TITLE IX V. FERPA: WHICH LAW TRUMPS FOLLOWING A SEXUAL HARASSMENT INVESTIGATION – BY: BETSEY HELFRICH

Source: http://www.mickesotoole.com/articles/title-ix-v-ferpa-which-law-trumps-following-a-sexual-harassment-investigation-by-betsey-helfrich/

Excerpt:

 

Sexual harassment of a student is a form of sex discrimination prohibited by Title IX.   Title IX protects students from sexual harassment at school and at school activities, including off-campus school sponsored trips.  Schools have an obligation to respond promptly and effectively to claims of sexual harassment.  Title IX regulations require schools to adopt grievance procedures which provide for the equitable resolution of sex discrimination complaints.  34 CFR 106.8(b).  As part of these procedures, schools generally conduct investigations to determine whether or not sexual harassment has occurred.  If after such investigation, a school determines that a student has sexually harassed another student, the school is responsible for taking immediate effective action to eliminate the hostile environment and prevent its recurrence.  34 CFR 106.31(b).   Steps should be taken to effectively and immediately end the harassment, which may include ordering the alleged harasser to stay away from the complainant or implementing a long-term suspension or possibly even expulsion for the harassing student.  However, this brings us back to the question – does the complainant have the right to know the outcome of your investigation and the consequence for the alleged harasser? Title IX guidance from the U.S. Department of Education says yes.

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What to do when K-12 schools don’t follow Title IX – Adele P. Kimmel

In this excerpt from Sexual Harassment: Not in Our School! Public Justice Senior Attorney Adele P. Kimmel explains schools’ responsibilities to address sexual harassment and assault. Watch the full video at http://bit.ly/2q6dVqt and Part 2 at http://bit.ly/2pvZZs8 Sexual Harassment: Not in Our School! is an empowering video for middle and high school students, K-12 parents, schools, and community organizations. It’s about gender equality in education, students’ protections under Title IX, and much more. As high school students plan for their new gender equality group, we watch them interview nationally recognized education, legal, and LGBTQ experts and learn from counselors, advocates, and students. The video provides practical information on how to address sexual harassment and assault when it impacts a student’s education. Students and experts present powerful yet simple ways to make schools safe and free from sex discrimination. Visit SSAIS.org/video to learn how to bring Sexual Harassment: Not in Our School! to your audience free of charge. Share it widely using the Presentation Guide to start the conversation!

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The Nexus of Autism and Title IX

Source: https://www.insidehighered.com/views/2018/02/08/colleges-should-understand-special-issues-related-autism-and-title-ix-opinion

Colleges should understand the special issues related to autism and Title IX (opinion)

The call came from a former colleague who coaches college students on the autism spectrum. “We’ve got someone who’s in trouble, and we could use some advice. It’s one of those Title IX things.” She told me the story. The student loves punk music and wanted to start a band. He put up fliers on the campus, which in itself was an issue because he violated the institutional posting policy.

But even in today’s climate, I thought, that doesn’t usually rise to a Title IX complaint. She continued. “He wrote something in Morse code on the flyer, a message directed to women, because he was trying to recruit some to join the band. It was a little ‘stalky-creepy’ — OK, pretty creepy — but this guy is totally harmless and clueless and just doesn’t know how to meet women.”

My first reaction was to smile. Morse code? How many college students even know what it is? But it didn’t surprise me to learn this about a student with Asperger’s syndrome, the commonly used term for those with high-functioning autism. Indeed, this kind of situation, I have come to realize, exemplifies a disastrous nexus of two trends on college campuses: the increased awareness of Title IX’s expectations for student behavior and institutional response, and the growing number of students with a diagnosis (or simply just characteristics) of autism who are attending college.

I imagined the student had learned Morse code at the age of 5 and was no doubt still fluent in it. In his mind, a wondrous place created by the distinct neural connections common among those with this diagnosis, the use of Morse code to signal his interest in meeting women made perfect sense. To those who know him, it is one of many quirky characteristics — some of them sweet, some of them annoying — that require a bit of translation for him and about him as he moves within the world of higher education.

That’s what these professionals like my friend do, taking the place of parents who have provided this kind of interpretation for years. They, and occasionally I, try to explain to a student that what is being expected of him is a reasonable request from a peer, a faculty member, an administrator. And then we explain to that peer, professor or staff member that the way the student is responding makes sense when viewed through his eyes. Working with students on the autism spectrum is about 75 percent translation services.

The reason for this lies in the very nature of autism, a communication disorder rooted in brain anatomy. In every interaction we have with another human being, our brains are detecting and calculating thousands of bits of information: the expression on the person’s face and their tone of voice, the context of the interaction, the relationship between the two individuals, the reactions of those who might witness the interaction. At lightning speed, the brain takes in all of this information, calculates it at a rate comparable to that of a powerful computer and spits out a suggestion of how to respond. Every interaction, every day. Our brains never get the credit they deserve for this astonishing feat until something doesn’t compute: a comment is misinterpreted, a joke is not understood. We then must hit the pause button and recalculate, using additional information.

The autistic brain is its own curious computer. Most people know about those Rain Man savants who can calculate large numbers, count cards and repeat lengthy passages from books or movies but are unable to interact normally with others or take care of themselves. Most college students with autism, however, are not like the Dustin Hoffman character. They can interact with others, although they may come off as a little odd. (“Quirky” is the common term.) They can care for themselves, for the most part. They can get to classes and turn in assignments and live, with varying degrees of success, in a residence hall. And they want to do such things, which is why they have been motivated enough to overcome the social and communication challenges their autism presents.

What are they not good at? Interpreting the subtle cues of social interactions, seeing the often fine line between wanted and unwanted attention — flirty and creepy, appropriate and inappropriate. And that is what lands these students in a chair in the office of a Title IX investigator.

My advice to my former colleague was to coach her student to begin the conversation this way: “I have autism” (or Asperger’s, which is sometimes what students prefer to say). “It is a learning difference that sometimes makes it difficult for me to understand the implications of things that I say, or that others say to me. I’m sorry if my posters offended anyone, and I won’t do this kind of thing again.” I heard later from my former colleague that this is what he did, and the situation was resolved through the conversation with the investigator, with no further action required.

Acknowledging Communication Deficits

But I found myself returning to this scenario over the next few days, because situations like it seem to be occurring more frequently, if the requests for assistance I’m receiving are any indication. My background as an experienced student affairs professional, combined with my work with students on the autism spectrum, has given me the opportunity to consult with families and lawyers who find themselves assisting a student with autism who has been charged with sexual harassment or sexual assault.

Over the last decade, the U.S. Department of Education has made clear that sexual assault is a violation of Title IX. In addition, they have broadened the definition of sexual assault to include any unwanted physical interaction of a sexual nature. Colleges and universities have invested considerable money and effort into following, as closely as possible, instructions provided by the Department’s Office of Civil Rights. On most campuses, recognition of Title IX violations and responses to accusations of violations have improved considerably, though many people believe a lot of work still needs to be done to sort out the enormous complexities.

It is not my goal here to dive into a battle that many writers and activists have taken on with great skill. What I do want to assert is that at the root of the many controversies involving Title IX is the lack of a common agreement about many of the crucial terms: consent, sexual nature, unwanted, incapacity and standards of evidence. Even the term “evidence” and what constitutes it is the subject of intense debate.

I cite those terms not because I want to engage in semantic battles but because of this fact: students on the autism spectrum often have a very difficult time interpreting social cues and reading social context to determine what kind of response is appropriate in a social setting. They seek clear and precise instructions and structure in order to manage their worlds, which, because of their neural anomalies, often feel distressingly chaotic.

That is where the second trend flows into the first, two rivers combining to create a third that routinely overflows its banks. The number of students with a diagnosis of autism who are arriving on campuses each year is growing [1]. Ponder this confluence for a moment: an institution where there is going to be a swift response to a student behaving in a way that appears to be inappropriate and a growing number of students who, because of the way their brains are wired, often behave in ways that are unexpected (a less judgmental way of saying “inappropriate”).

Among the students whose families have sought my input are those who have had what they believed to be consensual sex, who have been accused of stalking, and one whose behavior appeared to another person to be sexual in nature but who contended he was moaning and rubbing the groin muscle he had just pulled. That particular claim was supported by a staff member who happened along right after the accusing party had observed him; he stopped to ask the student, whom he knew, what was wrong and was told by the accused student that he had just injured himself. Nevertheless, he was the subject of a complaint from the initial observer and went through a humiliating and stressful investigation into his actions (and was ultimately exonerated).

We have all heard about male students who believe they have been wrongly accused of sexual assault and of the growing concern among activist groups and family members that the pendulum of response to sexual assault on campuses may have swung too far in the direction of believing accusers to the exclusion of considering other perspectives. That debate will continue, perhaps indefinitely. Those who are survivors of sexual assault and their defenders want to be believed, a reasonable request. But those who feel they have been unfairly accused are equally determined to uncover what they feel is a rigged system.

What I am suggesting is that among those who have been accused are some with a diagnosis, or characteristics, of autism spectrum disorder. Let me make this clear: such a diagnosis does not excuse behavior, does not mean someone could not have sexually harassed or sexually assaulted another person. It does not mean that if a student is found responsible for such an act, they bear no responsibility. I am speaking here of those students whose communication deficits leave them at a significant disadvantage in their interactions with peers.

As most of us would probably admit, the social landscape of traditional-aged college students is, at best, one of mixed messages, uncertain responses, peer pressure and alcohol-impaired judgment. Asking a student with a communication disorder to interpret subtle, or even not-so-subtle, signals is akin to expecting a student with a visual impairment to read a “No Entry” sign on a door and then faulting the student for walking through it, or holding a hearing-impaired student accountable for not exiting a building during a fire drill that involves only an audible fire alarm.

Sadly, it also leaves those students vulnerable to the bullying or ridicule of their peers, some of whom find great sport in exploiting the apparent social ineptitude of others. Perhaps they encourage a student on the spectrum to pursue a woman he likes, assuring him she shares his interest. For a student on the spectrum, it does not seem logical that someone would lie about such a thing. Lying is one of those enormously complex brain operations that we take for granted until we encounter someone who is unfailingly honest and trusting.

Small-A Accommodations

Student conduct officers have long been familiar with students on the autism spectrum and the particular difficulties they face on a college campus. These students are sometimes disruptive in classrooms because they talk out of turn or say things others believe are inappropriate. They can create residence hall challenges because of their sometimes inflexible commitment to following rules (and expecting others to do the same) or sensory sensitivity. Conduct professionals have been negotiating “stalking” claims for years, trying to help a student with autism understand appropriate boundaries or one who feels “stalked” make clear and unambiguous statements about their lack of interest in the accused student’s attention.

But there is now another minefield for these students and conduct officers to navigate: the increasing willingness of a student to report behavior they believe violates Title IX. Again, there can be great benefit in this willingness. But are Title IX investigators and hearing officers, many of whom have not previously worked in the student conduct arena, aware of the challenges that students with autism bring to campuses and the challenges those students themselves face?

Both of these streams — Title IX-based reporting and the matriculation of students with autism — will continue to grow. Colleges have a duty to the students they’ve admitted, especially students with known disabilities, to assure proper training and response. The Americans With Disabilities Act requires it.

But a student may exhibit autistic characteristics and lack a formal diagnosis. Or they might never have been told they have autism. Or they may know but choose not to disclose. A recent study [2] of over 600 students at one institution showed that while just 10 first-year students disclosed a diagnosis of autism, 148 students reported they had enough autism-related characteristics to warrant a clinical assessment.

One could say that failing to disclose removes from the institution any responsibility to treat the student differently. But if certain characteristics and deficits may lead to a student being suspended or expelled, does it not seem incumbent on institutions to be certain they are fully capable of making such distinctions?

In my work with campus staff, I often differentiate between “capital-A accommodations” and “small-A accommodations.” The former are those that have been determined by the disabilities professionals charged with making these decisions and include things like extended time on tests, a single residence hall room or a distraction-free environment for exams. Small-A accommodations are demonstrated by, for example, an instructor’s patience with a student who blurts out answers in class. A small-A accommodation is the result of understanding that a person’s overreaction to a situation or a person’s inability to fully grasp another’s perspective are not signs of moral weakness but a difference in brain wiring.

A small-A accommodation costs nothing but has tremendous value. It may mean the difference between a passing grade and a failing one, a successful semester in a residence hall and being asked to leave because of chronic disruptions. In Title IX-related situations, the stakes are high. A student found responsible for a charge of harassment or assault may lose their opportunity to continue their education. Lawyers and costly expenses may be involved. A lot of staff time is monopolized by a charge and its fallout. Students with autism are not, of course, incapable of harassing or assaulting others. But often their behavior is misinterpreted in a way that starts those involved down a slippery slope of accusation, denial, frustration and sanction.

It could be different. A knowledgeable Title IX investigator and hearing officer can interpret a situation through this lens and perhaps help all parties reach different conclusions.

The streams of both Title IX awareness and students with autism enrolled in college are rising rapidly. Administrators must do more than stack sandbags. We must more fully understand the nature of autism, the campus experience of students with autism and the confluence of these students’ experience with the expectations students have for one another and their institutions when it comes to sexual assault response. Too many students are being swept downstream when a simple handrail and a warning sign might have kept them from slipping into the water in the first place.

Lee Burdette Williams is the director of higher education training and development for the College Autism Network [3].

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The Sexism of School Dress Codes

Source: The Atlantic

These policies can perpetuate discrimination against female students, as well as LGBT students.

Maggie Sunseri was a middle-school student in Versailles, Kentucky, when she first noticed a major difference in the way her school’s dress code treated males and females. Girls were disciplined disproportionately, she says, a trend she’s seen continue over the years. At first Sunseri simply found this disparity unfair, but upon realizing administrators’ troubling rationale behind the dress code—that certain articles of girls’ attire should be prohibited because they “distract” boys—she decided to take action.

“I’ve never seen a boy called out for his attire even though they also break the rules,” says Sunseri, who last summer produced Shame: A Documentary on School Dress Code, a film featuring interviews with dozens of her classmates and her school principal, that explores the negative impact biased rules can have on girls’ confidence and sense of self. The documentary now has tens of thousands of YouTube views, while a post about the dress-code policy at her high school—Woodford County High—has been circulated more than 45,000 times on the Internet.

Although dress codes have long been a subject of contention, the growth of platforms like Facebook and Instagram, along with a resurgence of student activism, has prompted a major uptick in protests against attire rules, including popular campaigns similar to the one championed by Sunseri. Conflict over these policies has also spawned hundreds of Change.org petitions and numerous school walkouts. Many of these protests have criticized the dress codes as sexist in that they unfairly target girls by body-shaming and blaming them for promoting sexual harassment. Documented cases show female students being chastised by school officials, sent home, or barred from attending events like prom.

Meanwhile, gender non-conforming and transgender students have also clashed with such policies on the grounds that they rigidly dictate how kids express their identities. Transgender students have been sent home for wearing clothing different than what’s expected of their legal sex, while others have been excluded from yearbooks. Male students, using traditionally female accessories that fell within the bounds of standard dress code rules, and vice versa, have been nonetheless disciplined for their fashion choices. These cases are prompting their own backlash.

Dress codes—given the power they entrust school authorities to regulate student identity—can, according to students, ultimately establish discriminatory standards as the norm. The prevalence and convergence of today’s protests suggest that schools not only need to update their policies—they also have to recognize and address the latent biases that go into creating them.

* * *

At Woodford County High, the dress code bans skirts and shorts that fall higher than the knee and shirts that extend below the collarbone. Recently, a photo of a female student at the school who was sent home after wearing a seemingly appropriate outfit that nonetheless showed collarbone—went viral on Reddit and Twitter.
Read more ……… 

 

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School districts ramp up training after Forest Hills sex assault lawsuit, federal investigation

GRAND RAPIDS, MI – After watching Forest Hills Public Schools undergo a federal investigation and lawsuit for its handling of a student’s campus sex assault allegations, school districts in the region are being more proactive about training employees.

“What was and is a difficult situation for Forest Hills is a learning opportunity for other school districts,” said Coni Sullivan, assistant superintendent for Human Resources and Legal Services for the Kent Intermediate School District. “We want districts to be proactive in approaching any type of harassment, not just Title IX.”

Title IX prohibits discrimination on the basis of gender in all education programs or activities that receive federal financial assistance. While most commonly known for promoting gender equality in sports participation, it protects against any type of sex-based harassment, such as sexual violence.

On Wednesday, Forest Hills Superintendent Dan Behm confirmed the district settled the federal lawsuit regarding the 2010 alleged sexual assault of a 15-year-old at Forest Hills Central by a student athlete for $600,000.

Related: School pays former student $600K for sex assault, harassment claims

Under Title IX, schools districts are required to respond promptly and effectively to student-on-student sexual harassment and assault to mitigate the effects of the hostile learning environment.

This spring and summer, the Kent Intermediate School District and other ISDs, as well as individual school systems, are doing extensive Title IX compliance and investigation training. On Wednesday, Katie Broaddus, an attorney with Thrun Law Firm, trained all Byron Center schools’ administrators and directors.

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In March, U.S. District Judge Paul Maloney ruled Forest Hills failed to train school workers on response to complaints of sexual assault and harassment. And the U.S. Department of Education’s Office of Civil Rights said the 10,000-student district failed to properly investigate claims by the girl in its report.

Related: Former Forest Hills student’s report of sex assault, harassment a challenge for families, district

Sullivan said the ISD held April and May training and one is scheduled for August that will continue to drill down on Title IX, all related laws and how to conduct thorough investigations. She said school leaders know now that OCR expects a parallel investigation to what law enforcement is engaged in if the case is criminal – and that it needs to be timely.

“When it comes to investigating alleged sexual harassment that also could be a crime, you can’t just punt to police,” said Lisa Swem, an attorney with Thrun Law Firm, who conducted Title IX training sessions for KISD.

“School officials are committed to complying with Title IX. “I think the OCR position is challenging, particularly when it involves an alleged crime. The fact of the matter is educators are not trained criminal investigators or forensic interviewers.”

Swem said Title IX cannot be looked at in a vacuum. She said there are many layers because of the different laws that can come into play, such as Family Educational Rights and Privacy Act, which generally prevents the disclosure of confidential information about other students.

School districts are sending more staff to be trained now, not just the designated Title IX coordinator or human resources staff,

“Once the news about Forest Hills came, I knew we had to train all our principals and directors,” said Byron Superintendent Dan Takens about Wednesday’s district training and sending staff to ISD sessions. “We all need to know what to look for and the appropriate steps to take.”

Northview Superintendent Mike Paskewicz said district administrators will undergo training in August. He said Forest Hills thought they were following appropriate procedures but everyone is aware now that OCR is expecting something more rigorous.

“Districts have to be very specific about their sexual harassment policies and be prepared to investigate,” he said.

Forest Hills said that a Kent County sheriff’s detective told them not to conduct their own investigation – a claim authorities later denied.

Swem is encouraging school leaders to be proactive and meet with their local law enforcement to better understand one another’s roles and responsibilities and to educate them on their federal responsibilities under Title IX.

The Ottawa and Muskegon ISDs will host a one-day training on June 24 to ensure that “reports and complaints are adequately, reliably and impartially investigated.”

Monica Scott is the Grand Rapids K-12 education writer. Email her atmscott2@mlive.com and follow her on Twitter @MScottGR or Facebook

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