High School Liability in Title IX Cases

Title IX is that part of the federal Education Amendments of 1972 that prohibits educational programs from engaging in sex discrimination. Title IX applies not just to colleges and universities but also to primary and secondary schools, including high schools. And Title IX does more than require high schools to grant equal rights to education to both boys and girls. Title IX also requires high schools to prohibit sexual assault, dating violence, stalking, and sexual harassment, including sex-based hazing and bullying. High schools that ignore their Title IX obligations can face liability into the hundreds of thousands of dollars or more. Title IX liability makes some high schools over-enforce alleged Title IX violations.

You and your high school student, though, are not without help if your student faces false, unfair, or exaggerated Title IX charges. Academic Title IX defense attorney Joseph D. Lento and the expert team at the Lento Law Firm have helped hundreds of high school, college, and university students nationwide defend and defeat Title IX charges. Don't let your high school student suffer Title IX penalties that could affect your student's future, simply because the high school is scared of ruinous liability. Get the expert attorney representation you need. Retain Title IX defense attorney Joseph Lento. Call 888.535.3686 or contact online now.

High School Title IX Policies

High schools across the nation, and the school districts that support them, adopt Title IX policies to meet their Title IX requirements. High schools must do so at the risk of losing their substantial federal funding. High schools that don't adopt Title IX policies may face Department of Justice enforcement actions in the nation's federal courts, resulting in court orders to take appropriate remedial action. Title IX policies are, in other words, serious business. High schools and their governing school districts take seriously their obligations to adopt, update, publish, and otherwise maintain their Title IX policies.

High School Title IX Enforcement

High schools, though, must do more than simply adopt fitting Title IX policies. High schools must also implement those policies. A high school that fails to implement its Title IX policy may face investigation by the Department of Education's Office of Civil Rights. Consider, for example, this 2019 Office of Civil Rights Title IX enforcement letter issued to the Chicago Public Schools for its failure to enforce its Title IX policy. That letter documents the Chicago Public Schools' failure to promptly address student complaints of sexual harassment by other students and a teacher. The letter also documents the Chicago Public Schools' failure to designate a Title IX coordinator and maintain and publicize to students and parents an appropriate Title IX grievance procedure. The letter further documents the many steps that the Office of Civil Rights required the Chicago Public Schools to take to correct its omissions. High schools know that the federal government will enforce their Title IX obligations if they ignore them.

High School Liability for Title IX Violations

Federal regulatory action is not the only risk that a high school faces when it ignores its Title IX obligations. High schools that violate Title IX may also face civil liability to students adversely affected by those violations. High schools may have to pay money, into the hundreds of thousands of dollars or more, to victim students of Title IX sexual assault or harassment. And that liability may arise whether the perpetrators of the Title IX sexual misconduct were teachers, administrators, or other students. The liability that high schools may have for Title IX sexual misconduct that others, like misbehaving students, commit is what the law calls vicarious liability. But whether direct or vicarious, the liability that high schools can bear under Title IX can mean paying real money to student victims.

Title IX's Liability Standard

Lots of sexual conduct can go on in a high school, more than most parents or school administrators would prefer to admit. High school students are often curious about sex. They also spend a lot of time in high school. Some of that time is free time. And high schools have relatively private places like bathrooms, locker rooms, offices, and storage facilities, where curious students might explore sexual activity, whether sexual talk, kissing, fondling, or more serious activities. High schools and their officials would not ordinarily be liable for private consensual student conduct about which school officials are not aware. They would not even ordinarily be liable for a non-consensual act that they had no reason to expect and no reasonable means to prevent. Simply because a student suffers a rude sexual touching or even an awful sexual assault at high school doesn't mean that Title IX requires the school to pay for it.

Instead, the 1999 Supreme Court case of Davis v. Monroe County Board of Education established a deliberate indifference standard for a high school's Title IX liability. Under that standard, school officials must know of Title IX sexual misconduct but exhibit deliberate indifference toward stopping it and preventing its continuing occurrence. Deliberate indifference in effect means turning a blind eye toward what the official knows is happening, proving that the official had no concern for the ongoing and resulting injury.

The deliberate indifference standard is a high bar for high school liability. Few high school officials with the power to prevent Title IX sexual misconduct deliberately decline to do so. Yet those cases exist. The Supreme Court's Davis case is an example in which the defendant school officials ignored the complaints of a fifth-grade girl and her mother that other students were sexually harassing her in school. The Supreme Court held the school officials liable to the girl for her damages from the continuing harassment after the officials knew about it but ignored it.

High School Responses to Liability Risks

No high school official should want to exhibit deliberate indifference toward sexual misconduct that is harming students. Yet before the Davis decision, many high schools may have been turning the proverbial blind eye toward sexual conduct among students. The Davis decision raised the stakes for those high schools. High school officials today generally exhibit great concern for Title IX liability, if not always for sexual misconduct that harms students. No high school official wants to pay money in damages to students. If morality and general care for the welfare of students didn't motivate some high school administrators to end Title IX sexual misconduct, then Title IX liability has produced that motivation.

In short, high schools nationwide respond to Title IX liability risks by aggressively enforcing, and at times over-enforcing, their real and perceived Title IX obligations. High schools not only promulgate Title IX policies but expand those policies to include all kinds of sexual conduct that Title IX law does not necessarily prohibit. The student-on-student harassment policy of the New York City schools is an example, prohibiting the following behaviors among several other forms of sexual misconduct within and outside of Title IX:

  • Pressure or requests for sexual activity or favors
  • Engaging in sexually violent or coercive behavior or forcing a person to perform a sexual act
  • Engaging in physical conduct of a sexual nature such as touching an individual's body or clothes, patting, kissing, pinching, grabbing, or brushing up against another person
  • Making sexual comments, innuendoes, remarks, insults, threats, teasing or jokes or asking unwelcome questions of a sexual nature
  • Making graphic, verbal, or written comments about an individual's body
  • Making obscene gestures
  • Stalking another person, including through the use of technology
  • Leering, sexual flirtations, or propositions
  • Spreading lies or rumors of a sexual nature
  • Recording, posting, displaying, or distributing, without permission, sexually-oriented or suggestive images, videos, audio recordings, pictures, or drawings
  • Threatening or engaging in physical, sexual, verbal, or emotional abuse to harm, intimidate or control a current or former or potential dating partner

The Challenge of a High School Title IX Charge

You face a significant challenge if your student's high school has charged your student with a Title IX violation. High school Title IX officials may have little experience with Title IX law and regulation, especially those Title IX regulations that protect your student from false, unfair, or exaggerated charges. High school officials may ignore those protections. High school officials may also act as if the Title IX charges are the same thing as a conviction, trying to get your student to admit to sexual misconduct that your student did not commit. High school officials may even say that their hands are tied because of the liability they believe they would face if they didn't charge and discipline someone.

You may also face discouragement from high school officials that you even consider retaining a Title IX defense attorney. Their resistance is understandable but wrong. They probably believe that if you and your student retain a Title IX attorney to demand that the school provide lawful procedures intended to protect the accused student, the school may have to devote more time and attention to the matter than it otherwise would have. Once again, these assumptions are often wrong. Your Title IX defense attorney may help you, your student, and the school resolve the matter more efficiently and fairly than ever, preserving your student's reputation and opportunities. But the challenge of a Title IX proceeding is that the high school disciplinary officials don't necessarily know and respect the lawful procedures or opportunities for an appropriate compromise resolution.

Title IX Protections for High School Students

Successfully challenging false, unfair, or exaggerated Title IX charges is easier today than formerly, provided you have retained skilled Title IX defense attorney representation. New Title IX rules adopted in 2020 provide greater protections for accused students than prior Title IX regulations. Title IX respondents generally have greater rights and protections than respondents in other regulatory proceedings, short of the rights of a criminal defendant. The rules require the high school to rely for a finding of a Title IX violation only on witnesses who appear in person to testify at the hearing under cross-examination. Formerly, school officials could use written hearsay statements from absent witnesses.

The current Title IX rules also require the school to permit the accused student's retained Title IX defense attorney to cross-examine witnesses. The school must permit the student and defense attorney to examine the school's evidence before the hearing to better prepare for hearing and cross-examination. And the school must provide for an appeal to another decision-maker of any adverse decision against the accused student. These are just a few of the accused student's Title IX rights that can protect against a high school railroading the student into a finding of misconduct simply to avoid perceived liability risks.

Premier Title IX Defense Attorney Representation

Title IX liability increases the pressure on high schools to aggressively enforce their Title IX policies. But aggressive enforcement shouldn't turn into unfair, predetermined procedures that find Title IX misconduct where none exists. If your student faces high school Title IX charges, then appreciate the risks that the high school will find misconduct simply to avoid liability. Don't let your student suffer the consequences of the high school's unreasonable fears of having to pay damages.

Instead, you can meet and defeat the special challenges of a high school Title IX proceeding with the right academic Title IX defense attorney. National Title IX defense attorney Joseph D. Lento and the expert team at the Lento Law Firm have helped hundreds of high school and other students nationwide defeat and overcome Title IX charges. Title IX penalties can tarnish and spoil a student's reputation, closing doors to college, jobs, careers, and other opportunities that your student should have the privilege to pursue. The high school's unreasonable fear of civil liability should not cost your student appropriate dreams and ambitions. Get the help your student needs. Retain Title IX defense attorney Joseph Lento. Call 888.535.3686 or contact online now.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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