Sexual violence is occurring in our nation's high schools in staggeringly high numbers. Even though it remains an extremely under-reported crime, the available data points to its prevalence in secondary schools.
Almost 4,000 incidents of sexual battery and over 800 rapes and attempted rapes were reported in public high schools in the 2007-2008 school year. And by the time they graduate from high school over one in ten young women will be forced to have sexual intercourse. Schools are not only in a good position to prevent and respond to sexual violence, but they are also required to by law. Title IX of the Education Amendments of 1972 ("Title IX"), is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. All public and private elementary and secondary schools, school districts, colleges, and universities receiving any Federal funds must comply with Title IX.
On Monday, April 4, the Department of Education's Office for Civil Rights released a Dear Colleague letter to explain that the requirements of Title IX cover sexual violence and to remind schools of their responsibilities to take immediate and effective steps to respond to sexual violence.
Students who are victims of sexual violence must overcome major challenges as they try to meet school obligations while coping with the emotional and physical effects of the violence they have endured. In order for students to succeed in school, they must feel safe and attend to their mental and physical well-being. The new guidance reinforces schools' Title IX obligations to create safer schools for both individual students who are survivors of sexual violence and the entire student population, and suggests steps to make that happen.
School's Responsibilities under Title IX
The letter provides clear explanations of each school's responsibilities to respond to sexual violence and examples of how a school might fulfill these requirements. The next few paragraphs highlight some of the most important pieces of the guidance. Schools have always been required under Title IX to allow students to file complaints regarding sex-based discrimination. The new guidance clarifies that sexual harassment and sexual violence are included in the umbrella term "sex-based discrimination." In addition, the guidance clarifies that students can file complaints of sexual violence regardless of where the incident took place. This acknowledges that students may feel uncomfortable in school as a result of an incident that happened off school grounds, especially if the perpetrator attends the same school or other students find out about the incident.
The letter emphasizes that schools must have clear steps for students to file complaints under Title IX and make this widely known throughout the school community. This is especially important in regards to sexual violence - students are already hesitant to report it and are unlikely to look for ways to get help from their schools. Schools have to investigate all claims of sexual harassment and sexual violence, and they have to do this separately from any simultaneous law enforcement investigations, as long as it does not compromise a criminal investigation. In other words, schools have to conduct their own investigations whether or not a student chooses to report the violence to law enforcement or pursue court proceedings, or if a court finds the alleged perpetrator not guilty. The legal standard for a Title IX violation is the preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred), a lower standard than needed to convict someone of a crime.
One of the most important pieces of the new guidance is its requirement that schools are responsible both for ending any ongoing violence and for preventing further harassment or violence from occurring. This shifts the emphasis from punishing the perpetrator to ensuring the victim's safety. A survivor may need special accommodations to feel safe in school. This means providing a survivor with the option of receiving special accommodations whether or not the perpetrator is punished. The letter gives examples of actions schools can take to prevent further incidents, which range from changing class schedules to providing counseling services. The new guidance stresses that the burden of change should fall on the perpetrator rather than the survivor when possible to prevent re-victimization.
Ensuring Success in School Initiative
The new guidance offers greater clarification of Title IX as it relates to the challenges students who are victims of sexual violence face in school and prioritizes the safety of students over all other considerations. The Shriver Center applauds the Office for Civil Rights on their renewed commitment to creating safe schools that allow all students to achieve success.
The Women's Law and Policy Project at the Shriver Center created the Ensuring Success in School Initiative in 2003 to promote the safe and successful completion of school among elementary and high school students who are parents, expectant parents, or victims of domestic or sexual violence. As part of this effort, the Ensuring Success in School Task Force was statutorily created, and in June, 2010, the Task Force submitted its final findings and recommendations to the Illinois General Assembly. These recommendations are well complimented by the new guidance from the Office of Civil Rights, highlighting both the national nature of this problem and the responsibility of schools to respond promptly and effectively. Indeed many of the Task Force's recommendations are included in the clarification of Title IX, making the adoption of the Ensuring Success in School Task Force recommendations even more salient.
For more information contact Wendy Pollack, director of the Women's Law and Policy Project at the Shriver Center at wendypollack@povertylaw.org.
Hannah Green, domestic and sexual violence education and economic opportunity specialist at the Shriver Center, contributed to this article.