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.
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.
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.”
- 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.”
- 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.