Title IX bans sexual discrimination. The U.S. Department of Education enforces it. Last year the Department proposed new rules on sexual harassment in school and college and invited the public to comment. Secretary DeVos has yet to reveal the results. The public will surely have given her an earful on the new rules’ impact on college students. Many fewer will have spoken up about their effect on schoolchildren.
Discrimination, Harassment and Federal Court
In 1972 Congress outlawed “discrimination” in all schools and colleges taking federal money. Title IX authorized the Department to take the federal government’s money back from institutions that failed to follow its regulations. The Department issued a few general rules, and for the next twenty years schools and colleges fell in line. They set up grievance procedures to hear formal complaints from students and employees. They put resources into new programs for girls and women, especially in athletics. No one ever had their funds withdrawn.
Meanwhile, the separate issue of “harassment” made its way through the federal courts. Judges concluded that it was banned as well. In 1999 the Supreme Court capped a series of decisions on elementary and secondary schools’ liability for their students’ behavior towards each other. It held that a victim of sexual harassment in school could win money damages in a private suit against their district. They had to prove that they were prevented from taking full part in classes and activities by their school’s ‘deliberate indifference’ to sexual hostility from classmates. Now a victim did not have to complain about their district’s discrimination; they could take it to court for harassment.
Unrest on Campus
The Department of Education’s Office of Civil Rights advised administrators that it would adopt this standard in its own enforcement efforts — and then for colleges went further. OCR warned colleges it would hold them responsible not just for harassment they knew about, but for harassment they should have known about. It advised that in some cases it might see ‘consensual’ kissing between college students as harassment. It cautioned college administrators to go beyond stopping harassment to “repairing” its effects. Most contentiously, it permitted officials to hold college students guilty of sexual harassment based on the preponderance of the accuser’s evidence.
OCR’s ‘guidance’ dissatisfied everyone. College administrators, professors and students all complained about confusing standards. In 2017 the Trump administration began to change direction. It withdrew some guidance and proposed the new regulations.
With one key exception, they will apply to all institutions equally. On the one hand, in responding to evidence of harassment, colleges must now follow the federal courts’ standard of ‘deliberate indifference’. On the other, in responding to formal complaints from their students, college officials must hold a public hearing. They must allow the accused to cross-examine the accuser.
Children are not adults.
But elementary and secondary schools will not have to hold a hearing. Treating schools separately is a radical change for the Department. There are good reasons for it.
A hearing is hard enough on a college student. It would emotionally devastate a schoolchild. Even the most mature teenager would shrink under the cross-examination of an experienced adult attorney. The Department puts it more formally:
“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.”
It is difficult to imagine any parent putting their child through it.
They do not need to. A victim can take a school district to court as Jane or John Doe. They can win money damages and attorneys’ fees. No one would forgo this anonymity and compensation for a public hearing, especially since they only thing they can gain by it is the chance to see their school formally agree they had been harassed.
Due Process in School
School officials will have a different reason to avoid hearings. Their lawyers will advise them that under federal law they do not have to hold them. Judges recognize that schools care for children, not adults. They give officials the authority and discretion to keep order among pupils as they see fit. Again, the Department formally recognizes this: 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 law requires less due process from principals and teachers than it does from people that keep order among adults. School officials must hold a hearing in order to expel a pupil, but they need not allow cross-examination. No judge would decide that a complaint of sexual harassment required more due process.
‘Unworkable’ Rules on Sexual Harassment in School
In inviting comments the Department stated that it was “interested in whether there are parts of the proposed rule[s] that will be unworkable at the elementary and secondary school level.” People are going to be arguing about the new regulations’ impact on colleges for years. But the public’s comments on the new rules for sexual harassment in school should all run in the same direction. .