Educators have until January 28 to comment on the Department of Education’s proposed new rules on sexual harassment and assault, which for the first time draw a clear distinction between how colleges and high schools should handle the issue.
The proposed rules implementing Title IX of the Education Amendments of 1972 were released in November, more than a year after Secretary DeVos had withdrawn the Obama administration’s guidelines on the subject and promised to follow standard notice-and-comment rulemaking procedures to replace them. Once the comment period ends, the Department must respond to all “significant” comments and explain any changes it decides to make in the interim. The final rules will be subject to judicial review, making further litigation all but inevitable. The incoming chairman of the House Education and Labor Committee, Representative Bobby Scott, has promised to hold hearings on the proposal, which he and many other Democrats in Congress have harshly criticized. The battle over federal sexual-harassment rules is thus likely to drag on for many months, leaving educational institutions unsure exactly what is required of them.
So far, the most controversial sections of the proposal are those requiring schools to hold live hearings for college disciplinary proceedings and to allow cross-examination of all witnesses, including those who have lodged sexual-assault complaints. The Department maintains that live hearings with cross-examination are essential elements of due process. Its critics warn that these requirements will inhibit victims of sexual misconduct from coming forward.
Overlooked in most press coverage of the topic is the fact that the proposal does not impose these two requirements on elementary and secondary schools. Indeed, a key feature of the proposal is that for the first time the Department has addressed the differences between colleges and universities on the one hand and elementary and secondary schools on the other. Moreover, it has asked for comments on “whether there are parts of the proposed rule that will be unworkable at the elementary and secondary school level, if there are additional parts of the proposed rule where the Department should direct recipients to take into account the age and developmental level of the parties involved . . . [and] whether there are other unique aspects of addressing sexual harassment at the elementary and secondary school level that the Department should consider.” Since this is the first time the Department has gone through the full notice-and-comment rulemaking procedure on the sexual-harassment issue, school officials should take advantage of this opportunity to weigh in on these topics.
Differences without Distinctions
The judges and administrators who developed regulatory requirements under Title IX have occasionally noted the differences between college-age students and students in elementary, middle, and high school. Yet they have seldom explained how these differences affect the legal responsibilities of school officials. In part this is a result of the peculiar way federal guidelines have evolved. When the issue of sexual harassment on campus first emerged in the 1990s, the primary focus was on middle and high schools, with little attention to the post-secondary context. All the major court decisions, including the three major Supreme Court cases, involved students under the age of 18. Starting in 2010, the Obama administration launched an aggressive campaign to curb sexual assault on college campuses. This time, in contrast, federal regulators paid almost no attention to elementary and secondary schools. Yet all of these rules, regardless of their original focus, apply to every educational institution receiving federal funds—which means all public schools and almost all private colleges in the country. Moreover, because the Obama Department of Education relied on unilateral “Dear Colleague Letters” rather than notice-and-comment rulemaking, there was little opportunity to explore how students of different ages should be treated.
There are many reasons why age matters in this context. First, as Justice O’Connor wrote in a seminal Title IX case, “children may regularly interact in a manner that would be unacceptable in adults . . . they often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it,” but not “serious enough to have the systemic effect of denying the victim equal access to an educational program or activity.”
Second, since most students in elementary and secondary schools are minors, sexual misconduct by teachers and other staff members is usually a criminal matter. Colleges can debate whether or not to allow romantic relationships between professors and graduate students. But elementary schools cannot tolerate sexual relations between a teacher and a sixth-grader. They have a responsibility not only to take immediate disciplinary action, but to alert the police.
Third, college students have far more unstructured, unsupervised time during the day than do elementary and secondary school students. They have dorm rooms, fraternities, and on-campus drinking parties—places where serious sexual misconduct is particularly likely to occur. In contrast, for much of the day elementary- and secondary-school students are subject to parental control. It is not the school’s responsibility to monitor their activity once they leave school property or finish a school activity.
Fourth, students do not have a right to attend college, but they do have a right to a primary and secondary education. That means that colleges have greater discretion over the suspension and expulsion of students—the most common punishments for sexual assault. Paradoxically, while the Obama Department of Education was demanding that schools crack down on sexual violence, it was also pushing public schools to reduce their use of out-of-school punishments. School officials were given little guidance on how to square these competing demands.
Regulators have from time to time acknowledged these age differences, and have routinely urged schools to establish “age-appropriate” policies. For example, when a North Carolina school relied on Department guidelines to discipline a six-year-old for kissing another student on the cheek, the Department’s Office for Civil Rights explained that “a kiss on the cheek by a first grader does not constitute sexual harassment.” But it did little more to clarify where schools should draw the line.
The Shifting Focus of Regulation
The main reason federal rules on sexual harassment have been shifting and unclear is that Title IX itself says nothing on the subject. It merely prohibits sex discrimination by educational institutions receiving federal funds. Federal mandates on sexual harassment emerged slowly, first in court decisions, then in administrative guidelines. Neither the courts nor the Department of Education had much to say on the topic until the early 1990s—nearly twenty years after enactment of the statute. Adopting legal arguments developed in Title VII employment cases, federal judges eventually determined that sexual harassment constitutes sex discrimination under Title IX if such noxious behavior is aimed at members of one sex and is serious enough to limit a student’s educational opportunity. (Oddly, this left those who engage in indiscriminant harassment of both sexes off the hook.)
Judges and administrators then confronted the more complicated question of when educational institutions should be held responsible for the conduct of faculty, staff, and students. To what extent should school officials be expected to monitor and control the behavior of thousands of people, an undertaking made especially difficult by the fact that much of the activity in question takes place in private? Their answers—the plural is important since there were many disagreements—emerged in two stages, the first in the 1990s and the second in the 2010s.
During the 1990s, publicity and litigation over sexual misconduct by elementary- and secondary-school teachers and students drove the regulatory agenda. On the heels of the 1991 Anita Hill–Clarence Thomas hearings, Seventeen magazine published an article on sexual harassment in elementary and secondary schools, and it encouraged readers to report on their experiences. Over 4,000 students did so. A subsequent article in the magazine reported that 90 percent of the respondents had been subject to some form of sexual harassment, nearly 40 percent on a daily basis. In 1993 the American Association of University Women published a study entitled Hostile Hallways claiming that the vast majority of high school girls had been subject to sexual harassment of some form. Although hardly systematic studies, these findings were widely reported in the press.
In 1992, the Supreme Court held that under Title IX federal judges could order a public high school to pay monetary damages for failing to take disciplinary action against a teacher who had engaged in sexual relations with an underage student (Franklin v. Gwinnett County Public Schools). Given the Rehnquist Court’s general inclination to restrict judicial remedies, this decision was surprising. The Court was likely influenced by the fact that the alleged misconduct was not only repeated and serious, but criminal. The Court made no effort to explain what constitutes actionable misconduct or when schools will be liable for the misconduct of employees or students. Answers to those questions would await years of further litigation.
The number of Title IX cases against public schools quickly grew. Most involved allegations of harassment perpetrated by other students, not teachers—behavior that is much harder for school officials to monitor and control. Lower courts were all over the map on which liability standard to apply. Some ruled that schools were liable if they “knew or should have known” about behavior that created the hostile environment. Others held that schools would be held responsible only if they had “actual knowledge” of the behavior and failed to take corrective action. Most agreed that liability for misconduct by teachers should be stricter than for peer harassment. This uncertainty produced anxiety among public-school leaders. Publications such as Education Week added to the sense of crisis by running stories that exaggerated schools’ risk of losing expensive damage suits.
School officials pleaded for clarification of their responsibilities, and in 1997 the Department’s Office for Civil Rights announced guidelines spelling out the steps schools should take to protect themselves from costly litigation. It expected schools not just to respond quickly and effectively to particular incidences of misconduct, but to “take steps reasonably calculated to end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again”—an undertaking that not only went well beyond anything the courts had previously required, but would be extraordinarily difficult (if not Sisyphean) in large institutions.
Soon thereafter, the Supreme Court granted review in two Title IX cases, one involving misconduct by a middle-school teacher (Gebser v. Largo Vista Ind. Sch. Dist., 1998), the other peer harassment aimed an elementary-school girl (Davis v. Monroe City Board. of Education, 1999). In both the Court adopted a relatively lenient liability standard: schools were liable for damages only if they had “actual knowledge” of the misconduct in question and acted with “deliberate indifference.” Moreover, to violate Title IX, harassment must be “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Justice O’Connor cautioned judges to “refrain from second-guessing the disciplinary decisions made by school administrators.”
In January 2001—on the very last day of the Clinton administration—the Office of Civil Rights announced that it would not adopt this standard: it expected schools to take a number of additional steps to address the problem. The Court’s liability standard, it explained, applied only to private suits for monetary damages. Its more demanding administrative rules would be enforced through an alternative mechanism: the termination of federal funds. But since the Department has never terminated funding under Title IX, everyone knew this was an empty threat. For a decade, the Department made little effort to enforce the Clinton administration’s midnight guidelines.
Phase two began in 2010, when the Obama administration began an aggressive effort to curb what it repeatedly described as the “epidemic” of sexual assault on college campuses. To this end it issued a detailed “Dear Colleague Letter” in 2011, added an even longer guidance document entitled “Questions and Answers on Title IX and Sexual Violence” in 2014, and launched hundreds of lengthy investigations of colleges and universities. These guidelines and investigations generated intense controversy and gobbled up agency resources. How rules developed with colleges in mind would apply to schools for younger children remained unaddressed. Investigations of complaints against elementary and secondary schools were placed on the backburner.
Although the Office of Civil Rights once again threatened to terminate federal funding to schools that failed to comply with its detailed mandates, it never pulled the trigger. Instead it developed an innovative and largely successful enforcement strategy: turn each individual complaint into an investigation of the entire college or university; make these investigations so costly (in terms of reputation as well as money) that schools will sign legally binding agreements to end them; and use these agreements to build within each school an internal compliance organization that shares the perspective of federal regulators.
As a consequence, the gap between administrative and judicial interpretations of schools’ responsibility that first appeared in 2001 had become a chasm by 2014. The Department’s November 2018 proposal, in contrast, described the Supreme Court’s Gebser and Davis interpretations of Title IX as “foundational.” The stated purpose of the proposal is “to better align the Department’s regulations with the text and purpose of Title IX and Supreme Court precedents and other case law.” That requires wholesale revision of the administrative rules announced between 2001 and 2014.
Acknowledging the Difference
As part of that restructuring, the Department of Education for the first time has proposed different rules for different types of educational institutions. This was particularly clear on two matters: who is responsible for reporting sexual misconduct; and whether disciplinary proceedings must include live hearings and cross-examination.
For colleges, the proposal held that in most circumstances an institution does not have “actual knowledge” of alleged misconduct unless a student files a formal complaint with the Title IX coordinator. The fact that a faculty member or other staff member has heard about the allegation does not constitute the “actual knowledge” the Supreme Court required for imposing liability. For elementary and secondary schools, though,
actual knowledge can also come from notice to a teacher. The Department recognizes that the Supreme Court has not held definitively that teachers are ‘appropriate officials with the authority to take corrective action’ with respect to student-on-student sexual harassment; however in the elementary and secondary school setting where school administrators and teachers are more likely to act in loco parentis, and exercise a considerable degree of control and supervision over their students, the Department believes this interpretation is reasonable.
In short, elementary- and secondary-school teachers “should be considered to have the requisite authority . . . to trigger a recipient’s obligations under Title IX.”
No provision in the proposal has been more controversial than the requirement that colleges hold live hearings and allow cross-examination in sexual assault disciplinary proceedings. But as noted above, the proposal does not impose this mandate on elementary and secondary schools: “Because most parties and many witnesses are minors in the elementary and secondary school context, sensitivities associated with age and developmental ability may outweigh the benefits of cross-examination at a live hearing.” Consequently, the proposed rule “allows—but does not require—elementary and secondary schools to hold a live hearing as part of their grievance procedures.”
The November proposal thus opened a long-delayed discussion about how Title IX should be applied in different settings. Unilaterally issued “Dear Colleague Letters” tend to shut off debate: they ask for comments only after federal mandates have been announced. Notice-and-comment rulemaking, in contrast, is designed to invite public reaction. School officials should jump at this opportunity to explain to regulators the challenges they face in applying Title IX rules to children of varying ages.
R. Shep Melnick is the author of The Transformation of Title IX: Regulating Gender Equality in Education (Brookings, 2018).