IV. School Disciplinary Codes Under Title IX
In his dissent in Davis, Justice Kennedy argued that school districts already had enough trouble identifying peer sexual harassment prior to that decision, as evidenced in their teachers' manuals.As he noted, one manual suggested that "one student saying to another, 'You look nice,' could be sexual harassment, depending on the 'tone of voice,' how the student looks at the other, and 'who else is around.'" Of course, the Davis decision predated OCR's issuance of the Revised Sexual Harassment Guidance in 2001, which formally required that schools, including elementary schools, "disseminate a policy against sex discrimination." Accordingly, since that decision was issued, sexual harassment policies have moved from being written for teachers in manuals to being disseminated to children, including some as young as kindergarten students, and their parents.
OCR has provided some guidelines for the content of these policies, including that the grievance procedures "be written in language appropriate to the age of the school's students, easily understood, and widely disseminated," but it has left much up to the discretion of individual schools. "Although sex discrimination policies need to pointedly address sexual harassment so that students and staff understand that the policy encompasses sexual harassment, the exact content of the policy is not regulated." Not surprisingly, the policies can vary widely from school district to school district and are frequently vague and subjective. For example, Belle Hall Elementary School in Mount Pleasant, South Carolina, has a sexual harassment policy that forbids "staring at a person's body" and "deliberately standing in someone's way," along with "unwanted grabbing, hugging, kissing, fondling, or similarly touching a person in any way." At Ohlone Elementary School in Palo Alto, California, the sexual harassment policy prohibits "sexual jokes," "spreading sexual rumors," and "overly personal conversation."
Policies that are vague and/or that rely heavily on adjectival modifiers (e.g. "overly personal conversation" or "inappropriate public displays of affection") invite problems of selective enforcement. As noted above, in the context of student disciplinary proceedings, this selective enforcement can often disparately impact students of color, even for very young students. Further, in too many elementary schools, the policy is inaccessible to students in the first place. A recent study of Title IX policies in K-12 schools found that "policies at the elementary school level were consistently found to be relatively inaccessible and those that were accessible lacked comprehensive coverage of the OCR . . . guidelines." As discussed above, the OCR has repeatedly communicated that schools should take children's age into account when assessing whether behavior violated Title IX (although, in fairness to schools, OCR has also indicated a willingness to launch Title IX investigations for behavior involving elementary school students). Nonetheless, schools still fail time and again to do this, punishing students even for the specific behavior identified by OCR as a classic example of what is not sexual harassment. For example, the Revised Sexual Harassment Guidance explicitly provides that "a kiss on the cheek by a first grader does not constitute sexual harassment." However, twelve years after that Guidance was provided, a Denver elementary school suspended a six-year-old boy for several days for kissing the hand of his first-grade classmate. The school's principal used the term "sexual harassment" during a meeting with the boy's mother, and the superintendent explained to a reporter that the suspension was because the boy had violated a school policy against "unwanted touching."
V. The Role of Attorneys in Creating Change
Traditional challenges to school discipline have generally alleged a lack of the due process protections that were outlined in the Supreme Court's seminal Goss v. Lopez decision, which provided that students who were facing suspension had to be given, at a minimum, notice and an opportunity to be heard. Those protections are indeed minimal, and, in any event, in the years since the Goss decision, "courts have surprisingly grown even less willing to seriously entertain discipline claims, whether under procedural or substantive due process." As a general rule, scholars have largely concluded that, beyond a challenge alleging a lack of notice or hearing, little could be done in the courtroom to address unfair school disciplinary codes because most legal challenges to school discipline are "likely to come up short, mostly due to judicially imposed requirements that litigants prove discriminatory intent . . . as well as the long history of federal courts' reluctance to second guess school discipline decisions and not wade into what are viewed as local or state issues." Although recent scholarship promotes the novel idea of using state constitutions as the basis for a broad legal challenge to discriminatory school discipline practices, that strategy is currently both untested and incomplete, as state constitutions vary in their language regarding educational rights and state courts vary in their willingness to enforce the rights.
Of course, OCR has the power to independently investigate school discipline under several acts, and this avenue is the now "primary means" of reformers. However, these administrative remedies are not only limited, they are also "subject to discretionary underenforcement and retraction at any time." There is some evidence that the Trump Administration has already begun to limit the scope of the civil rights investigations that OCR will engage in. Accordingly, an attorney can certainly encourage a parent to make a complaint to the OCR, but a resulting remedy is fairly uncertain and one that can take quite some time.
This all adds up to an unclear path forward for the attorney whose client believes his or her elementary school child has been unfairly disciplined for conduct under a Title IX sexual harassment policy. As a threshold matter, the attorney may not be guaranteed a role in the challenge of the discipline, as not all states allow an attorney to be involved in school disciplinary proceedings. Further, the cost of an attorney's involvement may be prohibitive for many families. This has led to calls for a Gideon-like right to counsel for students facing expulsion, as well as for deeper involvement from law school clinics. In any event, involving an attorney may be the only way for a parent to help his or her child, as was the case with Ms. Subrata and her son, mentioned at the beginning of this Article. The attorney may be able to refer the school officials to the OCR's Guidance and/or offer the school officials some reassurance by pointing out how hesitant federal courts are to find school districts liable under Title IX. Obviously, if the situation is so serious that the child is facing criminal charges or any permanent discipline such as expulsion, it will be critical to have an attorney involved.
However, given that courts are generally unwilling to second-guess school disciplinary decisions, including a decision to discipline a child for a perceived violation of a sexual harassment policy, the threat of litigation may not carry with it much weight. A threat to litigate over a child's suspension or other disciplinary action is unlikely to succeed for another reason: even the federal courts that have refused to find school district liability and have questioned whether young children can even be sexual harassers in the first place have nonetheless noted positively schools that took active steps to discipline children under these codes. Thus, an attorney in this situation is stuck between a rock and a hard place: threats of litigation have been successful in high-profile cases, but a lawsuit claiming anything other than a specific lack of one of the Goss due process protections is unlikely to succeed. What might ultimately be most helpful is for the practitioner to attempt to thread the needle of establishing a willingness to act aggressively on behalf of the client if necessary but also a willingness to sit down with school officials and work out a reasonable solution.
The fact that lawsuits are unlikely to be successful avenues for change does not mean that there is no role for attorneys to play in this process. Attorneys can work with school districts to both improve the language and clarity of their Title IX policies and help ensure that the implementation of those policies is fair. In addition, attorneys can join other citizens in lobbying for changes to state and local laws to end zero tolerance policies for elementary school students and give more discretion to school officials to craft commonsense solutions. For example, due in part to the outcry over the six-year-old boy who was suspended for singing "I'm sexy and I know it" to a classmate, a week after his suspension, the Colorado legislature passed a bill aimed at easing disciplinary measures in schools there. And, of course, attorneys can participate in the formal notice-and- comment process that is scheduled to begin in March of 2018 to provide input to OCR about how best to handle the problem of sexual harassment and sexual assault in schools.
Meaningful change can also be lobbied for at the local level. In January of 2016, the Houston Independent School District banned "discretionary removals" (expulsions not required by law) for children in grades Pre-K through second grade. "Ultimately, the [Houston] proposal was adopted because a number of people and organizations were vocal in their support for change--state legislators wrote Op-Eds and spoke at School Board meetings, community organizations rallied their memberships and showed up at meetings, advocates published data and wrote letters, and several School Board Trustees were unequivocal in their support for the ban." Similar bans exist in several other cities, including Minneapolis, Miami, and Seattle. Texas Appleseed, a public interest justice center in Austin, Texas, provides school board talking points and sample letters for interested advocates.
Young children come to school excited to learn and to make new friends. They are endlessly curious and just beginning to learn about healthy physical boundaries and appropriate interactions. Many of the stories that make headlines about children who are suspended for "sexual harassment" can be chalked up to hysterical overcorrection and/or misunderstanding of federal guidelines by otherwise well-intentioned school officials. But, there are, to be sure, sometimes situations that are serious and troubling--it bears repeating that the student harasser in the seminal Davis case went on to plead guilty to sexual battery. The problem with zero tolerance policies is that they do not allow responsible school officials to use their years of experience, expertise, and common sense when responding. School officials need to be able separate out what is harmless and age-appropriate from what is a red flag and an indication that a child needs help (since a demonstration of an above-age-level understanding of sex may be a red flag that the child himself or herself is being abused).
The Trump administration has identified Title IX as one of the areas it wants to focus on, and the guidance from OCR is evolving rapidly. In light of the serious and lasting repercussions a child who has been removed from school and labeled a "sexual harasser" can face, it is beyond time to act to loosen the stranglehold that zero tolerance policies have on our youngest students.