U.S. Civil Rights Office issues update to schools on sexual violence policies

In response to escalating reports of sexual harassment on school campuses, the federal Office of Civil Rights has issued recent guidance on schools' responsibilities when dealing with serious criminal acts - such as rape - and more common battery issues.

Russlyn Ali, the U.S. Department of Education's Assistant Secretary of Civil Rights - reported that in 2007-08 there were 800 incidents of rape and 3,800 incidents of other sexual violence at public high schools. Within the nation's college campus, one in five women reported in that same year incidents or attempted incidents of sexual assault; for men, 6 percent.

In an April 4 letter to state education officers, local schools, colleges and related public agencies, Ali reminded that Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by schools receiving federal assistance. Title IX additionally considers acts of sexual violence as a form of discrimination.

As defined, sexual harassment is an unwelcome conduct of a sexual nature" that creates a hostile environment, which interferes with the student's educational program. Additionally, Title IX protects students in connection with any school activity on or off campus including sports, field trips, or other school-sponsored programs that take place off campus.

The term covers a wide landscape of offences, which in the past has caused school administrators some uncertainty.

In a brief by education law firm Lozano Smith released this week, attorney Sloan Simmons offers interpretation of sexual violence to include "physical sexual acts perpetrated against a person's will, or when a person is incapable of giving consent due to drug use, alcohol use, or a disability. Some acts that fall into the category of sexual violence include rape, sexual assault, sexual battery, and sexual coercion."

Sloan notes that Title IX also prohibits gender-based harassment, "which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature."

The U.S. Department of Education's April letter is intended as a supplement to the 2001 Revised Sexual Harassment Guidance from the federal Office of Civil Rights.

But part of the letter's focus is to remind school leaders they carry the burden of responsibility to prevent such occurrences but there is also emphasis on what to do once an incident is reported.

Districts must: 1) disseminate a notice of nondiscrimination; 2) designate a Title IX coordinator; and 3) adopt and publish grievance procedures that provide a quick and equitable resolution of student and employee sex discrimination complaints.

Additionally, the letter reminds schools of additional responsibilities:

The school's inquiry must in all cases be prompt, thorough and impartial and determine whether law enforcement or other officials should be contacted.

Properly train staff, including administrators, to ensure they understand what types of conduct are considered sexual harassment, and of the school's grievance policies and procedures.

Notify the victim of their right to file a criminal complaint and not dissuade them from doing so during or after the school's internal Title IX investigation.

Schools should not wait for the conclusion of the criminal investigation to begin their own Title IX investigation and take immediate steps to protect the student at school.

Throughout the school's investigation, both parties in the complaint must have equal and timely access to any information that will be used in a hearing and equal opportunity to provide relevant witnesses or evidence.

If the school chooses to allow the parties to have their lawyer present at proceedings, it must do so for both parties.

School should ensure that the provision of due process for the alleged perpetrator do not restrict or delay the Title IX protections of the victim.

Schools must also devise plans to provide programs to educate students in hopes to prevent future incidents, and to notify both parties in writing once the complaint has been resolved or an appeal is to be made.

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