EdLawConnect Blog

The educational setting is not Hollywood. Our students and most employees are not public figures.  Yet, in the wake of the #metoo movement, it is realistic to expect a rise in complaints of alleged sexual misconduct from students and employees.  Many colleges and even K-12 districts have already experienced the impact of the enhanced public awareness and outrage.

Federal law, through Title IX of the Education amendments of 1972, expects that all complaints will be addressed promptly, effectively, and with particular attention to gravity of the allegations.  Both complainants and respondents must be given the opportunity to be heard and continue to have access to their educational setting or work environments.  Title IX requirements for notices, investigations, and responses are numerous and must be adhered to in order to provide an effective response and avoid liability.

In the context of Title IX, “sexual misconduct” can cover a wide range of unwanted conduct of a sexual nature, including a single, isolated incident, ongoing sexual harassment, or sexual assault.  It can now also include sexual exploitation, stalking, and dating violence.  Understanding the nuances of Title IX is imperative in order to appropriately investigate allegations and effectively respond so that the complainant, respondent, and school community are protected.

School districts, colleges, and universities can expect to see an influx of sexual harassment and sexual misconduct allegations throughout the rest of the academic year and beyond.  These complaints may be against students, employees, visitors, or board members.  Any increase in complaints, and the way they are handled, will likely result in a wide range of reactions from administrators, labor unions, the community, and other stakeholders.

Educational organizations will experience many challenges as a result of any increase in sexual harassment complaints.  Policies may be out of date or inconsistently followed.  There may be staffing shortages or training deficiencies for those charged with handling and processing complaints.  Administrators charged with investigating sexual harassment complaints may be unfamiliar with handling sexual misconduct complaints in as much detail or number.  There may be limited support resources available for complainants.  Because of the nature of the allegations, respondents may demand to be represented by attorneys in a process that did not typically include legal representation.  In addition, social media coverage can quickly become out of control and unmanageable. 

Those tasked with Title IX responsibilities can be proactive by contemplating how to respond to various reactions and demands from your leaders, stakeholders, and community.  For example, are you prepared to respond to the following situations: 

• District leaders demand swift action before completing an investigation
• The community expects termination or expulsion without due process
• Your donors threaten to withhold funds contingent of institutional change
• Grant applications require stronger policies addressing sexual misconduct
• There may be a backlash against complainants from respondents or advocates of free-speech or academic freedom

Gone are the days where educational institutions can assume that sexual misconduct is happening “somewhere else.”  At the same time, a public educational institution is neither responsible for widely accepting all allegations of sexual misconduct nor is it appropriate to view complaints with prejudged disbelief.  Instead, the educational institution must gather facts, respond to the complaints in a timely manner, make objective decisions supported by a preponderance of evidence, eliminate any substantiated sexual misconduct, and make specific and institutional changes, as appropriate.  Despite the new climate, the overall goal of educational access for all students has not changed and the due process rights of students and employees remain in effect.  Districts must continue to work with a heightened awareness and sensitivity for complainants, respondents, and affected members of the community.

If you need assistance revising your policies or responding to sexual misconduct complaints, our experienced attorneys are available to help with these Title IX matters.  We also have several training programs tailored to investigators, Title IX Coordinators, and employees who have reporting responsibilities.