April 25, 2017

Title IX and Sexual Violence at Colleges and Universities

sexual violence at universitiesTitle IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any education program, including in colleges and universities, if those programs or activities associated with the institution receive federal funding. Under Title IX, sex discrimination includes sexual harassment, sexual battery, sexual assault, rape and other sexual violence at school, college or university campuses. Any behavior that disrupts a student’s access to an educational opportunity or benefit constitutes a violation of Title IX. Recent media coverage has brought to light the controversy over the six-month sentence for a former Stanford University student for the rape of a student on campus. There has been outrage over the sentence, and that outrage might be justified, given schools’ responsibilities in similar cases.

The Washington Post reported on June 7, 2016, that nearly 100 colleges and universities had at least 10 reports of sexual violence and rape on their main campuses in 2014, according to federal campus safety data. Brown University and the University of Connecticut tied for the highest annual total — 43 each. In our experience as education administration and supervision and Title IX expert witnesses, many, if not most, sexual offenses against students go unreported to school officials because victims and others who might know of such violations don’t know that their school has a duty to implement Title IX. Colleges and universities are required to develop, publish, and distribute policies against sex discrimination that identify and designate a trained Title IX coordinator, respond promptly to harassment and sexual violence that create a hostile environment, prevent its recurrence and address its effects, provide immediate help for the victim, and conduct an impartial investigation to determine what occurred and take appropriate action. A hostile environment exists when a situation of a discriminatory or sexual nature creates an adverse educational setting, there exists an intimidating or offensive environment that causes a person to; be fearful or there is a setting that denies, limits or interferes with a student’s ability to participate in or benefit from a class, program or activity.

Laws governing schools’ responsibility and how they are to respond to complaints of sexual harassment and abuse are the “hard” elements that are reviewed when answering the question of whether the school acted reasonably within the standard of professional care in a particular circumstance. Schools might have all the appropriate policies in place, but if the culture of the institution doesn’t foster implementation of the standards, then it is not unreasonable to expect that students may be victimized. Victimization occurs first when they are abused, but a second time by the school when the administration fails to provide victim assistance, allows the alleged perpetrator and victim to be together on the same campus, and doesn’t conduct an investigation in a timely manner.

A Brown University spokeswoman told the Post that the university “works very hard to cultivate a culture of forthrightness so this traditionally underreported crime can be addressed and our students receive appropriate services and support.” The concern here is that sexual violence and crimes against students were “traditionally” underreported. One must consider the “tradition” of our educational institutions that encouraged underreporting of such crime. Another spokesman for the university suggested that the relatively high number of incidents at Brown, compared with other universities, is indicative of a culture of openness: “The fact that 43 incidents were reported indicates that we are building trust among our campus community members in how the university responds to reported incidents of sexual and gender-based violence.”

 

Title IX Policies Are Only Effective if Implemented

Many of the cases for which Education Management Consulting, LLC, is engaged to provide consultation and expert witness services require us to review the issues and render an opinion as to whether a high school, college, or university acted reasonably and within the standard of professional care. This is often the heart of the matter when a plaintiff claims that he or she suffered as a result of the school not implementing its own Title IX policies.

In one case, for example, a female college student was sexually assaulted by a basketball player in her dorm room and alleged that for six months following the assault, she was harassed and taunted by students whom the perpetrator told about the violation. Her lawsuit claimed that she was not informed of the college’s Title IX policy, her right to be protected, and how to report the behavior against her. A representative of the school knew of the assault, yet there was no report of it to any school official or the police. Because there was no report the school, authorities were not aware and had no reason to investigate. The school argued that because it had no actual knowledge of the violation, it had no responsibility for the continued harassment of the student.

Our review indicated that the school had very good policies, but those policies were not effectively transmitted to its students and staff. Very few students knew that there was a person on campus designated to enforce Title IX and did not know how to report violations on campus. When students do not understand their right to be protected from sex-based harassment, abuse, and  sexual violence, when school authorities fail to take seriously their duty to protect students from the harms of such behavior, and when violators are allowed to continue such behavior, our schools are letting down the very people they are meant to enrich and educate.

Colleges and universities, as well as elementary, middle, and high schools, exist — or should exist — for their students. Creating a climate in which students are able to learn and reach their academic, social, and emotional potential is — or should be — the primary goal of the school. Students can’t learn in a climate that allows or encourages offensive student behavior. Schools have a duty to be proactive in ensuring that they are free of sex discrimination, including harassment and a hostile school environment related to sexual violence.

 

Title IX Compliance Checklist for Colleges, Universities and Public Schools

Colleges and universities can argue that they are in compliance with Title IX if they can demonstrate that they:

  • Employ a Title IX coordinator who is properly trained to investigate and resolve cases and is involved in all incidents of sexual violence, harassment, and discrimination;
  • Do not act with deliberate indifference to a report of an incident and take immediate action to educate the student body and staff to prevent similar incidents from repeating;
  • Take immediate action to prevent the development of a hostile environment and eliminate the potential for retaliation and/or harassment by suspending or removing the accused while an investigation is pending;
  • Fully investigate under a Title IX coordinator and take appropriate action, even if there is a campus or community police investigation pending or taking place at the same time;
  • Do not use mediation as a tool to resolve cases of sexual harassment or sexual violence and avoid placing the burden on the victim;
  • Use the preponderance-of-evidence standard and stick to timelines for hearings and administrative action;
  • Are proactive in training faculty, staff, and students regarding sexual violence, sexual harassment and discrimination, in order to create a positive learning environment regardless of whether there is a complaint;
  • Offer and provide counseling services, regardless of whether the alleged victim wishes to file or formalize a complaint: and,
  • Widely publicize the school’s policy, provide adequate training to student body and staff, and ensure that policy is consistently implemented.

Schools are required to take immediate steps to address incidents of sexual violence and/or harassment and prevent it from affecting students further. Schools may not discourage victims who do report incidents from continuing their education. Student victims have the right to remain at school and participate in every educational opportunity available to them. It is the school’s responsibility to adequately respond to incidents and implement policies and procedures that protect student victims from further harm.

 

Off-campus Sexual Violence Incidents and Hostile School Environment Under Title IX

A hostile school environment can develop whether an incident took place on or off campus. Sexual harassment and sexual violence and abuse between students on a school-sponsored trip or at a school-sponsored event, or even outside of school between students are cause for the school to implement appropriate policies. For example, an act of sexual harassment might occur between students of the same high school at a weekend party. Initially, it may be considered that because this happened off campus, school policy and Title IX do not apply. However, if one student rapes another, and if students are aware of it and talk about it in school, this can create a hostile environment for the victim.

When a school receives such a report and fails to take action to end bullying, intimidation, or other negative behaviors against the victim, the school may be in violation of Title IX. In one case for which we were engaged, the school had knowledge that two male students sexually assaulted a female student off campus. Weeks passed and the school did not take any action to end the behavior of other students who harassed and intimidated this girl in the aftermath of the incident. It was my opinion, after reviewing the facts, that the student endured a hostile school environment created by the bullying of her classmates.

Schools must have an established procedure for handling complaints of sexual violence and harassment. When a complaint is received, the school must promptly investigate regardless of whether the complaint was reported to the police. Though a police investigation may very briefly delay the school’s investigation, schools are not allowed to wait for the conclusion of a police investigation and criminal proceedings and must conclude their own investigations in a timely manner. 2011 Office for Civil Rights Title IX guidance indicates that 60 days is an appropriate length of time to complete an investigation.

Courts have established that school districts are liable under Title IX if they fail to take effective action. Lack of an appropriate investigation, a Title IX coordinator’s lack of involvement, and lack of remedial action constitute deliberate indifference. Schools are required to use a “preponderance-of-the-evidence” standard to reach their conclusions, meaning discipline should result if it is more likely than not that discrimination, harassment, and/or violence occurred.

The federal government sets civil rights standards. If schools don’t take human rights, civil rights, and personal rights seriously and realize that they are the institutions charged with guarding these rights, then we will continue to be engaged by attorneys representing plaintiffs who claim they were not protected by their schools and by defendants who argue they were never told of any problems that make them accountable for the harassment of a student.

Sexual Abuse Expert on the Boy Scout ‘Perversion List’: What Schools and Parents Can Learn

Boy Scout Sexual Abuse

Authorities justified shielding scoutmasters and others accused of molesting children as “necessary to protect the good name and good works of scouting.”

As an education expert witness who has testified on numerous of sexual abuse cases in schools, I was not shocked by the Associated Press report of the 14,000-page Boy Scout “perversion list” released on October 18 by the Oregon Supreme Court. The AP reported that authorities justified shielding scoutmasters and others accused of molesting children as “necessary to protect the good name and good works of scouting.” Their attitude allowed sexual predators to go free, the AP reported, while victims suffered in silence.

In some of the cases I have worked on, I’ve seen that school officials sometimes turn a blind eye to situations that might lead to teachers and students developing inappropriate sexual relationships. And when a discovery comes to light, it’s not unusual for schools to act in the same way as the Boy Scouts of America did — to protect the good name of the school. We’ve seen this demonstrated at Penn State, where the administration acted behind closed doors to cover up known abuse of kids.

In about 30 percent of the Boy Scout cases, police were not notified about reports of abuse that came from victims themselves or parents. Frankly, I am surprised that this figure is so low. Every state has passed a law requiring reporting of suspicion of child abuse since the federal Child Abuse Prevention and Treatment Act was enacted in 1974. But the Boy Scouts didn’t implement mandatory reporting until 2010. And even so, too many suspicions went unreported because the Boy Scouts attempted to protect its organization — demonstrating little concern for the victims.

Rush Russell, executive director of Prevent Child Abuse New Jersey, said in a recent Star-Ledger report that child abuse is called the “silent epidemic.” Because people are uncomfortable that these things go on in their families, schools, and communities, he said, the result is a collective denial. But recent attention to sex abuse cases in schools and organizations has, in my opinion, heightened awareness of the problem in a positive way. Teachers, coaches, counselors, and scout leaders must interact with children, and it’s the responsibility of those supervising these individuals to watch for anything that would cause a person to have a reasonable concern that a child is being abused. If that person has any suspicion — or is aware of any suspicion — of inappropriate behavior, then that person must report it to the appropriate child protective agency and to local law enforcement. Sometimes this puts the supervisor in an uncomfortable position, but that is the law.

The problem is that too many adults don’t stand up for kids, would rather not get involved, may not know whom to call, or simply does not know they have a responsibility to report (although any reasonable person knows it’s wrong for an adult to abuse a child). Staying out of it keeps them safe from having to report and possibly having to give a statement or testify. For some, turning a blind eye is more comfortable than taking a chance that they might need to go further to protect kids. This attitude keeps the child in danger and might even enable the predator to continue the abuse.

In many cases for which Education Management Consulting, LLC, reviews and for which I provide expert witness testimony, I discover that there was sufficient information that could have alerted an adult to the possibility that a child was being mistreated. Some of these observations were reported to another person in a school or, occasionally, to the building administrator. This is the wrong thing to do. Why?

The law requires that a person who has reasonable suspicion that a child is being abused must report to the appropriate office of child protective services — not to the school administrator first. In some cases where I have rendered an opinion that the school breached the professional standard of care, a well-meaning but certainly ill-informed teacher who observed or had a reasonable suspicion of abuse reported it to a counselor, an assistant principal, or the building principal, who in turn exercised a judgment as to whether to take the concern further. When a matter as serious as an allegation of sex abuse stops along the chain of command, it is very dangerous. It opens the school to charges of negligence or even deliberate indifference to the rights and safety of students. This is never good for the school or the student who is being abused.

Grooming process

We hear a lot about the “grooming process” of kids by adults they trust. As I told the Star-Ledger’s Mark Di Ionno, when kids are isolated, the secret activity starts. The coach who says, “I’ll give a student a ride to the game” may be a red flag for an inappropriate relationship if the child is emotionally needy and responds to the attention. Some of our cases have involved coaches who have won the affection and trust of a parent, visited the home for dinner, tutored the student, and then asked, “Is it okay to take Phil to the soccer game tonight?” And the parent thinks, “I know this is a coach and I trust her. What do I have to worry about?”

Trust me: Parents may have something to at least be aware of — if not worried about — when a relationship progresses to this point. Most parents have the best interests of their child in mind, but they also, sometimes blindly, trust the adult. Think carefully. Why does this adult want to take your child someplace? Why is the adult spending so much time with your child and no others? Does this adult have a “normal” relationship with other adults?

Take the case of a student who was missing from class on numerous occasions. In this case, for which I was the expert witness, the school did not have a rule prohibiting students and staff from being alone together. This student was leaving the classroom under a false pretense to meet a teacher and engage in sexual activity in a closet of the school auditorium. The classroom teacher had a duty to know where this student was at all times, but she unreasonably accepted the student’s explanation that the predator teacher needed her to help him with a project. The classroom teacher never talked with the other teacher after school to ask if the girl’s reason for missing class was truthful, nor did she call the teacher on the classroom phone. No one went to see where the student was, and no one checked the predator-teacher’s schedule. The behaviors of the student, classroom teacher, and the predator-teacher allowed the circumstances for sexual abuse to occur.

Can we always see what might happen or prevent an inappropriate relationship? No. But all of us — teachers, coaches, administrators, and parents — must be aware that these things can and do happen on a scale that might not be realized.

In another case I reviewed, the school administrator knew that a student left her assigned class to spend time alone and unsupervised in the classroom of another teacher during that teacher’s non-teaching time. The principal was concerned that the teacher was having students in her room at inappropriate times, and even met with her to address the issue. Still, it didn’t occur to the principal to follow through by supervising the students or the teacher, even after reprimanding the teacher for her behavior. That misstep allowed the behavior to continue.

Three months later, it was discovered that the teacher and the student were engaging in sexual behavior in the classroom. The girl’s parents sued the predator-teacher and the school for negligent supervision that, in their claim, led to their daughter being sexually abused. My analysis of this case led me to the opinion that the school breached the professional standard of care by failing to appropriately supervise the student and the teacher.

Advice for schools and agencies

Schools and agencies that supervise children and that are supposed to supervise adults who interact with children need to be diligent in their observations of relationships between children and adults. They need to be persistent in teaching children about boundaries between them and the adults they interact with — the teacher, coach, counselor, or scoutmaster. Tell kids what inappropriate behavior is. Tell them whom they should tell when something inappropriate occurs. Don’t take for granted that children know where boundaries rest. They need to be told.

Similarly, don’t take it for granted that adults know how to respond when a child initiates a relationship that might lead to inappropriate sexual behavior. They need to be told how to react to a child who is too forward and wants to tell her teacher all about her problems with her father. Set the standard and know how to respond.

Advice for parents

Does this mean that a parent should never allow his son to be with a trusted adult? No, but parents should ask questions and not simply accept that there’s no harm in a teacher asking if she can take a child to the night soccer game. Be aware of any situations between your child and a tutor at your home or a coach who comes over in the evening to talk with your child. Does any of this make you uncomfortable? Follow your instincts.

Teach your child the difference between appropriate and inappropriate behavior with adults. They need to be told. Don’t assume they know what unacceptable behavior is and whom they should tell. Create a level of trust where your child can tell you about anything that makes him feel uncomfortable.

Too many of our kids are physically and emotionally abused by the adults they and their parents trust. We all need to be educated and reminded about these things. Hopefully, by doing so, we will all help in some way to keep our kids safe.  If you are in need of assistance or advice from a sexual abuse expert please call Education Management Consulting at 609-397-8989.  We offer assistance to parents, schools and attorneys involved in sexual harassment/abuse litigation who are in need of expert witness services.

Education Expert on Verdicts of Jerry Sandusky and Philadelphia Monsignor William Lynn

I have no doubt that schools around the country are anxiously reviewing their student sexual harassment policies before school starts again after the summer. Two recent major verdicts — one that found Jerry Sandusky, the football coach at Penn State University, guilty of 45 counts of sexual abuse, and another that found Philadelphia Archdiocese Monsignor William Lynn guilty of failure to protect children from a sexual predator — have raised issues about the moral and legal responsibility to report child sexual abuse in an effort to protect kids. Of course, I don’t believe anyone would doubt the moral imperative and legal duty to protect kids from predators. Or am I wrong?

In both these cases, there was knowledge or convincing evidence that a man or men (one, a trusted coach; others, trusted priests) responsible for the safety of children physically and sexually abused them.

In the Sandusky situation, Penn State football coach Joe Paterno didn’t report the travesty to law enforcement when an assistant coach came to him and said he saw Sandusky having sex with a player in the shower. We now know that the administration of Penn State had knowledge of Sandusky’s crime but didn’t report it. The administration decided to deal with Sandusky directly and thought the abuse would stop. It didn’t, and many boys continued to be harmed.

Lynn knew that priests had sexually abused boys but didn’t report it. Again, a person in authority who had the power to stop the abuse faltered and, perhaps in an effort to protect an institution, chose to risk that young men would be sexually abused and scarred for life. Where is the moral imperative there? Protecting an institution instead of a person — what have we come to? Why do people think it’s OK to turn a blind eye and ignore such incidents of abuse? I really don’t know, and I can’t figure that one out.

When institutions are confronted with evidence of wrongdoing, they tend to circle the wagons. The reputation of the institution becomes more important than finding the truth or helping the victims. We’ve seen this phenomenon in educational, religious, not-for-profit, for-profit, and government organizations too often.

What can schools learn from these verdicts? And what should they do to protect kids?

Be watchful and speak up

Everybody in the school community — teachers, custodians, cafeteria cashiers, school bus drivers, principals — is responsible for the safety of all the students. The school has a duty to protect its students from harm, including the harm of sexual abuse. Staffs must be alert to any reasonable suspicion or actual observation of any sexual abuse taking place. If the custodian observes the physical education teacher kissing and fondling a student outside the door of the athletic office, does that person have a duty and professional responsibility to report what he observed?

Yes! That must be reported to the appropriate child protective agency in the state and law enforcement.

Many schools are under the false assumption that if something is observed or suspected that the administrator should know about it first and then the administrator will make a decision about the information. That’s exactly what went wrong in the Sandusky and Lynn cases. The administrations knew what was taking place, but both made a decision to protect the institution rather than the kids. According to testimony, people who had suspicions about Sandusky said nothing, didn’t follow up, or convinced themselves that what they were seeing was harmless.

A 1998 investigation into Sandusky’s behavior generated no charges. According to testimony, a janitor told his colleagues in 2000 that he’d just seen Sandusky assault a boy in a shower. A few months later, an assistant coach, Mike McQueary, saw another shower attack. Despite all this, Sandusky continued to have access to children for years. Last November, he was finally arrested. The prosecution described him as a serial predator.

Know whom to report to

If a staff member sees or suspects that an inappropriate relationship has taken place between a teacher and student, the staff member needs to know how to report it and to whom. This is where policy and procedure are most important. The policy needs to be specific about how teachers and others in a school should respond to what they see.

Without a clear and adequately communicated policy, some staff members might say, “Oh well, I saw something but I didn’t know what to do.” A good policy is only as good as the understanding of the staff.

Create a culture of protection

Even if a policy against sexual abuse isn’t perfect, the most important thing is to create a culture in which kids are always protected. Nothing should go unreported to the appropriate administrator or law enforcement. Sweeping the dirt under the rug only causes the problem to fester and, as we saw from the Sandusky and Lynn verdicts, harms more than just the victims. We now know that many people and important institutions failed to keep Sandusky from preying on boys, despite direct eyewitness evidence that he was a pedophile.

Development of a school culture that doesn’t tolerate abuse of kids, sexual, verbal or physical, is paramount. Schools need to train their staffs continually about laws regarding the reporting of child abuse and neglect, and about everyone’s responsibility to be watchful and to care enough to act when a child’s safety is at risk.

Hopefully, these verdicts are another wake-up call to schools that they need to be serious about protecting kids. Schools should start the new year by reviewing these cases with their staffs and communicating firm expectations: All kids are to be protected, and any suspicion of harm to a student must be followed up by reporting to a designated person. The message must be, “Stop hurting kids. You can all help by being watchful.”