment and Government Overreach Since 1997, the U.S. Department of Education Office for Civil Rights (OCR) has issued a number of guidance documents on the topics of harassment and bullying in schools. While OCR recognizes there is no federal “bullying” law, it discusses bullying in terms of when it constitutes federally-protected-area harassment. Letter from Russlyn Ali, U.S. Department of Education, Assistant Secretary for Civil Rights, to Colleagues: Harassment and Bullying (October 26, 2010) pp.1-2. In 2001, following a U.S. Supreme Court case on the topic of peerto-peer harassment, OCR issued a document titled, U.S. Department of Education Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001) (2001 Sexual Harassment Guidance). The 2001 Sexual Harassment Guidance says it replaces the 1997 document on the same topic. Most recently, OCR released, in 2014 and 2015, several additional harassment guidance documents. In recent years, OCR takes the view that school districts must adhere not only to the Title IX regulations in the area of harassment, but also must adhere to OCR guidance documents in its policies, procedures, and implementation of Title IX investigations. This discussion compares the Title IX regulations and court opinions with guidance principles OCR has set out for school districts in various harassment and bullying guidance documents. The 2001 Sexual Harassment Guidance followed the first U.S. Supreme Court case recognizing a private cause of action for monetary damages for peer-to-peer harassment, namely, Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). In Davis, the Court ruled a school district may be liable for monetary damages if one student sexually harasses another student in the school’s program and the district’s response to the harassment has been “deliberately indifferent.” In the Davis case, the school district had no policies about peer-to-peer harassment. In Davis, the Supreme Court adopted the “deliberate indifference “standard from Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), a Title IX case of staff-to-student harassment. In Gebser, the Court held a school district can be liable for monetary damages if a teacher sexually harasses a student, an official who has authority to address the harassment has actual knowledge of the harassment, and that official is deliberately indifferent in responding to the harassment. Bullying Versus Federally-Protected-Area Harassment On October 26, 2010, OCR issued a Dear Colleague Letter (2010 Bullying Letter) about bullying in schools. The 2010 Bullying Letter says its purpose is to clarify the relationship between bullying and discriminatory harassment, and to remind schools that by limiting their responses to a specific application of an anti-bullying or other disciplinary policy, they may fail to properly consider whether the student misconduct also resulted in discrimination in violation of a student’s federal civil rights. Letter from Russlyn Ali, U.S. Department of Education,

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Assistant Secretary for Civil Rights, to Colleagues: Harassment and Bullying (October 26, 2010). That 2010 Bullying Letter states OCR has jurisdiction under Title VI of the Civil Rights Act of 1964 (Title VI); Title IX of the Education Amendments of 1972 (Title IX); Section 504 of the Rehabilitation Act of 1973 (Section 504), and Title II of the Americans with Disabilities Act of 1990 (ADA) (as amended). That letter says school staff have a duty to recognize and address a hostile environment situation even if no complaint is filed. OCR says, “Harassment creates a hostile environment when the conduct of a sexual nature is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” Letter from Russlyn Ali, U.S. Department of Education, Assistant Secretary for Civil Rights, to Colleagues: Harassment and Bullying (October 26, 2010) p. 2. A big focus of the 2010 Bullying Letter was that while school districts might deal with bullying under state law or local board policy, schools sometimes forget that if the conduct also constitutes harassment under federal laws like Title IX and Section 504, the district must complete the investigation and documentation pursuant to OCR’s guidance documents. Cyberbullying and Other Off-Campus Misconduct Generally, to impose discipline for off-campus conduct or cyberbullying, schools must find a nexus to the school environment. Thus, due to First Amendment and jurisdictional issues, schools must investigate such incidents carefully in order to address them through disciplinary measures. Courts, in addressing the issue of off-campus student misconduct, must balance the legal rights of the perpetrator of the bullying or harassment with the school’s interest in maintaining a school atmosphere free of substantial disruption. See Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960 (5th Cir. 1972) at 15. Thus, meeting the OCR mandate to address offcampus harassment or bullying in an attempt to make it stop is quite challenging. In a case where a student used a home computer to send messages to friends with a drawing suggesting the student’s eighth grade teacher be shot, although the message was not sent from a school computer, the court upheld the school discipline. See Wisniewski v. Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007). In Wisniewski, the student’s message was eventually brought to the attention of school authorities. While criminal authorities determined the message was intended as a joke and the student posed no threat, the court found the student should have reasonably foreseen the message would come to the attention of school authorities and create disruption within the school, and upheld the discipline. Compare this outcome to the outcome in J.C. v. Beverly Hills Unified School District, 711 F. Supp. 2d 1094 (C.D. Cal. 2010). In J.C., a federal district court ruled that the school’s suspension of a student who created a vulgar derogatory video about another student off-campus and posted it from her home computer on YouTube violated the perpetrator’s First Amendment free speech rights. The court did not find any evidence that the video either caused, or was reasonably likely to cause, a “material and substantial” disruption of the educational process. The perpetrator met students at a restaurant where she videotaped a conversation during which other students made vulgar and derogatory remarks about a third student. The evidence was students were not able to access YouTube or other social networking sites on school computers because they had been 2

blocked from such activity. School officials admitted students could access the video at school on their cellphones if they had internet capability. According to the evidence, maybe 15 students discussed the video at school. There was no evidence that this disrupted classroom activities. The court applied the Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), rules to determine whether there was a free speech issue. The court noted the Tinker substantial disruption standard applies to both on-campus and off-campus speech, noting the geographic origin of the speech is immaterial if the speech causes actual disruption at school. However, the court determined, “No reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, nor was there a reasonably foreseeable risk for substantial disruption as a result of the YouTube video.” The court also noted the video was not violent and did not contain threats. Compare this substantial disruption standard for off-campus misconduct to the requirements in OCR’s 2014 Questions and Answers document. In that document OCR says: A school must determine whether alleged off-campus sexual violence occurred in the context of an education program or activity of the school; if so, the school must treat the complaint in the same manner that it treats complaints regarding on-campus conduct. In other words, if a school determines that the alleged misconduct took place in the context of an education program or activity of the school, the fact that the alleged misconduct took place off campus does not relieve the school of its obligation to investigate the complaint as it would investigate a complaint of sexual violence that occurred on campus. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 29. OCR’s 2014 Questions and Answers document says that under Title IX, a school must process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity. However, to date in Kentucky, I have not seen OCR require this to be in local school board policy or procedure. OCR says: Even if the misconduct did not occur in the context of an education program or activity, a school must consider the effects of the offcampus misconduct when evaluating whether there is a hostile environment on campus or in an off-campus education program or activity because students often experience the continuing effects of off-campus sexual violence while at school or in an off-campus education program or activity. The school cannot address the continuing effects of the off-campus sexual violence at school or in an off-campus education program or activity unless it processes the 3

complaint and gathers appropriate additional information in accordance with its established procedures. U.S. Department of Education, Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 29. Bullying Effects on Students with Disabilities On October 21, 2014, OCR issued a Dear Colleague Letter (October, 2014, Dear Colleague Letter) that stated if a student with a disability is bullied under state law or board policy, or is harassed under a federally-protected area, this can also result in a free appropriate public education (FAPE) violation under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which must be remedied by the school district. Letter from Catherine Lhamon, U.S. Department of Education, Assistant Secretary for Civil Rights, to Colleagues: Bullying and Students with Disabilities (October 21, 2014) p. 2. The upshot of the October, 2014, Dear Colleague Letter regarding denial of FAPE due to bullying is that the investigator must communicate to the student’s individualized education program (IEP) team or Section 504 team when it is determined the student has been bullied or harassed so the team can consider whether remedial measures need to be put into the IEP or Section 504 plan. This means rather than administrators making a decision as to what measures the school district needs to take to remedy any ill effects of its finding of bullying or harassment, according to OCR this decision must be made by the Section 504 or IEP team. OCR takes the view that there are no hard and fast rules regarding how much of a change in academic performance or behavior of the child is necessary to show some adverse effect that must be remedied by the school due to bullying or harassment. The October, 2014, Dear Colleague Letter tells the school to look for a sudden decline in grades, the onset of emotional outbursts, an increase or intensity of behavioral interruptions, or a rise in missed classes or IDEA services. Letter from Catherine Lhamon, U.S. Department of Education, Assistant Secretary for Civil Rights, to Colleagues: Bullying and Students with Disabilities (October 21, 2014) p. 6. This proclamation from OCR about harassment and bullying triggering a school district’s obligation to put something into IEPs or Section 504 plans to address any problems the child has suffered in school due to the misconduct of another student has no basis in the IDEA or Section 504 regulations. Generally, the IDEA and Section 504 regulations direct the school district to provide specialized services and placement based on the child’s school-related problems that result from the child’s disabling condition. The bigger legal problem is the decisions of the IEP and Section 504 teams are subject to due process complaint procedures. Thus, if parents don’t like the remedy the team puts in the IEP or Section 504 plan, this can be challenged in a due process hearing. Thus, OCR has created a new area for parents to litigate as denial of FAPE under the IDEA or Section 504. Deliberate Indifference Standard In Vance. v. Spencer County Public Schools, 231 F.3d 253 (6th Cir. 2000), a student alleged she was repeatedly sexually harassed by other students during her middle and high school years, and that she continually reported the incidents to school officials. Plaintiff’s mother 4

alleged she also wrote letters to the principal on several occasions. Thereafter, the mother filed a Title IX court complaint on behalf of the student alleging the district’s failure to take appropriate action to address the alleged hostile environment created by her peers. The trial court denied the defendant school district’s motion for summary judgment and sent the case to a jury. The jury returned its verdict in favor of the plaintiff on all counts and awarded her $220,000 for the Title IX violations. Defendant appealed. While this action was being litigated, the U.S. Supreme Court handed down the Davis decision that said recipients of federal funds may be liable for damages under Title IX for peer-to-peer sexual harassment. The Sixth Circuit held the plaintiff established all three elements to support a sexual harassment claim and the appeals court affirmed the judgment. The court noted schools must respond to harassment in a manner that is reasonable. The Sixth Circuit noted the then-recent Supreme Court decision in Davis established that Title IX may support a private claim for damages for student-on-student sexual harassment when the plaintiff can demonstrate the following elements: (1) the sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment. Vance at 6. The Vance decision noted that the Davis case held that the deliberate indifference standard is met when the conduct of the school district officials is “clearly unreasonable in light of known circumstances.” Vance at 4. In another Sixth Circuit Court of Appeals case, Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009), the Sixth Circuit said whether the district officials were deliberately indifferent is a factual issue for a jury to decide. Purpose of the 2001 Sexual Harassment Guidance The 2001 Sexual Harassment Guidance states the revised guidance reaffirms the compliance standards that OCR applies in investigations and administrative enforcement of Title IX of the Education Amendments of 1972 (Title IX) regarding sexual harassment. The document further states: The revised guidance re-grounds these standards in the Title IX regulations, distinguishing them from the standards applicable to private litigation for money damages and clarifying their regulatory basis as distinct from Title VII of the Civil Rights Act of 1964 (Title VII) agency law. In most other respects, the revised guidance is identical to the 1997 guidance. Thus, we intend the revised guidance to serve the same purpose as the 1997 guidance. It continues to provide the principles that a school should use to 5

recognize and effectively respond to sexual harassment of students in its program as a condition of receiving Federal financial assistance. Federal Title IX Regulations The Title IX regulations are found at 34 C.F.R Pt. 106. They apply to recipients of federal funding. Recipient is defined in the Title IX regulations as: Any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee thereof. 34 C.F.R. § 106.2. The federal Title IX regulations generally provide for the following: (a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of such discrimination. (b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex. Nothing herein shall be interpreted to alter any affirmative action obligations which a recipient may have under Executive Order 11246. (c) Self-evaluation. Each recipient education institution shall, within one year of the effective date of this part: (1) Evaluate, in terms of the requirements of this part, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient’s education program or activity; (2) Modify any of these policies and practices which do not or may not meet the requirements of this part; and (3) Take appropriate remedial steps to eliminate the effects of any discrimination which resulted or may have resulted from adherence to these policies and practices. (d) Availability of self-evaluation and related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the Assistant Secretary upon request, a description of any modifications made pursuant to paragraph 6

(c)(ii) of this section and of any remedial steps taken pursuant to paragraph (c)(iii) of this section. 34 C.F.R. § 106.3. Actual Notice Versus Should Have Known Standards One of the first and most important “legal” standards that was enhanced through OCR guidance documents is in the area of actual notice versus “staff should have known.” In both the Gebser and Davis Supreme Court decisions, the Court held damages are not available unless a district official who has authority to institute corrective measures has actual notice. Gebser at 3; Davis at 4. OCR, in its 2001 Sexual Harassment Guidance, states it will hold districts responsible for not addressing harassment of which staff, in the exercise of reasonable judgment, should have known. In Gebser, plaintiffs, relying on standards developed in the context of Title VII, argued damages are available in an implied action under Title IX based on principles of respondeat superior and constructive notice, i.e., without actual notice to officials of discrimination in school programs. In response, the Gebser Supreme Court decision noted the Cannon v. University of Chicago, 441 U.S. 677 (1946), case held Title IX is also enforceable through an implied private right of action. However, the Court went on to say that while the Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), decision established that monetary damages are available in such an action, the Court “made no effort to delimit the circumstances in which that remedy should lie.” Gebser at 3. The Gebser decision said because the private right of action is judicially implied, the Court had to infer how Congress would have addressed the issue of monetary damages had the action been expressly included in Title IX. The Court said: It does not appear that Congress contemplated unlimited damages against a funding recipient that is unaware of discrimination in its programs. When Title IX was enacted, the principal civil rights statutes containing an express right of action did not allow monetary damages, and when Title VII was amended to allow such damages, Congress limited the amount recoverable in any individual case. Title IX was modeled after Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in programs receiving federal funds. Both statutes condition federal funding on a recipient’s promise not to discriminate, in what amounts essentially to a contract between the Government and the recipient. In contrast, Title VII is framed as an outright prohibition. Gebser at 3. The Court went on to say: When Congress conditions the award of federal funds under its spending power, the Court closely examines the propriety of private actions holding recipients liable in damages for violating the condition. It is sensible to assume that Congress did not envision a recipient’s liability in damages where the recipient was unaware of the discrimination. Title IX contains important clues 7

that this was Congress’ intent. Title IX’s express means of enforcement requires actual notice to officials of the funding recipient and an opportunity for voluntary compliance before administrative enforcement proceedings can commence. The presumable purpose is to avoid diverting education funding from beneficial uses where a recipient who is unaware of discrimination in its programs is willing to institute prompt corrective measures. Allowing recovery of damages based on principles of respondeat superior or constructive notice in cases of teacher-student sexual harassment would be at odds with that basic objective, as liability would attach even though the district had no actual knowledge of the teacher’s conduct and no opportunity to take action to end the harassment. It would be unsound for a statute’s express enforcement system to require notice and an opportunity to comply while a judicially implied system permits substantial liability — including potentially an award exceeding a recipient’s federal funding level — without regard to either requirement. Absent further direction from Congress, the implied damages remedy should be fashioned along the same lines as the express remedial scheme. Thus, a damages remedy will not lie unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination and fails adequately to respond. Moreover, the response must amount to deliberate indifference to discrimination, in line with the premise of the statute’s administrative enforcement scheme of an official decision by the recipient not to remedy the violation. Gebser at 4. Despite the plain language from the Supreme Court in Gebser and Davis, OCR’s 2001 Sexual Harassment Guidance and later guidance documents say the district is responsible for remedying harassment if a responsible school employee actually knew or, in the exercise of reasonable care, should have known about the harassment. This standard requires the district to hold its staff members accountable for exercising diligence if they have any clue from any source that harassment may be occurring within the school district’s jurisdiction. With this OCR standard in place, districts that do not train and discipline staff for failing to exercise such diligence are in dire peril of offending the OCR guidance standard. Thus, school district model harassment policies should contain language requiring all staff to report such activity to officials who have the authority to address it. Informal Complaint Resolution In the 2001 Sexual Harassment Guidance, OCR approves of informal avenues to address sexual harassment situations, but again extends its own requirement beyond the Title IX regulations language, saying an informal resolution is never permitted in a sexual violence situation. That section of the 2001 Sexual Harassment Guidance states:

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Grievance procedures may include informal mechanisms for resolving sexual harassment complaints to be used if the parties agree to do so. OCR has frequently advised schools, however, that it is not appropriate for a student who is complaining of harassment to be required to work out the problem directly with the individual alleged to be harassing him or her, and certainly not without appropriate involvement by the school (e.g., participation by a counselor, trained mediator, or, if appropriate, a teacher or administrator). In addition, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. In some cases, such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis. U.S. Department of Education, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001) p. 21. Note this is not addressed in the regulation, but OCR says this must be in district policy or procedure. 2008 Addition of Notification to the Victim of “Punishment” of the Harasser The 2008 Sexual Harassment: It’s Not Academic OCR document says the school must notify the victim, and his or her parents depending on the age of the victim, of the outcome of its investigation and of any “punishment” imposed that directly relates to the victim, such as an order for the harasser to stay away from the victim. Again, this requirement is not found in the Title IX regulations. Also note dictates of the Family Educational Rights and Privacy Act must be kept in mind. U.S. Department of Education, Sexual Harassment: It’s Not Academic (2008), Part Two: Responding to Sexual Harassment. I advise that policy makers be careful about placing too much information in the notice to the parties of the complaint outcome. I recommend check boxes that state, “The behavior complained of occurred”, or “There was not enough evidence to verify that the behavior complained of occurred.” Staff should not, in this document that goes to the parties to the complaint, try to label the conduct as harassment or write in commentary such as, “I don’t believe this was done maliciously”. Adding such conclusory statements is fodder for legal actions and further in-district appeals of the investigator’s statements. OCR’s Expansion of What It looks for During an Investigation The following principles for school districts to manage harassment situations in schools are from OCR’s 2001 Sexual Harassment Guidance. OCR said during an investigation it would look to see if the district had taken the following three (3) actions: (1) disseminated a policy prohibiting sex discrimination under Title IX and effective grievance procedures; (2) appropriately investigated or otherwise responded to allegations of sexual harassment; and

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(3) has taken immediate and effective corrective action responsive to the harassment, including effective actions to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects. U.S. Department of Education, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001). Following the 1999 Davis U.S. Supreme Court decision recognizing a private legal cause of action for peer-to-peer harassment, many school districts used the 2001 Sexual Harassment Guidance principles as the basis for local policies and procedures for addressing harassment complaints. However, as evidenced below, even though the Title IX regulations have not changed, OCR’s specific expectations for school districts have multiplied. OCR’s 2014 Questions and Answers on Title IX and Sexual Violence (2014 Questions and Answers) document adds requirements that OCR will review all aspects of a school’s policies and practices, expecting these to address the following six (6) elements: (1) notice to students, parents of elementary and secondary students, and employees of the grievance procedures, including where complaints may be filed; (2) application of the grievance procedures to complaints filed by students or on their behalf alleging sexual violence carried out by employees, other students, or third parties; (3) provisions for adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence; (4) designated and reasonably prompt time frames for the major stages of the complaint process; (5) written notice to the complainant and alleged perpetrator of the outcome of the complaint; and (6) assurance that the school will take steps to prevent recurrence of any sexual violence and remedy discriminatory effects on the complainant. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 12. 2011 Addition of School Investigation Evidence Standard In its Dear Colleague Letter on Sexual Violence issued in 2011 (2011 Sexual Violence Letter), OCR added another requirement for addressing sexual harassment that does not appear in the Title IX regulations, namely: (1) A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination. Letter from Russlyn Ali, U.S. Department of Education, Assistant Secretary for Civil Rights, to Colleagues: Sexual Violence (2011) p. 10.

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In response to my concerns about why the district should use this standard for investigation, OCR staff informed me it is because it is in OCR’s 2011 Sexual Violence Letter and because it is the standard OCR is required to use when it investigates such a complaint. It should be noted that while the 2011 Sexual Violence Letter was directed toward institutions of higher education, OCR takes the view that it also applies to elementary and secondary schools receiving federal funds. Additional OCR Guidance Expansion Since 2014 In its 2014 Questions and Answers, OCR advised it is a requirement that schools take interim measures to protect alleged victims during a complaint investigation. That document also added the requirement that a district’s policies or procedures must advise the victim of the right to report the incident as crime, stating: Title IX requires a school to protect the complainant and ensure his or her safety as necessary, including taking interim steps before the final outcome of any investigation. The school should take these steps promptly once it has notice of a sexual violence allegation and should provide the complainant with periodic updates on the status of the investigation. If the school determines that the sexual violence occurred, the school must continue to take these steps to protect the complainant and ensure his or her safety, as necessary. The school should also ensure that the complainant is aware of any available resources, such as victim advocacy, housing assistance, academic support, counseling, disability services, health and mental health services, and legal assistance, and the right to report a crime to campus or local law enforcement. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 3. Note these requirements for interim measures and notice to the victim of how to report crime are not in the Title IX regulations. Who OCR Says Cannot Complete a Title IX Investigation In a similar vein, OCR now insists districts not allow law enforcement officers to complete the district investigations into complaints of federally-protected-area harassment. The 2014 Questions and Answers document says: Of course, criminal investigations conducted by local or campus law enforcement may be useful for fact gathering if the criminal investigation occurs within the recommended timeframe for Title IX investigations; but, even if a criminal investigation is ongoing, a school must still conduct its own Title IX investigation. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 27.

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It seems rather incongruous that a law enforcement officer who has training in investigative techniques would not be “approved” by OCR to complete such investigations when OCR is insisting districts must tell individuals they can file criminal complaints. The 2014 Questions and Answers also added the following requirements, none of which are in the Title IX regulations, as to Title IX coordinators: The Title IX coordinator must be informed of all reports and complaints raising Title IX issues, even if the report or complaint was initially filed with another individual or office or if the investigation will be conducted by another individual or office. The school should ensure that the Title IX coordinator is given the training, authority, and visibility necessary to fulfill these responsibilities…. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) pp. 1011. If a school designates more than one Title IX Coordinator, the school’s notice of nondiscrimination and Title IX grievance procedures should describe each coordinator’s responsibilities, and one coordinator should be designated as having ultimate oversight responsibility. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 11. In contrast to the above expansion of a coordinator’s duties, the Title IX regulation, at 34 C.F.R. § 106.8, requires a school district to have a Title IX coordinator. The regulation states: (a) Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to such recipient alleging its noncompliance with this part or alleging any actions which would be prohibited by this part. The recipient shall notify all its students and employees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph. Expansion of What Districts Should Have in a Harassment Grievance Procedure In the 2014 Questions and Answers, OCR added to its requirements that certain elements must be in a school’s harassment grievance policy or procedure, stating some are “mandatory obligations under Title IX”: (1) a statement of the school’s jurisdiction over Title IX complaints;

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(2) adequate definitions of sexual harassment (which includes sexual violence) and an explanation as to when such conduct creates a hostile environment; (3) reporting policies and protocols, including provisions for confidential reporting; (4) identification of the employee or employees responsible for evaluating requests for confidentiality; (5) notice that Title IX prohibits retaliation; (6) notice of a student’s right to file a criminal complaint and a Title IX complaint simultaneously; (7) notice of available interim measures that may be taken to protect the student in the educational setting; (8) the evidentiary standard that must be used (preponderance of the evidence) (i.e., more likely than not that sexual violence occurred) in resolving a complaint; (9) notice of potential remedies for students; (10) notice of potential sanctions against perpetrators; and (11) sources of counseling, advocacy, and support. U.S. Department of Education Questions and Answers on Title IX and Sexual Violence (April 29, 2014) p. 13. In addressing a recent OCR complaint resolution in Kentucky, OCR insisted that all of the above be put into the school district’s sexual harassment policy or procedures. While OCR notes one school district policy may cover all areas of federally-protected-area harassment, to date in Kentucky, it is requiring these specifics only in the sexual harassment ones. Conclusion Dealing with OCR on the topic of harassment is a “moving target”. Without intervention by Congress or the courts, school districts are at the mercy of federal agency decisions, with the threat of loss of federal funding hanging over their already cash-strapped heads. Further, at this time, school district staff cannot rely on longstanding OCR interpretations of its own regulations, or even on the clear language of federal regulation or U.S. Supreme Court opinions. This makes it virtually impossible to keep school districts in compliance with OCR requirements in policy development and program implementation.

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