By Thompson & Horton’s Title IX Team

The 2020 Title IX Rules provide detailed training requirements for school district personnel who serve in formal roles in the Title IX grievance process, including the Title IX Coordinator, investigators, decisionmakers, appeal officers, and informal resolution facilitators. In their efforts to ensure all designated Title IX personnel are trained, schools may overlook the need to educate and train K-12 campus personnel—especially principals, assistant principals, counselors, and teachers—about the rules of the road when it comes to responding to allegations of sex-based misconduct, including harassment in schools.

K-12 campus employees are often the first to learn about allegations of sex-based misconduct at their schools. To their credit, building administrators usually work quickly to address problems at their campus. In some instances, campus administrators have already investigated allegations of sex-based misconduct and taken disciplinary action before the Title IX Coordinator is ever called. Although a proactive response to reported misconduct is laudable in many cases, in the context of a school’s Title IX obligations these actions can be the basis of an OCR complaint or other Title IX dispute.

Campus personnel at K-12 schools need to know what they should do and what they should not do when they learn or receive a report about potential sex-based misconduct, including harassment, at their schools. Here are some DOs and DON’Ts to get this essential conversation started. You can also use this convenient flyer to drive home these important tips. We recommend having copies on hand for campus personnel, including principals, assistant principals, counselors, and teachers, so that they can refer to it whenever they receive information about alleged sex-based misconduct at their schools.

The “DO”s

1. Do Notify the Title IX Coordinator

Campus administrators should contact the Title IX Coordinator as soon as they have any notice of sex-based misconduct, including harassment, at their schools. Your institution’s Title IX Coordinator can help a principal or other building administrator respond appropriately and ensure the principal fully complies with Title IX rules, your school district’s policies, and best practices.

2. Do Assess Safety

One of the reasons contacting the Title IX Coordinator is so important is that the Title IX rules prohibit imposing any punitive or disciplinary consequences on an alleged perpetrator of Title IX sexual harassment unless and until the Title IX grievance process is complete. One question we often hear from building administrators is “Wait, are you saying we can’t do anything if there is a dangerous student in our school”? There are things that can be done to address any safety issues for students or the school environment raised by a report or allegation.

Campus administrators should assess the situation to determine if there are safety issues for students or the school environment. If a student is in immediate danger or poses an immediate danger or threat to themselves or others, you should remove the student from the environment immediately. But a suspension is not the proper method for the removal. The campus should move the student to a safe area with adequate supervision. Consider using an administrator’s or counselor’s office. Upon securing the environment, the school should immediately contact the Title IX Coordinator for what to do next.

A campus administrator’s initial response to safety concerns is a brief and temporary measure; it is not a disciplinary decision.

3. Do Contact Law Enforcement, Medical Personnel, and Parents/Guardians

Campus administrators should also consider whether they must make any necessary contacts to address initial information about alleged sex-based conduct they have received. This may include contacting law enforcement, medical personnel, and the parents or legal guardians of the students involved.

Law Enforcement: If the allegations include a serious crime, the campus administrator should contact law enforcement. Remember, in Texas, principals or their designees are required to report to local law enforcement regarding certain sex-based misconduct including indecency with a child, sexual assault, aggravated sexual assault, injury to a child, sexual performance by a child, and continuous sexual abuse of a young child or children. If principals have questions regarding required contact with law enforcement, they should consult their school district’s board policies GRAA (Local)/(Legal)/(Exhibit).

The campus administrator may also need to contact law enforcement if the allegations involve evidence of an illicit nature where law enforcement is needed to collect the evidence. For example, if the allegations involve sexual photographs or video recordings involving a minor, only law enforcement should retrieve and preserve such evidence.

Medical Personnel: If the allegations involve an injury to anyone, campus administrators should follow District policy and practice regarding responding to injuries.

Generally, if a student has suffered an injury, the school nurse should contact the student’s parents or legal guardians immediately. If the injury is serious or requires an immediate response and the parent or guardian cannot be reached, the school should follow the specific instructions provided by the parent, if any, including authorization for the school to obtain emergency medical treatment.

Parents: Schools should follow their standard policy and practice with respect to contacting parents or legal guardians. In Texas, school district policies FFH (Local) and FFF (Local) require prompt notification of parents if their child is alleged to have experienced prohibited conduct by a school employee or another adult.

4. Do Complete Mandated Reporting

Campus administrators and employees may have mandated reporting responsibilities under state law. In Texas, all school employees are considered professional reporters and are required to report suspected child abuse and neglect to law enforcement or the Texas Department of Family and Protective Services (TDFPS) Child Protective Services division (CPS).

Reports must be made immediately, but no later than 48 hours of the initial suspicion of abuse or neglect. Reports can be made to the local police department, or the CPS Division of TDFPS at (800) 252-5400 or at www.txabusehotline.org.

5. Do Consider Special Education

If the alleged victim or perpetrator of sex-based misconduct is a student with a 504 plan or an IEP, the school should contact the relevant special education administrator to consider the impacts on the student’s special education placement and services.

The “DON’T”s

There are quite a few things campus administrators can do when they receive a report or other information suggesting that sexual harassment has occurred. But there are also many things that building administrators must avoid in these cases. Training campus administrators on what they should not do until the Title IX Coordinator or their designee decides if the Title IX grievance process applies is an essential part of Title IX compliance.

1. Don’t “Investigate”

No campus employee or administrator should investigate allegations of sex-based misconduct, including harassment, until the Title IX Coordinator or their designee decides whether Title IX applies. While campus officials may speak with the alleged victim, their parents/guardians, and any reporting party to get more information about what is claimed to have occurred, they should not “investigate,” including conducting any type of investigative interview and seeking statements of involved individuals or witnesses. In other words, the principal can ask what is alleged to have happened, but the principal cannot ask for evidence or other information that supports the allegations. The campus administrator should also not ask for or collect evidence.

If the Title IX Coordinator determines that the Title IX grievance process applies, a designated Title IX investigator who has received appropriate training will investigate following all Title IX rules. In some cases, the Title IX Coordinator or investigator may decide the matter does not implicate Title IX, in which case the investigation may be returned to the building.

Even if the Title IX Coordinator says Title IX does not apply, school officials should consider whether another, non-Title IX policy requires investigation. For example, in Texas, policies FFH and FFI contain very specific processes that must be followed for certain types of complaints, including bullying.

We find many Texas schools are failing to use FFH and FFI correctly for complaints that should trigger them. If your school would like to increase compliance with these requirements, join us for our upcoming virtual training, FFH and FFI Investigation Bootcamp for Texas Administrators on September 13, 2022.

2. Don’t Discipline

The campus cannot discipline either party, the alleged victim or the alleged perpetrator of the sex-based misconduct. While the principal can “assess safety” and take immediate, brief, and temporary steps to secure the educational environment, discipline is not permissible at this stage if Title IX applies.

Under the Title IX rules, a person who is alleged to have engaged in Title IX sexual harassment cannot be disciplined until the school completes the Title IX grievance process and there is a determination that the person is responsible or not responsible for the allegations of sexual harassment.

If the principal is concerned that there is an imminent threat to a student or the school environment arising from the allegations of sex-based misconduct, the Title IX Coordinator will evaluate if potential emergency removal of a student from school or school activities is appropriate.

3. Don’t Violate Confidentiality

Indeed, campus administrators should not even disclose the alleged victim’s name or any information that could identify the alleged victim with an alleged perpetrator before the Title IX Coordinator or their designee has decided whether Title IX applies. We recommend that building administrators and employees avoid even advising the alleged perpetrator that a report has been made until they receive the “all clear” from the Title IX Coordinator or designee. Why? The Title IX rules require that, unless a formal complaint is filed or the alleged victim and their parents/guardians allow disclosure, the school maintain the confidentiality of the complainant and their report, including from the alleged perpetrator. The idea is that for such serious allegations of misconduct, the alleged victim and their parents/guardians should decide whether the alleged perpetrator is notified of the reported conduct—not the school.

Help is Here

As you can tell, with Title IX sexual harassment cases, nothing about the way school officials must respond is “normal.” Gone are the days of pulling an alleged perpetrator out of class, grilling them on the allegations, and sending them home quickly on a suspension. We know that this can be confusing for building administrators and employees. To help ease the confusion, Thompson & Horton has prepared the attached document, which schools can provide to their campus administrators to ensure they know the “DO”s and “DON’T”s regarding how to respond to an initial report of sex-based misconduct.

Training for campus administrators on their roles in complying with Title IX, including appropriately responding to initial reports and other information about alleged sexual harassment in the school’s education programs and activities, is essential. Thompson & Horton offers effective, engaging, and economical training for building level administrators, including building-level Deputy Title IX Coordinators or campus Title IX liaisons.

School districts should also train all school district employees about: (1) the school’s prohibition on sex discrimination and sexual harassment; (2) the definition of sexual harassment under Title IX; (3) how to detect and report sexual harassment within your school district; and (4) how to appropriately respond to allegations of sexual harassment.

If you have any questions about this post or need any assistance with training your school personnel about its Title IX obligations regarding reporting and responding to allegations of sexual harassment, please contact your Thompson & Horton attorney or any member of T&H’s Title IX team.