With the Covid-19 pandemic necessitating that K-12 schools adopt remote learning, and the U.S. Department of Education releasing a new Title IX Rule on sexual harassment, school district Title IX Coordinators have faced significant challenges in 2020.
SSAIS asked Megan Farrell, consultant at Title IX Consult and former Title IX and Civil Rights Officer at Palo Alto Unified School District (PAUSD), to shed light on how K-12 schools might manage these issues.
SSAIS: What challenges did you face implementing the new Title IX regulations at PAUSD?
MF: The biggest challenge was the quick timeline for implementing these new regulations. With a release date in May and an implementation date in August, there was little time to determine the best course of action. We had recently adopted our administrative regulation that allowed us to manage the process consistent with Title IX and also analyze matters under state law, which provides additional protections for complainants.
SSAIS: The new Title IX Rule creates two tiers of sexual misconduct: one for harassment that meets the threshold of a sexually hostile environment as defined in the new Title IX rule and another for harassment that doesn’t. How do you plan to manage separate investigation procedures, grievance processes, and supportive measures for these two tiers? What problems do you foresee?
MF: We will run a parallel investigation process. We expect that under the Title IX sexual harassment process we will dismiss many of the allegations that we receive because they do not meet the new federal definitions, but we will proceed under state law. In our initial notification of complaint communication with the families, we will include reference to both policies and both procedures. Of course, we are always available to answer questions about the process. At this time, we think we will send one final outcome letter that explains a potential dismissal under Title IX but then analyzes the situation under state law.
SSAIS: The new Rule states that schools must not conduct a Title IX investigation unless the harassment meets the new threshold of creating a hostile environment. How do you determine whether the harassment meets that threshold without conducting some kind of investigation? What does that process look like? What advice can you offer administrators who do not deem sexual harassment to be “severe, pervasive, and objectively offensive” when the student is clearly distressed to the extent that it is impacting their education?
MF: The New Rule has mandatory dismissals of certain actions that can be made on the face of the allegations themselves. Specifically, the Rule would require dismissal of matters that would not fit within the new definition of sexual harassment, that did not occur in an education program or activity of the college, and/or that did not occur in the United States. This process would require the Title IX Coordinator to conduct a formal review of the allegations upon receipt to determine which actions require dismissal under the new Rule. For instance, any matter that happens off campus will need to be dismissed under Title IX. Also, a single sexually harassing comment probably won’t meet this new definition. Regardless of the conclusion about whether the actions meet the Title IX definition, the school has an obligation to provide the student with supportive measures (previously called interim measures) to ensure the student can pursue his/her/their education. Aside from the supportive measures, the school may also be required to analyze the matter under state law and impose appropriate discipline in the event of a violation.
SSAIS: How have you explained the provisions of the new Title IX Rule to students and staff? For example, how would you clarify to students the difference between a complaint and a “formal complaint?” Have you conducted any training?
MF: PAUSD trains 100% of its staff on Title IX annually. We had focused training for all administrators to walk through the process and describe the decision-maker role in detail. We also provide training to students. It has been PAUSD policy for over three years to offer a formal complaint process to any report of sexual harassment. We have continued these efforts. We have information available on the district website and direct links to the Title IX website on every school website in the district. If a school does not provide training either internally or externally, the district will be in violation of this requirement. It is imperative that schools find a way to get this information to its staff.
SSAIS: What recommendations do you have for other districts (in California and elsewhere) who might be wrestling with problems implementing the new Rule?
MF: Find training and get your Title IX staff and other relevant individuals (decision-makers, appeal officers, advisors) educated about the process. Also, reach out to other districts to find out what they are doing. Many districts, like PAUSD, have policies and procedures available on the district website. There is no need to recreate the wheel in many instances. Some of the larger Title IX organizations offer trainings that can be cost-prohibitive, but there are a number of other ways to get this training through local law firms and Title IX consultants. My practice, Title IX Consult LLC, offers a low-cost membership to school districts that includes annual training for Title IX Coordinators and online training for staff members that meet the regulatory requirements.
SSAIS: Are students reporting sexual harassment incidents in virtual classes? If so, what are they saying?
MF: Yes, we have complaints related to inappropriate language that has been used in the online classroom. In other districts, I have heard reports of students exposing themselves in the online classroom.
SSAIS: How did you respond to these reports?
MF: We respond to every report of harassment within 24 hours and offer our formal complaint process. If a formal complaint is filed or the Title IX Office files a formal complaint, we investigate and determine if the allegations constitute a violation of our policies, which include both federal and state law/regulations.
SSAIS: Have students reported peer sexual harassment incidents outside of online classes? If so, how have you responded?
MF: We respond to any report of harassment, regardless of whether it happens on our campus or off. We provide supportive measures to the complainant and offer the formal complaint process.
SSAIS: Has PAUSD updated its sexual misconduct policies to cover harassment that occurs during online classes?
MF: No, this was not necessary as our policies were inclusive of classroom behavior, whether that classroom was online or face-to-face. PAUSD is revising its policies related to the New Rule on sexual harassment to be inclusive of all of these requirements.
SSAIS: What other measures are you taking to keep students safe from sexual harassment in virtual classrooms (e.g., some schools disable the private chat feature of the conferencing software or take measures to prevent outsiders from interrupting online classes)?
MF: PAUSD is providing outreach to students and training on recognizing harassment through online training during our advisory periods. The Information Technology department offers support for responding to online harassment. I have seen some districts using the technology to offer a reminder that students agree to comply with all policies prior to entering the classroom.
SSAIS: There’s a national trend in which middle and high school students form Instagram groups to expose sexual harassment they or others have experienced in their schools. We’ve seen reports about students taking matters into their own hands in Oregon, Colorado, New York State, New York City, and Maryland. Why do you think students resort to this public method of airing complaints anonymously?
MF: Some students and parents may not understand how to bring these complaints within the district. Some students find sharing these experiences in an anonymous way to be the first step in talking about the situation. Others find comfort in knowing that others have experienced similar situations. In some instances, students may feel that the public outcry will lead to a reaction from a district that may not have addressed these matters in the past.
SSAIS: Here’s an example post from an Instagram group called “Dear Culver,” whose members are students in Culver City USD:
Mr. [teacher’s name] has always made sexual and inappropriate comments to his students. Telling girls “I wish I had your body.” He has no boundaries, and the school ignores complaints about him.
How do you go about establishing trust with students who are frustrated by the lack of action taken by adults in their schools?
MF: I think building trust with students begins with educating students and parents about the complaint process. The process needs to be transparent and proactive, and all parties are entitled to timely updates about the progress of an investigation process. Keeping the lines of communication open throughout the investigation is also important, and the Title IX Office should schedule regular check-ins with complainants. Because of student privacy laws, a district often cannot share publicly what steps they have taken to address a specific matter. Further, there are privacy laws related to employees that also in some instances limit what information can be shared.
SSAIS: Do you now have or plan to employ ways for students to submit anonymous complaints of sexual harassment? Do you have other ideas for reaching out to students (e.g., holding listening sessions)?
MF: PAUSD has had an anonymous reporting system for over three years. We extended our training efforts to include concerns and feedback from students. We also developed some user-friendly mechanisms to share our messages – videos, etc. We also took efforts to display prominently on our website how to reach out during the shelter-in-place/Covid pandemic.
Title IX Resources at PAUSD
Cover Title IX Page
https://www.pausd.org/about-us/policies-procedures/title-ix-office
How to File a Formal Complaint
https://www.pausd.org/about-us/policies-procedures/formal-complaint-procedures
Title IX Chat
https://drive.google.com/file/d/1dVJV_zlq17X2n1A3IhbDdQgosZgcRZL_/edit
Workshop, Training, and Meetings
https://www.pausd.org/about-us/policies-procedures/title-ix-office