Recently, the Supreme Court declined to accept two Title IX cases that sought to clarify the “deliberate indifference” standard which applies to educational institutions in Title IX litigation. Although the cases highlighted contrary interpretations of this standard between federal circuits courts and, even in some cases within the same circuits, at the trial and appellate level, these discussions of legal standards fail to provide practical guidance to Title IX Coordinators on how to respond to reports of sexual harassment and sexual violence.

In the Fairfax County (VA) School Board case, a female student alleged that she had been sexually assaulted by a student while on a bus during a school-sponsored band trip. The alleged assaulter had never engaged in sexual misconduct of any kind in the past. A central issue in the case was whether the school district had adequate “notice” of the behavior such that they could have intervened to stop the sexual assault. The jury in the case found that the girl had been sexually assaulted (despite the district’s finding to the contrary) but that the district could not be held responsible because the district did not have “actual notice,” because there were no prior bad acts by the responding party. Victim advocate groups describe the case as the district arguing for “one free rape,” referring to the fact that a district could not be responsible if this were the first bad act of the accused student.

Similarly, the University of Toledo in Ohio asked the Supreme Court to review a case that would provide guidance as to when a school is liable for sexual harassment of a student by a professor. In this case, a central issue was whether the deliberate indifference standard, articulated by the Supreme Court for student-on-student harassment, applies in a student action against a professor. In this case, the University received notice of the alleged harassment after the student had left the class with the professor and after the harassment had ceased.

While many may argue that this guidance sought in both these cases is important and necessary for educational institutions, neither decision would guide Title IX Coordinators on how to best respond when a student reports an incident. Regardless of whether the alleged incident is a first-time offense and/or if it is against a student or employee, students, parents, and other community members will not be satisfied with a response that is simply NOT deliberately indifferent. This articulated standard sets the bar well below what the stakeholders expect from educational institutions.

So, what should Title IX Coordinators keep in mind when responding to a report of sexual harassment and/or sexual assault? These are some important tips:

• Timing is everything – Upon report of an incident, the Title IX Coordinator should reach out immediately to the impacted party to provide support and offer process. The initial response must not be delayed as it will set the tone for the potential complainant’s interpretation of the entire process.
• Treat both parties equally – The Title IX office must carry on operations without conflicts of interest, bias, or use of stereotypes. From the initial report through the conclusion of a matter, the Title IX office should welcome both complainant and respondent (parties) and provide ongoing support to both. Explaining this objective role at the initial stages to both parties is integral to dispelling any myths about the Title IX office acting as an advocate for either party.
• Manage expectations -The resolution that a party is seeking may not be clear and, in some instances, not possible. The importance of explaining the process and what happens at each stage cannot be overemphasized. Parties often expect an immediate response, conclusion, and discipline, which may not be possible in the current regulatory environment.

While it remains important Title IX Coordinators keep apprised of the litigation decisions interpreting Title IX, the decisions will not necessarily impact the day-to-day operations of the office and the stated and unstated expectations of the institution’s local community. Remember the tips above as the legal and regulatory shifts continue to happen in the field of Title IX.