By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting
On June 23, 2022, the Department of Education’s Office for Civil Rights (OCR) issued a resolution letter (“Letter”) to Tamalpais Union School District (“the District”) upon completion of its investigation into a Title IX complaint against the school district. The complaint alleged that the District failed to respond in a prompt and equitable manner to notice of peer harassment on the basis of sex. After investigating the complaint, OCR concluded that the District had failed to fulfill its Title IX obligations.
SUMMARY OF THE FACTS
The student who filed the OCR complaint (“Student”) is a transgender girl who was enrolled in the District during the 2017-2018 school year. At some point in 2017, “the [g]uidance [c]ounselor sent an email to the Student’s teachers informing them of [her] preferred female name and that she had ’come out in her classes’ at the school the previous spring.”[1]
A male student (“Student 2”) was in one of Student’s courses during the 2017-2018 school year. According to Student, Student 2 harassed her throughout the school year because Student is transgender.[2] Student’s mother exchanged emails with the guidance counselor regarding the harassment. Although the guidance counselor reported being uncertain whether the harassment was on the basis of sex or gender, the guidance counselor nonetheless sent the information to an assistant principal.[3]
In 2018, Student and Student 2 engaged in a verbal interaction in class, resulting in an incident (“the incident”).[4] Student told OCR the incident occurred because Student 2 mocked her voice and had been harassing her over the course of the school year. The teacher intervened, separating the students, and then emailed the assistant principal. The teacher informed the assistant principal that Student had identified Student 2’s ongoing bullying as the cause of the incident. The teacher also emailed the guidance counselor, and the guidance counselor reported the incident as a possible Title IX incident to school administration.
The assistant principal investigated the incident. Student shared details about the ongoing harassment, but the assistant principal only asked Student 2 about the details of the incident, without inquiring about Student’s allegations of ongoing harassment. Witnesses to the incident also supported Student’s claims of ongoing harassment, as well as information about the incident.
During the investigation into the incident, the assistant principal communicated with the mothers of both Student and Student 2. Student’s mother sent an email stating that Student is not one to complain, but Student 2 had been bullying Student about being transgender since the beginning of the school year. OCR found no evidence that the assistant principal responded to the bullying concerns in any reply to Student’s mother. However, the assistant principal, communicated that the school would create a safety plan to protect Student 2 to Student 2’s mother. The District disciplined Student for the incident, suspending her for one day. Student 2 faced no disciplinary action for his role in the incident because Student 2 “would not admit to engaging in any harassing behavior and the District alleged no witnesses were found to corroborate [Student’s] version of events.” The District reached its conclusion despite the availability of witness statements corroborating Student’s version of events. The District later told OCR that it was “more probable that generally some comment had been made.”[5]
Although the assistant principal informed Student 2’s parents that she planned to investigate the allegations of ongoing harassment, the District provided no evidence that such an investigation took place. Student reported continuing harassment from Student 2 after Student served her one-day suspension. Student’s mother emailed the assistant principal and the guidance counselor about the ongoing taunting and harassment, but the school took no additional responsive actions. Despite Student’s grades declining throughout the school year and not feeling safe at school due to continued harassment, Student graduated from the District prior to the Letter being issued.
OCR FINDINGS
OCR determined the following:
- The District failed to investigate the allegations of ongoing sex-based harassment after receiving notice on four separate occasions. The District provided no evidence that it had investigated such claims or interviewed Student or Student 2 about the harassment claims.
- The District failed to respond promptly and effectively to the harassment reports. The District claimed it initiated an investigation, but the assistant principal could not confirm that she spoke to Student or Student 2. The District did not provide any documentary evidence of an investigation.
- The District did not conduct an adequate or equitable investigation into whether Student 2 had engaged in sex-based harassment immediately prior to the incident.
RESOLUTION AGREEMENT
The Resolution Agreement outlined the following provisions and District action items:
- Review and revise its sex-based harassment policies and grievance procedures, including clarifying that sex-based harassment includes harassment based on sex stereotyping.
- Develop and submit to OCR a guidance memorandum for all District employees and contractors who respond to sex-based harassment. The guidance memorandum must include the District’s policies, a summary of grievance procedures, reporting requirements, and recordkeeping practices, among other topics. The District must also provide training to employees and contractors about the memorandum topics.
- Update procedures so the Title IX Coordinator will review all complaints of sex-based harassment within 30 days of receipt and again within 30 days of resolution. The District must provide OCR with information of all written and oral complaints of sex-based harassment received in the 2021-2022 and 2022-2023 school years.
- Offer to reimburse Student and her parents up to $5,000 for past counseling and therapy costs.
KEY TAKEAWAYS
- School districts have a responsibility to investigate when a student or parent/guardian reports sex-based harassment, including harassment based on gender identity. Here, OCR did not uncover evidence of any investigation. The school employees’ selective memories regarding their conversations or emails with Student and Student’s mother were not enough to avoid violating Title IX. The full contents of the Letter detail several inconsistent and contradictory statements by school employees. School districts have a responsibility to respond to allegations of sex-based harassment promptly and effectively, and efforts to mischaracterize the content of reports to avoid Title IX liability will not fly under this OCR administration.
- Look at the bigger picture. What a person reports may only the tip of an iceberg, and while schools are accustomed to addressing incidents, Title IX often requires a broader exploration of root causes and the potential for systemic discrimination, as here.
- OCR interprets gender identity and sex stereotypes to fall within the scope of Title IX. Although case law around this issue is unsettled, given the recent injunction in Tennessee, gender identity and sex stereotypes appear in the ED’s Title IX Notice of Proposed Rulemaking (NPRM), forecasting future inclusion in the final Title IX regulations. School districts should take note of OCR’s direction on this issue, as evident in the NPRM and this resolution letter.
- OCR’s resolution agreements result in increased administrative burdens for school districts. Given the limited resources facing school districts throughout the country, additional regulatory compliance requirements are a burden. As a result of the District’s failure to adhere to its Title IX obligations, the District must now meet significant reporting requirements. The amount of time it will take to meet those new OCR reporting requirements likely far exceeds the resources and time it would have taken to properly respond to Student’s allegations in the first place – not to mention all the time and resources the District spent responding to and participating in the OCR investigation.
- OCR may require financial restitution for violations of Title IX.
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[1] Resolution Letter, p. 3.
[2] The Letter includes several redactions to protect the identity of the individuals involved. Some facts, including specific instances of Student 2’s alleged harassment, are not available in the Letter.
[3] The guidance counselor’s email was one of four instances of notice of harassment OCR identified. The other instances are not included in this summary for brevity purposes but included a written statement by Student and emails from Student’s mother.
[4] The Letter redacted a description of the incident.
[5] Resolution Letter, p. 7.