Professor Joanna Grossman's latest column at Justicia.com looks at recent efforts by the Department of Education's Office for Civil Rights to enforce Title IX's requirement that schools address sexual violence as part of their obligation not to discriminate based on sex. In addition to having issued a Dear Colleague Letter in April 2011 that explains how school and college officials should respond to charges of sexual violence on campus, the agency has recently adjudicated an enforcement action against a school district that failed to properly investigate a student's report of sexual assault. Professor Grossman described the case, called "Student v. Henderson Independent School District" as precipitating from a student's sexual assault by another student in the band room at Henderson (Texas) High School. Though the student reported it to the assistant band director, no action was taken by the school until she reported it again, two days later, to another school official. That official called the police, who upon investigation, determined that the incident was criminal in nature. Based on that conclusion, the school district took no further action to investigate the matter, and disciplined both students for committing acts of "lewdness" in violation of school policy.
Grossman characterizes the school's response as containing a "classic, but unacceptable error: it deferred to the police to
investigate the allegation, and based its disciplinary action on the
police findings alone." She then explains how OCR used this error as the basis for determining that the school district violated Title IX, reasoning that because Title IX -- as part of civil law -- uses the "preponderance of evidence" standard to determine a student's guilt rather, the conclusions of police are not dispositive of whether sexual assault was likely enough to have occurred to warrant protective measures taken by the school. The police, after all, look for whether the evidence of assault was sufficient to satisfy the stricter clear and convincing evidence used in criminal cases. The school should have conducted its own investigation, and acted on their findings accordingly.
The student could have used Title IX to sue the school district in court for damages, but instead pursued relief through the OCR. Grossman explains the advantage she might have had in going the agency route. OCR can't require a school to pay money damages for things like pain and suffering and other noneconomic harm, and is instead limited to relief that is mainly prospective in nature. But because money damages are not driving the case, OCR can use a lower bar than the courts for finding a school district responsible. It's possible that the student did not have enough evidence of the school's deliberate indifference to warrant a court judgment in her favor, but what evidence she did have was enough for an adjudicative victory. This case ended up producing a resolution agreement under which HISD is required to review and revise its policies and procedures for investigating sexual harassment and sexual violence complaints and take other steps to make sure this doesn't happen again. It must also required the school to remove the
lewdness violation and punishment from her educational record and pay for her to
receive private counseling. OCR was able to validate the victim's experience and provide a remedy that was appropriate for this case.