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April 01, 2018 Children

Objectively Offensive: The Problem of Applying Title IX to Very Young Students

By: Amy B. Cyphert

I. Introduction

In December of 2011, Levina Subrata received a paper informing her that her son had "[c]ommitted or attempted to commit a sexual assault or sexual battery." Although any mother would be distraught to receive such devastating news, Ms. Subrata was utterly stunned--her son was only  six years old at the time. His offense? During a recess game of tag with   a classmate at his elementary school in a San Francisco suburb, he had allegedly touched the upper thigh and/or groin of the other boy. Despite the absence of witnesses, and indeed even the absence of a complaint from the other child, Ms. Subrata's son was suspended and his principal placed an official notation in his school record that he had been involved in a case of "sexual assault." Only after Ms. Subrata hired a lawyer and threatened legal action did the school assure her that her son's record had been cleared.

Ms. Subrata's story, although perhaps shocking, is hardly an outlier. Across the country, very young students--some as young as four years old--have been swept up in a net of well-intentioned, but improperly- applied, zero tolerance policies involving peer-on-peer sexual harassment. These policies are all too often vague and overly broad, and sometimes even "identify consequences for sexual harassing behaviors without defining" those same behaviors. Many policies require that students are to be disciplined for behavior such as "unwanted attention" or "inappropriate touching" regardless of the student's age or the context surrounding the behavior (such as inadvertent touching during a game).

A four-year-old in Waco, Texas was given an in-school suspension for hugging a teacher's aide as he boarded a bus; she alleged that he "put his face in her chest." That four-year-old was not quite as "fortunate" as Ms. Subrata's six-year-old son when it came to having his record cleared; the school officials in charge of his case ultimately agreed to remove sexual references from his school record but refused to expunge the "inappropriate physical contact" charge. He was, however, more fortunate than the Maryland kindergarten student who was accused of sexual harassment for "pinch[ing] a classmate's bottom," as that charge "will remain on his record until he enters middle school."

The list goes on and on. A month before Ms. Subrata's son was suspended, a seven-year-old in Boston faced sexual harassment charges for kicking another boy his age in the groin during a fight. That same month, a nine-year-old in North Carolina was suspended after he was overheard telling another student in his class that a teacher was "cute," which his school district said constituted "inappropriate behavior" and "inappropriate statements." The following year, a six-year-old boy in Colorado was suspended from his suburban Denver school for three days after he repeated then-popular song lyrics to a classmate: "I'm sexy and  I know it" (a song that, at the time, was so prevalent it had been sang at halftime of the Super Bowl and featured on Sesame Street with the lyrics changed to "I'm Elmo and I know it"). "They're going to look at him like he's a pervert," the boy's mother lamented to a reporter. She and her husband were so worried that their son was "tainted in teachers' eyes" that they considered transferring him.

What is the driving force behind these suspensions? Many school districts claim that their hands are tied and that they have adopted zero tolerance policies for sexual harassment as a result of federal or state laws. The most important of these is the federal Title IX statute, which was designed to remedy gender discrimination from any school that receives federal funding. As is discussed in Part II below, Title IX has evolved over the past fifty years and now focuses heavily on sexual harassment, including in our nation's elementary schools. A related driving force behind the suspensions of very young children for alleged sexual harassment is school districts' fear of litigation, both from the federal agency in charge of enforcing Title IX but also from parents of students. As is discussed in Part III, federal courts have generally been hesitant to find school districts liable for peer-on-peer sexual harassment under Title IX. Nonetheless, Part IV makes clear that school districts remain unsure about how to comply with their Title IX obligations and tend to overcorrect with their discipline, even when very young elementary school students are involved. "Schools have become so concerned with the possibility of liability that they've failed to consider whether it's developmentally appropriate to accuse 4 and 5 year-olds of sexual crimes."

The stakes involved are large and not merely academic. Overreacting to young children's relatively normal behavior, especially when that behavior is deemed "sexual" by adults, can create lifelong damage for children. "When schools punish children for exhibiting age appropriate sexual behavior, they may be doing more harm than good." Disciplining very young children with suspension or expulsion for normal childhood curiosity is especially damaging in light of recent research confirming that the school-to-prison pipeline begins in preschool and disparately impacts boys and children of color. According to the Departments of Education and Health and Human Services, "there is evidence that expulsion or suspension early in a child's education is associated with expulsion or suspension in later school grades," and "these later suspensions and expulsions might make a student up to 10 times more likely to face incarceration." Given the high stakes, this Article concludes in Part V with recommendations for how attorneys might best advocate for very young clients who are facing discipline under Title IX. Although the path forward might not necessarily be through the court system, there are other ways that attorneys can help create change.

II. The Evolution of Title IX and Peer-on-Peer Sexual Harassment

The Higher Education Act, passed by Congress in 1965, was enacted "to strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education." That Act was amended by the Education Amendments of 1972, and Title IX of those amendments provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation  in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance." The requirement that schools "receiv[e] federal financial assistance" means that Title IX applies to all public schools, as well as to any private school that receives government funding. The statute has evolved in critical ways since its passage, especially with respect to school district liability for peer- on-peer sexual harassment. This evolution has happened both in the courts and also through agency guidance issued by the Department of Education.

A. Evolution in Courts Pre-Davis

In the years after its passage, Title IX was primarily known for its focus on ending gender discrimination in admissions and athletics, and it was not initially clear whether sexual harassment claims could be brought under the statute or even if there was a private right of action under it at all (as opposed to mere enforcement by a federal agency or department). In 1979, the Supreme Court confirmed that there was a private right of action implied by Title IX, holding that the Act had been created, in part, because Congress "wanted to provide individual citizens effective protection against . . . [discriminatory] practices." In 1980, the Second Circuit became the first court to hold that sexual harassment did indeed constitute actionable discrimination under Title IX.

In 1992, in Franklin v. Gwinnett County Public Schools, the Title IX terrain shifted once more when the Supreme Court held that monetary damages could be awarded in Title IX cases. The Franklin case imported certain employment law theories into Title IX jurisprudence, holding  that because the school officials in that case had been aware (or had "had notice") that a coach was sexually harassing a high school student and had done nothing about it, the student could recover monetary damages from the school. In 1998, in Gebser v. Lago Vista Independent School District, the Court refined the "actual notice" requirement for school district liability under Title IX, holding that damages could only be recovered by students who were sexually harassed by teachers where "an official of the school district who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct." As a result of these Supreme Court decisions clarifying that a private right of action exists under Title IX and that plaintiffs can obtain monetary damages under it, "private litigation has flourished and has become an important Title IX enforcement tool."

B. The Davis Decision

Each of the cases outlined above involved students who were sexually harassed by teachers or other school officials. The general consensus among courts in the first decades of Title IX's existence was that there was no private right of action for peer-on-peer sexual harassment under the Act, though there was a circuit split on the issue. In 1999, the Supreme Court resolved that circuit split in Davis v. Monroe County Board of Education. Davis was a Title IX case brought by a fifth-grade student against her school board and school officials, alleging that another student in her class had sexually harassed her. Specifically, the suit alleged that the classmate touched the girl's breasts and genital area and made vulgar statements. The classmate ultimately pled guilty to sexual battery for the misconduct. The district court had dismissed the claims and the Eleventh Circuit had affirmed that ruling, both holding that "'student-on-student,' or peer, harassment provides no ground for a private cause of action under. . . [Title IX]."

The Supreme Court, in an opinion authored by Justice O'Connor, disagreed. It laid out two conditions under which a student could recover damages from a school district when he or she had been sexually harassed by another student: (1) where the school "act[ed] with deliberate indifference to known acts of harassment in its programs or activities," and (2) where the harassment at issue was "so severe, pervasive, and objectively offensive that it effectively bar[red] the victim's access to an educational opportunity or benefit." Although the Court confirmed that "a recipient of federal funds may be liable in damages under Title IX only for its own misconduct," it concluded that schools could nonetheless be liable for peer-on-peer harassment because the operative "misconduct" was not  the underlying harassment itself but rather the deliberate indifference the school showed to that harassment. So long as a school is "deliberately indifferent to known acts of student-on-student sexual harassment" and the harasser is "under the school's disciplinary authority" (which the Court defined as attaching to harassment that occurred "during school hours and on school grounds"), the school could be liable under Title IX.

The Davis Court further defined the level of severity the harassment must meet before liability would attach, holding that the misconduct must be "so severe, pervasive, and objectively offensive, and . . . so undermin[ing] and detract[ing] from the victims' educational experience, that the victim- students are effectively denied equal access to an institution's resources and opportunities." The Court also directed that the age of the students is one of the "constellation of surrounding circumstances, expectations, and relationships" that a judge should take into account when determining whether the harassment was severe enough to merit liability under Title IX. O'Connor's  opinion also seemed  to recognize inherent differences between adults and children with respect to behaviors that could constitute sexual harassment, holding that courts "must bear in mind that schools are unlike the adult workplace and that children may regularly interact   in a manner that would be unacceptable among adults." As O'Connor clarified in the opinion:

[i]ndeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing,   and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.<\/blockquote>

The Court underscored that its long-standing admonition that judges avoid second-guessing school disciplinary decisions remained intact after its decision in Davis. The Court remarked that "[s]chool administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed 'deliberately indifferent' to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances."

In dissent, Justice Kennedy, joined by Justices Rehnquist, Scalia, and Thomas, disagreed, claiming that the majority's holding "invites courts and juries to second-guess school administrators in every case, to judge in each instance whether the school's response was 'clearly unreasonable.'" The dissent accused the majority of imposing on schools "liability that was unexpected and unknown . . . the contours of which are, as yet, unknowable." The dissent warned that school districts, "desperate to avoid Title IX peer harassment suits, will adopt whatever federal code of student conduct and discipline the Department of Education sees fit to impose upon them."

Justice Kennedy was alarmed at the way the majority purported to apply the same standard to young elementary school students that it applied to university students, arguing that it failed to "grapple in any meaningful way" with the distinctions between the two. He noted:

The law recognizes that children--particularly young children--are not fully accountable for their actions because they lack the capacity to exercise mature judgment. . . . It should surprise no one, then, that the schools that are the primary locus of most children's social development are rife with inappropriate behavior by children who are just learning to interact with their peers.<\/blockquote>

Justice Kennedy acknowledged that the behavior of young children can frequently be inappropriate and offensive, but he maintained that "[i]t is a far different question . . . whether it is either proper or useful to label this immature, childish behavior gender discrimination. . . . The majority, nevertheless, has no problem labeling the conduct of fifth graders 'sexual harassment' and 'gender discrimination.'"

Kennedy also criticized the majority for not  providing  enough  clarity regarding what would constitute sexual harassment, calling the "multifactored balancing test" put forward by the majority a "mishmash of factors" and concluding that the guidance provided is "in reality,   no guidance at all." The dissent pointed to school manuals as evidence of the difficulty that elementary schools in particular already had with identifying when behavior rose to the level of "sexual harassment." The dissent predicted that the ultimate impact of the Davis decision would   be an inevitable overcorrection by school administrators desperate to avoid lawsuits. "The prospect of unlimited Title IX liability will, in all likelihood, breed a climate of fear that encourages school administrators to label even the most innocuous of childish conduct sexual harassment." The dissent also noted that schools "may well be beset with litigation from every side," as the student who claims that the school was indifferent to sexual harassment may sue at the same time that the alleged harasser may sue raising due process concerns regarding his or her punishment. Kennedy concluded that the suits that would follow this opinion "will impose serious financial burdens on local school districts, the taxpayers who support them, and the children they serve."

C. Evolution Through DOE OCR Guidance

Before examining whether Kennedy's prediction of a coming avalanche of litigation under Davis and overcorrection in school policies did, in fact, occur, we must pause to first understand how agency interpretations of Title IX changed in the years following Davis. The evolution of the contours of Title IX has occurred not only in the courts but through agency decisions as well. "Congress authorized an administrative enforcement scheme for Title IX" that included "departments or agencies with the authority to provide financial assistance [which were] entrusted to promulgate rules, regulations, and orders to enforce the objectives of [Title IX.]."

Enforcement of Title IX has been delegated by Congress to the Department of Education's Office for Civil Rights (OCR). OCR, which can investigate alleged Title IX violations of its own volition, provides written guidance for schools regarding how to comply with Title IX. This guidance is also relevant to courts considering private Title IX claims as well. The Davis Court looked to OCR's promulgation of Title IX guidelines when determining the scope of liability for peer-on-peer harassment. Although OCR guidance is not binding on federal courts, it nonetheless "constitutes a body of informed judgment from the federal agency charged with administering Title IX's policies."

  1. OCR Sexual Harassment Guidance

    As the Davis opinion noted, the OCR promulgated guidance that defined peer-on-peer harassment as sex discrimination for Title IX purposes two years before that decision. In its 1997 Sexual Harassment Guidance, OCR mandated that schools were required by Title IX to "have grievance procedures through which students can complain of alleged sex discrimination, including sexual harassment." This Guidance included an official definition of "[s]exually harassing conduct" ("unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature by . . . another student . . . that      is sufficiently severe, persistent, or pervasive to limit a student's ability  to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment"). This definition was "based closely on the Equal Employment Opportunity Commission (EEOC) definition of sexual harassment that had been developed for the workplace," and has been criticized as "not adapted to be age appropriate for the school setting." That Guidance further provided that schools failing to respond to a hostile environment permit "an atmosphere of sexual discrimination to permeate the educational program . . . [that] results in discrimination prohibited by Title IX."

    OCR revised this Guidance in 2001, updating it in light of the Supreme Court decisions in Gebser v. Lago Vista Independent School District and Davis. In the Revised Sexual Harassment Guidance, OCR reiterated that "[o]ne of the fundamental aims of both the 1997 guidance and the revised guidance has been to emphasize that, in addressing allegations of sexual harassment, the good judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX." The Revised Sexual Harassment Guidance urged school officials to not "overreact to behavior that does not rise to the level of sexual harassment," pointing out, for example, that a kiss on the cheek from a first grader is not sexual harassment. The guidance also encouraged school officials to "consider the age and maturity of students in responding to allegations of sexual harassment." The Revised Guidance specifically noted that younger students may pose special  challenges with respect to identifying behavior as "sexual harassment." "If younger children are involved, it may be necessary to determine the degree to which they are able to recognize that certain sexual conduct is conduct to which they can or should reasonably object and the degree to which they can articulate an objection."
  2. OCR "Dear Colleague" Letters

    In addition to the formal guidance OCR has promulgated, it has also issueda series of"Dear Colleague Letters" with respect to Title IX.Although these Dear Colleague Letters, which were issued without any notice and comment processes, are "nonbinding document[s] that cannot impose any new legal obligation," they nonetheless contain "interpretations that do not appear elsewhere in federal law, and, in enforcement investigations and proceedings, OCR has expressly relied on the [Dear Colleague Letters]." The Dear Colleague Letter issued by the Obama Administration on April 4, 2011, defined sexual harassment somewhat broadly as "unwelcome conduct of a sexual nature" that "includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature." The 2011 Dear Colleague Letter provided guidance on the steps a school should take in investigating an allegation under Title IX, and it noted that "[t]he specific steps in a school's investigation will vary depending upon the nature of the allegations, the age of the student or students involved (particularly in elementary and secondary schools), the size and administrative structure of the school, and other factors." A Dear Colleague Letter issued on April 24, 2013, reminded schools that it is unlawful for them to retaliate against any student who brings a sexual harassment claim under Title IX.

    The 2011 Dear Colleague Letter was heralded by some, largely because there was a sense that it was a sign that universities would finally begin to take seriously the problem of sexual assault on college campuses. But it was controversial from the beginning and was attacked on a variety of fronts, including allegations that it provided a lack of due process to the accused and that it unfairly infringed students' free speech rights. In September of 2017, in her first year of service as the Secretary of Education, Betsy DeVos rescinded the 2011 Dear Colleague Letter, concluding that it represented a "failed system." Secretary DeVos announced that the Department would engage in a formal notice-and-comment process to replace the earlier Obama-era Guidance, and the OCR issued an interim guidance in the meanwhile. The Interim Guidance removes certain requirements the 2011 Dear Colleague Letter placed on schools, such as the requirement to use a "preponderance of evidence" standard in disciplinary hearings, but it did not speak to the impact of Title IX enforcement on elementary school-aged children.
  3. <\/ol>


III. Lower Courts Largely Reject Liability for School Districts

Lower courts have been left to try to reconcile the Supreme Court precedent in Gebser and Davis with the evolving guidance from the OCR. As a general rule, the parade of horribles imagined by Justice Kennedy  in his Davis dissent--that schools would be crushed by litigation costs imposed by district and appellate courts--has largely not come to pass. Indeed, most federal courts have been hesitant to assign liability in cases where students sue school districts for peer-on-peer sexual harassment under Title IX and have expressed skepticism about labelling especially young children as sexual harassers.

A. Federal Appellate Courts

In a case where the Seventh Circuit was asked to weigh whether a school district had been deliberately indifferent to the alleged sexual harassment of one five-year-old kindergarten student by another five-year-old classmate, it noted that "[t]here is a threshold question, altogether reasonable and rational, of whether a five or six year old kindergartner can ever engage in conduct constituting 'sexual harassment' or 'gender discrimination' under Title IX. Common sense, at least, would reject any such extension of Title IX." In Gabrielle M. v. Park Forest-Chicago Heights, Illinois School District 163, the plaintiff alleged that her classmate, identified only as "Jason," had engaged in behavior such as jumping on her back, leaning against her with his "hands on his crotch," showing other students his underwear, and kissing and jumping on other students. The school had responded to the behavior with disciplinary measures ranging from visits to the principal's office to isolating Jason from other students in both the classroom and the lunchroom to after school detention and ultimately, to a two-day suspension from kindergarten. Jason was also transferred to a different kindergarten classroom.

The Seventh Circuit sidestepped its own "threshold question" of whether a five-year-old could engage in sexual harassment by assuming arguendo that Jason's conduct had indeed been sexual harassment. The question that was left, then, was whether the harassment had been "so severe, pervasive, and objectively offensive that it effectively bar[red] the victim's access to educational opportunity or benefit." The court held that the plaintiff's allegations were too "vague and unspecific" to satisfy such a test, noting that "[i]n the context of peer harassment between five and six year olds, such allegations are as indicative of nonactionable teasing and name calling as they are of potentially actionable harassment, and thus they provide no support for Gabrielle's claim." The court further noted the children's lack of awareness of the "sexual nature" of their behavior, concluding that "[t]he children, then, were not engaging in knowingly sexual acts, a fact that (at a minimum) detracts from the severity and offensiveness of their actions."

Finally, the court noted that even if it had found that Jason's conduct was severe enough to constitute an actionable claim under Title IX, it would not have found that the school's response to the behavior was clearly unreasonable. "After each reported or observed instance involving Jason and other students, Jason was disciplined and steps were taken to prevent future inappropriate conduct." The court concluded that Davis does not require that schools remedy all peer harassment, and also noted that Davis "disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct." Instead, schools are only required to "not act clearly unreasonably in response to known instances of harassment." The court in Gabrielle M. reiterated that courts are not to second-guess disciplinary decisions made by schools and confirmed that schools could take into account consideration of "administrative burdens or the disruption of other students' or their teachers' schedules in determining an appropriate response" to known incidents of peer-on-peer sexual harassment. The court concluded that "under existing law, [and] taking into account the ages of the children involved, [and] their apparent lack of knowledge of the nature of their actions," there was no liability for the school.

The Seventh Circuit's rationale in Gabrielle M. is similar to that used by the First Circuit ("Title IX does not require educational institutions  to take heroic measures, to perform flawless investigations, to craft perfect solutions, or to adopt strategies advocated by parents. The test is objective--whether the institution's response, evaluated in light of the known circumstances, is so deficient as to be clearly unreasonable,") and the Eleventh Circuit ("[i]n the school setting, students often engage in insults, teasing, shoving, and gender-specific conduct that is upsetting to the student subjected to it. Damages are not available for simple acts of teasing and mere name-calling among school children even where these comments target differences in gender.") Those courts similarly declined to hold school districts liable in Title IX peer-on-peer harassment claims involving elementary school children, even where the allegations involved were more serious than those at issue in Gabrielle M.

B. Federal District Courts

District courts have been similarly unwilling to label young children as sexual harassers under Title IX and have been even more hesitant to say that school districts had clearly unreasonable responses or were deliberately indifferent to the behavior complained of. In Manfredi v. Mount Vernon Board of Education, a district court judge granted summary judgment to the defendant school district on a Title IX claim, holding that "no rational trier of fact could conclude anything except that what took place between two second graders . . . was not 'sexual harassment[.]'" In Manfredi, the plaintiff alleged that Lamar, a second-grade classmate of her daughter Frances, had sexually harassed Frances through behavior including pushing her, teasing her, and "touch[ing] her private spot." The families of the second graders had numerous altercations regarding the alleged behavior, including Frances's mother telling Lamar's parents (in front of Lamar) that "[i]f you don't discipline him, someone else will. The next time he bothers my daughter, I will call the authorities." Frances's uncle also called Lamar out of his second-grade classroom to "confront him and tell him what he did was wrong," an incident that resulted in school officials calling police to the school.

The district court judge cited to Davis in his decision granting summary judgment to the school district, noting that the case "is a classic example of the old law school maxim that 'bad facts make bad law.'" The judge noted that "despite the best efforts of the Supreme Court to restrict its reach, Davis will inevitably be applied to justify lawsuits over far less heinous behavior like this one." The judge noted that both children were seven years old at the time of the behavior complained of and that only one incident--the allegation that Lamar touched Frances's "private spot"-- could "remotely be described as 'sexual.'" The judge acknowledged that a single incident of offensive touching could indeed form the basis of a sexual harassment claim in an adult workplace context. However, citing to Davis, he concluded that it was "unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment." Further, the judge noted that there was no evidence that the behavior complained of had restricted Frances' access to education or that the school district had ignored it.

The judge concluded by citing to Justice Kennedy's dissent in Davis with its "prescient warning" that the decision there would "clear[] the way for the federal government to claim center stage in America's classrooms." The judge noted that Justice Kennedy's "vision was rejected by the majority as unlikely to occur. . . . As it turns out, he was Cassandra."

I am, of course, bound by the Davis Court's majority view that Title IX creates a private right of action against a school board for student peer-to-peer sexual harassment. Fortunately, Justice O'Connor tried to set a high bar for liability, and I am thus able do the right thing and dispose of this case before trial. But the fact that Davis was on the books also ensured that this case, involving an unruly little boy and a sensitive little girl and nothing "sexual"  as adults understand that term would (and did) survive a pre-discovery motion to dismiss. A young girl was subjected to hours of questioning about painful childhood taunts and teasing. And countless hours of school resources (not    to mention taxpayer funds) were expended because the floodgates of federal litigation in the schoolroom and the schoolyard have been opened. Surely, such a use of educational and judicial resources diminishes the real gains in educational opportunities for women and girls that have been brought about as a result of Title IX.<\/blockquote>

The Manfredi Court noted favorably that even if the behavior complained of was in fact sexual harassment, the school district there had not been deliberately indifferent to it. Ajudge in the Eastern District of Pennsylvania similarly held that a school district was not deliberately indifferent to Title IX claims regarding kindergarten boys. In Brooks v. City of Philadelphia, the parents of five-year-old Leonard brought a Title IX claim against his kindergartener's school district. At issue was allegations that Leonard's kindergarten classmate, Tyler, had engaged in various behavior, including touching Leonard's "private area" while in the bathroom, "bump[ing] him on his behind," trying to "hump" Leonard, and showing Leonard his genitals. In response to these incidents, school officials "notified both sets of parents, notified the Department of Human Services, and referred Tyler for counseling at the J. Peterson Institute, which deals with sexual issues." Leonard's parents also contacted the police and took Leonard to the hospital, which found no signs of physical trauma but did note that Leonard seemed emotionally traumatized. Leonard's parents requested that he be transferred, and the principal facilitated this transfer.

The district court analyzed the incidents complained of and declined to find liability against the school district for any of them. For some of the behavior, the court held that it either did not rise to the level of "sexual harassment" under Title IX (such as the incident where the boys "were found together in the bathroom stall and it appeared to be exploration   by six-year-old boys"), and/or that the school's response was not deliberately indifferent. The court specifically noted that the district's prompt agreement to transfer Leonard when his parents requested it negated any claim that it had been "deliberately indifferent." Further, the court rejected the plaintiff's claim that five-year-old Tyler was "a known sex offender" as "completely unfounded."

It bears noting that where federal courts have been reticent to find Title IX liability for peer-on-peer sexual harassment in elementary schools, the Obama-era OCR had been somewhat more willing. In April of 2016, the OCR resolved a complaint that had been made to it regarding the San Diego Unified School District. That complaint was based on a May 3, 2013, incident where the complainant's son, who was an elementary school student (the resolution letter does not provide his age) had "been touched on his private parts by another . . . student . . . while in the boys' restroom." In response, the principal had called Child Protective Services, provided a report to both boys' parents, and asked the teachers to "more closely monitor the students when they were in the restrooms." The students were then separated into different classrooms for the remainder of the school year. The complainant told OCR that there were no other incidents of sexual harassment involving his son and the other student and that "he was seeking no remedies, such as counseling, for his son because he was not acting out, and he did not notice any change in his son's demeanor." Nonetheless, one year later, the complainant did file an internal complaint stating that he was dissatisfied with the principal's response, saying that he believed the other student should have been expelled and the complainant should have been more fully informed of his rights.

The school district responded to the complaint by arguing that the principal was correct to not apply a zero tolerance policy (which provides that students must be suspended or expelled if found responsible for sexual assault) and expel the student because "elementary students do not have the relevant mental state for engaging in sexually harassing behavior." The District also concluded that "a single occurrence of inappropriate physical contact did not raise the possible sexual harassment," and that the age of the students weighed against suspension or expulsion.

During its investigation, OCR explained to the District's general counsel that a "single incident of sexual touching could be severe and constitute sexual harassment." OCR also concluded that in order to "be consistent with the requirements of Title IX," the principal "should have treated the complaint as a complaint of sexual harassment . . . documented his investigation, communicated his findings to the parents and offered   a remedy for the victim." The District entered into an agreement with OCR whereby the District agreed to "develop guidelines to ensure that elementary principals understand the process they must follow responding at the site level to incidents of inappropriate touching and other types of sexual harassment that might occur between elementary-age students" and to train all elementary school principals in the District on Title IX. The agreement provided that, should the District fail to implement it, OCR "may initiate administrative enforcement or judicial proceedings."

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.

VI. Conclusion

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.

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Amy B. Cyphert

Director, West Virginia University ASPIRE Office, and Lecturer in Law, West Virginia University College of Law.