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Jacquelyn Martin, Associated Press
Education Secretary Betsy DeVos listens during her introduction to speak about campus sexual assault and enforcement of Title IX, the federal law that bars discrimination in education on the basis of gender, Thursday, Sept. 7, 2017, at George Mason University in Arlington, Va.

SALT LAKE CITY — When you think of Title IX — the federal law that seeks to protect students from sex-based discrimination and harassment — you probably think of college campuses.

But exposure to discriminatory behaviors can start long before a kid takes off their high-school graduation cap and heads to college.

  • When a 14-year-old girl in Alabama told school administrators a boy had sexually assaulted her, they suggested they “catch him in the act” with her as bait. But the teachers didn’t show up in time to keep the boy from raping her, according to The Guardian.
  • A sixth-grader in Hawaii told her counselor that a boy had repeatedly grabbed her and smacked her butt. The counselor responded, “What would you like me to do? I’m not his counselor,” according to an investigation by the Office of Civil Rights.
  • Adaku Onyeka-Crawford, an attorney for the National Women's Law Center, told the Deseret News she had a young female client who reported to her school that her rapist's friends were harassing her in the hallways. The school told her to go somewhere else if she couldn’t handle it.

Stories like these illustrate where Title IX applies not in just higher education, but K-12 schools as well. The law requires all schools that receive federal funding, including public elementary and high schools, to maintain learning environments free from sex discrimination.

While colleges have made strides in adopting detailed procedures for handling Title IX issues in the last decade, K-12 schools have lagged behind. But the attention given to colleges is trickling down, according to Adele Kimmel, a senior attorney at Public Justice, a nonprofit legal organization. Kimmel has worked on Title IX cases since the 1990s and has seen firsthand how each change in policy has affected the way schools address discrimination.

Heather Tuttle

Originally, the Title IX complaints Kimmel saw addressed only equal athletics opportunities. The "game changer," she said, was guidance on sexual violence the Office of Civil Rights of the Department of Education released in 2011. The new policy, which first detailed the responsibilities of a school to address sexual violence, led to a flood of complaints from parents and students about schools failing to protect kids.

As the media and government attention put more pressure on schools to address sexual violence, complaints involving sexual violence at the K-12 level increased 277 percent between 2011 and 2016, and complaints at the postsecondary level increased 831 percent, according to the Office of Civil Rights' 2016 annual report. As of 2016, nearly half of the office's investigations for Title IX violations involve K-12 schools, and 47 percent of those are for sexual violence issues.

Because of the increasing number of complaints and lawsuits, Kimmel said public school districts “can’t keep their heads in the sand” any longer.

The Department of Education, led by Secretary Betsy DeVos, is now proposing controversial changes to the Title IX rule that would enhance due process for accused individuals and encourage schools to provide more support for victims, while making it harder for schools to get in trouble for mishandling complaints.

The changes, if approved, will only hold schools accountable for formal complaints filed through proper channels and will establish a higher legal standard for determining whether a school improperly responded to a report, The New York Times reported.

The new policy also alters the definition of sexual harassment from "unwanted conduct of a sexual nature" to "unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity."

"It is our goal with this proposed rule to ensure that Title IX grievance proceedings become more transparent, consistent, and reliable in their processes and outcomes," said DeVos in a published statement on the Department of Education website.

But the November announcement quickly received backlash from advocacy groups and lawmakers, who said the changes weaken protections for victims of all ages and could set K-12 schools back even farther.

Jacquelyn Martin, Associated Press
Education Secretary Betsy DeVos shakes hands with Henry Butler, dean of the Antonin Scalia Law School at George Mason University, before speaking about proposed changes to Title IX, Thursday, Sept. 7, 2017, at George Mason University in Arlington, Va.

The evolution of Title IX

Since Title IX's enactment in 1972, administrators and teachers in K-12 schools have struggled to understand what is required of them when it comes to sexual harassment. Historically, Title IX was used in K-12 schools to ensure equal opportunity in athletics for girls. But legal cases and policies from the Office for Civil Rights have since clarified that it also prohibits sexual harassment.

The 2011 Dear Colleague Letter, sent from President Barack Obama's Department of Education to 4,600 schools throughout the nation, was a major turning point that drew national attention to the issue of sexual violence in American schools, said Kimmel. The letter outlined the shortcomings of American educational institutions in handling claims of sexual misconduct and issued new guidance for addressing them.

While some applauded the protections the 2011 letter provided for victims during a school investigation, others argued that it was biased against the accused. After Donald Trump was elected president, a 2017 Dear Colleague Letter rescinded the 2011 letter, and DeVos promised a new regulation to come through formal rule-making procedures. That new regulation was released for public comment in November.

Most of the debate around these changes has focused on college campuses, and few have discussed how things like due process, evidentiary standards and investigative protocols play out in K-12. But studies show that when primary and secondary schools fail to comply with Title IX, sexual harassment doesn't stop — though reporting often does.

Jacquelyn Martin, Associated Press
Meghan Downey, 22, a recent graduate from the College of William & Mary, reacts outside an auditorium after Education Secretary Betsy DeVos spoke about proposed changes to Title IX, Thursday, Sept. 7, 2017, at George Mason University in Arlington, Va.

The American Association for Undergraduate Women found that 79 percent of public schools reported zero incidents of sexual harassment to the Civil Rights Data Collection in 2013-2014, even though a previous survey of 7th- to 12th-graders by the same organization found that nearly half of students had experienced sexual harassment at school in a single school year in 2010-2011.

Some states are better at reporting than others. Hawaii and Florida had the lowest reporting rates for sexual harassment statistics for the 2013-14 school year, the latest year for which data is available. In both states, 98 percent of schools reported zero incidents.

The Hawaii Department of Education has been under investigation by the Office of Civil Rights since 2011. According to a findings letter released in January 2018, Hawaii did not designate Title IX coordinators for its public schools and failed to sufficiently notify students and staff of their Title IX rights. The Office of Civil Rights also found that students in Hawaii were not reporting bullying or harassment because they felt like their school wouldn’t do anything about it.

The wrong response to a complaint can also discourage reporting, said Kimmel.

Kimmel said she saw a school investigate students for “sexual activity” when it received a report of sexual harassment. Punishing those who come forward creates a "chilling effect" and keeps other students from reporting, she said.

Rebecca Veidlinger, a lawyer and consultant for sexual assault in educational settings, said while schools are often accused of not doing enough, each school she’s worked with has wanted to be Title IX compliant. The problem isn't that school administrators don't care, it's that people are poorly trained and don't understand the dynamics of sexual harassment on a K-12 level or how to investigate it, she said.

Heather Tuttle, The Office of Civil Rights Pending Cases Currently Under Investigation at Elementary-Secondary and Post-Secondary Schools as of July 27, 2018.

"I see a lot of mistakes made," she added.

How K-12 is different

Some don't think K-12 and colleges should be treated the same in the first place.

Doug Larson, an attorney for the Granite School District in Utah, helps to oversee Title IX investigations in the district.

He said sometimes he feels the Office of Civil Rights is “trying to shove a square peg in a round hole” by lumping K-12 and postsecondary schools together.

Unlike college students, K-12 students have to be in school by law, which means schools have to ensure even perpetrators have access to education. And enforcement isn't as simple as kicking out a student who is accused of bad behavior. School administrators have to assess how accountable a student is for their behavior based on their age.

According to Larson, it's hard for school districts to apply regulations when they oversee tens of thousands of kids, ranging in age from 5 to 18, at all levels of social, emotional and academic development.

“When students become adults, there has to be more accountability for these kinds of issues," said Larson. "But when students are minors, our society is set up so parents, schools and other entities are responsible for those kids."

Another difference is size.

Larson said Title IX and much of the Office for Civil Rights guidance is written for a medium-sized college campus with a civil rights compliance office and three or four attorneys handling ongoing civil rights investigations. A medium-sized college campus might have between 5,000 and 15,000 students.

By contrast, Granite School District, where Larson works, has about 68,000 students. Granite, the third largest district in the state, is also one of the few districts in Utah that has an in-house attorney and an educational equity office. Its director is also the Title IX coordinator.

In other situations, a school district could have a thousand students and the Title IX coordinator could be the high school teacher who also teaches driver’s ed. It’s not unusual for teachers and administrators to “wear multiple hats,” according to Momi Tu’ua, former equity and advocacy specialist at the Utah State Board of Education.

The Utah State Board of Education keeps a list of Title IX coordinators and contact information on its website. But an analysis of all school district websites in Utah found that out of 41 districts, seven didn’t have the same person on their website as on the state’s website, and 15 didn’t have the Title IX coordinator named in their Title IX policy at all.

Turnover may have something to do with the discrepancies. There is no required certification or training to be a Title IX coordinator, so a school can easily pass the role around.

Tu’ua said Utah provides two trainings a year, in spring and fall, plus a convention on equality that encompasses all civil rights issues. While she said the trainings are well-attended, they aren’t mandatory, and no one tracks attendance.

The Office of Civil Rights also gives trainings upon invitation. Alberto Betancourt, press officer for the office, said there were 188 technical training sessions offered in 2017. There are more than 13,000 school districts in the country.

Part of the training teachers and administrators need is how to distinguish sexual harassment from everyday bullying, pushing or teasing, Larson said.

“When does that cross over into sexual misconduct that would violate Title IX? That’s a difficult line to draw,” Larson said.

Lack of training may also contribute to the underreporting of sexual harassment incidents. Tu’ua said each school’s principal usually reports the data to the district. But do the principals know and understand what counts as a Title IX violation?

“There could be some misunderstandings,” Tu’ua said.

What's next

Congresswoman Doris Matsui, D-Calif., introduced a House bill last year that would support schools in implementing Title IX by creating a new office under the Department of Education, called the Office of Gender Equity. The new office would provide training and support to Title IX coordinators, research best practices and provide grants to support schools in implementing Title IX.

Matsui is planning on reintroducing the bill in the new Congress, an aide to the congresswoman said.

In the meantime, Kimmel said if federal support does not increase, more students may turn to lawsuits.

“I think you’re going to see more lawsuits filed by victims instead of Office for Civil Rights complaints because the Department of Education of this administration has substantially reduced enforcement of Title IX,” Kimmel said. For example, she said, the office is no longer looking into transgender student claims.

Lawsuits could be more costly for schools than an Office of Civil Rights investigation. An invetigation may require the school to take actions to become compliant, but while it has the power to remove a school’s federal funding, it has never done so. Lawsuits, on the other hand, usually require the school to pay damages to the victim.

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Stop Sexual Assault in Schools is a nonprofit organization that started the #MetooK12 movement on Twitter last January. It urges schools to become Title IX-compliant to protect students and avoid lawsuits and works with survivors of sexual harassment and assault, informing them of their rights under Title IX and how to file complaints with the Office of Civil Rights.

The nonprofit also has a checklist for parents and students to evaluate whether schools are Title IX compliant, hoping that with increased support from local communities, K-12 schools will change their policies to better support survivors who report harassment or assault.

"Change is only going to happen when you look at it as a community problem," said Esther Warkov, one of the founders of Stop Sexual Assault in Schools.