Published on: December 16, 2025
An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
We recently received a question on ATIXA’s Listserv about how to assess severity in a specific Title IX complaint. Below, I’ve shared the example along with a detailed explanation for the benefit of the broader Title IX community.
QUESTION: Does the following behavior qualify as severe under Title IX if it’s entirely verbal or through text messages?
CASE EXAMPLE: One employee told another he was interested in her. She told him she only wanted to be friends. He agreed. Shortly thereafter, he texted her to say he was interested and was confused about whether they could be together. She repeatedly told him she was uninterested. He said that was fine. This pattern continued for maybe 3 or 4 other confessions of love via text message over two weeks. Each time she told him she was uninterested, uncomfortable, and asked him to stop. He then wrote her a song and sent it via text message. The song is romantic in nature but also has some explicit lines about sexual acts he’d like to engage in. She has blocked his number, and nothing else has happened.
Let’s explore how a Title IX professional should assess severity in a situation like this. It’s easy to assume that because the conduct was verbal or written—not physical—it must not meet the severe, pervasive, and objectively offensive (SPOO) threshold under Title IX. But that assumption can lead to early dismissals that overlook important context.
Step 1: Begin with the SPOO Framework
ATIXA recommends evaluating each of the three core elements—severe, pervasive, and objectively offensive—as part of an integrated analysis. These are not stand-alone boxes to be checked; instead, they work together to determine whether the conduct caused a denial of equal educational access under Title IX.
Where the elements of SPOO are colorable (arguable), the complaint should move forward to a Decision-Maker (DM) for full adjudication rather than being dismissed at intake by the Title IX Coordinator (TIXC). In other words, if severity is open to reasonable debate, the complaint proceeds.
This protects both the integrity of the process and the institution, ensuring that dismissals are not based on narrow or premature judgments that usurp the role of the DM.
Step 2: Analyze Severity in Context
In this scenario, the behavior is not physically threatening but is certainly intrusive and sexualized, especially given the explicit content of the song. ATIXA’s position is that severity must be viewed through both a qualitative and contextual lens.
While many non-physical acts won’t be severe, if any verbal or non-physical actions might rise to the level of severity, this pattern is one that could. The content moves beyond mere expressions of affection into sexual propositions after clear rejection. That movement from unwelcome overtures to descriptions of explicit acts can elevate the severity analysis.
Severity is “arguable” here, meaning that reasonable professionals could disagree on whether it alone meets the threshold. But because it’s arguable, that is enough to allow the complaint to proceed to the next phase of the Title IX process. The DM then weighs the full record and determines whether the conduct meets the SPOO standard.
Step 3: Weigh Pervasiveness as a Compounding Factor
While the conduct may not be “highly severe” on its face, its repetition despite multiple clear refusals increases its persistence and, therefore, its overall impact in terms of pervasiveness (where the persistence of repetitive conduct is often a signifier of pervasiveness).
Persistence reflects the respondent’s unwillingness to respect boundaries. Repeated unwelcome conduct can compensate for somewhat lower severity. The Complainant’s repeated objections and the Respondent’s continued advances transform an isolated event into a potential pattern of harassment.
In cases like this, the pervasiveness may tip the totality of circumstances toward a Title IX violation, even if the severity alone might not. The cumulative effect of the behavior matters most.
Step 4: Consider Alternative or Collateral Charges
ATIXA also recommends reviewing whether the same facts might support other policy violations, such as stalking or non-Title IX sexual harassment under institutional conduct codes.
If a power differential exists, such as a supervisory or academic relationship, this may further support additional or separate charges. Even if the Title IX complaint is later dismissed for lack of jurisdiction, these alternative frameworks ensure accountability and support for the complainant.
Step 5: Apply the “Totality” Test
SPOO is not a science; it’s an art. ATIXA encourages practitioners to step back and view the totality of the circumstances. Focusing too rigidly on each SPOO element can lead to a risk of seeing trees rather than the forest.
It’s reasonable to view severity and pervasiveness as having an inverse reciprocal relationship: the more severe the conduct, the less persistent it needs to be, and vice versa. Pervasiveness can never be zero and still equate to a violation of policy, but its weight shifts relative to severity.
To visualize this concept, imagine a Newton’s cradle, the pendulum with silver balls that transfer momentum back and forth. The two balls on one side represent severity, and the two on the other side represent pervasiveness. The ball in the middle can swing either way depending on the force behind it. High severity pushes the balance one way; high pervasiveness pushes it the other.
Ultimately, what counts is whether the totality of the conduct would cause a reasonable person in the complainant’s position to experience a denial of equal access. That is the heart of a Title IX analysis.
Step 6: Train Teams to Recognize Nuance
ATIXA recommends deliberate training for Coordinators, Investigators, and Decision-Makers to develop their ability to interpret SPOO in this flexible, contextual manner. Practitioners should be able to articulate not only what elements they found met the standard, but also why, in light of the relationship among severity, pervasiveness, and offensiveness.
Key Takeaways
- Don’t dismiss too early: If the SPOO elements are reasonably arguable, the complaint should proceed to the DM stage.
- Severity isn’t just physical: Explicit verbal or written sexual content, especially after rejection, can be severe.
- Look at the totality: The art of SPOO requires holistic judgment, not mechanical analysis.
- Train for nuance: DMs must be equipped to weigh context and apply a reasoned, evidence-based approach.
A well-trained team understands that SPOO determinations rarely turn on a single factor. They require judgment, context, and the ability to see the whole picture.
Train with ATIXA’s experts in 2026. Explore ATIXA’s Virtual Focus Weeks or visit the Schedule at a Glance to see what’s coming. Prefer a tailored approach? Explore Custom Training Solutions.