Title IX - A Review for South Dakota's Public School Leaders (Part 2 - A School's Response to Sexual Violence)

What is sexual violence?

Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be carried out by school employees, other students, or third parties. All such acts of sexual violence are forms of sex discrimination prohibited by Title IX.

How does Title IX apply to student-on-student sexual violence?

Under Title IX, federally funded schools must ensure that students of all ages are not denied or limited in their ability to participate in or benefit from the school’s educational programs or activities on the basis of sex. A school violates a student’s rights under Title IX regarding student-on-student sexual violence when the following conditions are met: (1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program (i.e. creates a hostile environment); and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. 

How does OCR determine if a hostile environment has been created?

The Office of Civil Rights (OCR) considers a variety of factors to determine if a hostile environment has been created; and also considers the conduct in question from both a subjective and an objective perspective. Specifically, OCR’s standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim’s position, considering all the circumstances. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. In fact, a single or isolated incident of sexual violence may create a hostile environment.

When does OCR consider a school to have notice of student-on-student sexual violence?

OCR considers a school to have notice of student-on-student sexual violence if a responsible employee knew, or in the exercise of reasonable care should have known, about the sexual violence.

A school can receive notice of sexual violence in many different ways. Some examples of notice include: a student may have filed a grievance with or otherwise informed the school’s Title IX coordinator; a student, parent, friend, or other individual may have reported an incident to a teacher, principal, campus law enforcement, staff in the office of student affairs, or other responsible employee; or a teacher may have witnessed the sexual violence.

The school may also receive notice about sexual violence in an indirect way, from sources such as a member of the local community, social networking sites, or the media. In some situations, if the school knows of incidents of sexual violence, the exercise of reasonable care should trigger an investigation that would lead to the discovery of additional incidents.

For example, if school officials receive a credible report that a student has perpetrated several acts of sexual violence against different students, that pattern of conduct should trigger an inquiry as to whether other students have been subjected to sexual violence by that student. In other cases, the pervasiveness of the sexual violence may be widespread, openly practiced, or well-known among students or employees.

In these cases, OCR may conclude that the school should have known of the hostile environment. In other words, if the school would have found out about the sexual violence had it made a proper inquiry, knowledge of the sexual violence will be imputed to the school even if the school failed to make an inquiry. 

What are a school’s basic responsibilities to address student-on-student sexual violence?

When a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate and determine what occurred (subject to various confidentiality provisions). If an investigation determines that sexual violence created a hostile environment, the school must take prompt steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. 

Is a school required to protect the complainant?

Yes. Title IX requires a school to protect the complainant and ensure his or her safety as necessary. This includes 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 provide the complainant with 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.

Does Title IX cover employee-on-student sexual violence, such as sexual abuse of children?

Yes. Title IX also protects students from other forms of sexual harassment (including sexual violence and sexual abuse), such as sexual harassment carried out by school employees. Sexual harassment by school employees can include unwelcome sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a sexual nature.

How should a school respond to sexual violence when the alleged perpetrator is not affiliated with the school?

The proper response will differ depending on the level of control the school has over the alleged perpetrator. For example, if an athlete or band member from a visiting school sexually assaults a student at the home school, the home school may not be able to discipline or take other direct action against the visiting athlete or band member. However (subject to any confidentiality provisions), it should conduct an investigation into what occurred and report the incident to the visiting school. Even though a school’s ability to take action against a particular perpetrator may be limited, the school must still provide appropriate remedies for the complainant. This may include providing support services for the complainant and issuing new policy statements making it clear that the school does not tolerate sexual violence and will respond to any reports about such incidents. 

Part 3 - Students Protected by Title IX and Procedural Requirements