Department Of Education Asks School Leaders To Address Gender-Based Violence

by Franczek Radelet P.C.
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http://edlawinsights.com/wp-content/uploads/2013/03/departmentofeducation.jpgIn a Dear Colleague letter issued last week to chief state school officers, the U.S. Department of Education called for immediate action to reduce gender-based violence in schools. The letter is short and sets forth only a few general suggestions for steps that schools can take to respond to gender-based violence. But the letter must be read against the backdrop of two previous Dear Colleague letters issued by the Department on bullying, harassment and sexual violence. Against the backdrop of those letters, the most recent Dear Colleague Letter is yet another reminder of the high standards to which the Department and its Office for Civil Rights (OCR) holds schools with respect to sexual harassment and violence.

Background

By way of background, the letter reportedly was released during a White House event on teen dating violence prevention, which was part of National Teen Dating Violence Awareness and Prevention Month and the Obama Administration’s efforts to raise awareness of gender-based violence. A press release issued by the Department suggests that the purpose of the letter was to make clear that although strategies to improve school climate and reduce bullying are critical, they may not be adequate to address the harms of gender-based violence.

Gender-Based Violence Defined

So what is gender based violence? Examples from the letter are sexual assault, intimate partner or teen dating violence, stalking, and “other behaviors that degrade and harm children and youths, such as human trafficking.” The letter explains that gender-based violence occurs with both male and female victims, and that it can occur as early as elementary school. The letter includes statistics about the incidence of gender-based violence in schools as well as the harm that such violence can cause students.

Responding to Allegations of Gender-Based Violence

The letter suggests that schools should continue to use the tools they use for responding to bullying and harassment when responding to gender-based violence. These include strengthening students’ social and emotional skills, developing educator capacity to engage students and families, implementing multitiered behavioral supports and educating communities about prevention and identification.

But the letter also encourages schools to develop “locally tailored responses” to address incidences of gender-based violence, using “a comprehensive approach” that takes into account the unique challenges that these offenses present (e.g., victim reluctance to report, trauma from sexual violence). But the letter gives no insight into what such a response would look like.

Two previous letters issued by the Department shed some light on what a locally tailored response might include. A November 2010 letter made clear, for instance, that a school must take the following steps to respond to bullying and harassment claims, including claims of bullying and harassment based on gender:

  1. intervene immediately to stop the alleged conduct;
  2. conduct a prompt, thorough, and impartial investigation to determine if harassment is creating a hostile environment; and
  3. if a hostile environment exists, take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent reoccurrence.

A 2011 letter more specifically addressed sexual violence, defined as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent” due to use of drugs or alcohol or because of an intellectual or other disability. The letter made clear that schools must conduct their own thorough investigation of claims of sexual violence concerning students, even if the alleged conduct occurs off grounds. The letter provided a number of guidelines for the procedure to be followed when adjudicating claims of sexual violence, such as using a “preponderance of the evidence” standard and certain due process rights required for both the alleged victim and perpetrator. And the letter reminded schools they must take steps to protect the alleged victim during the investigation stage.

Based on these letters, if gender-based violence is suspected or alleged, school leaders should promptly and thoroughly investigate the claim. This is true even if the alleged incident occurred off campus, so long as there is a sufficient nexus to the school environment. During the investigation, the school should take prompt and effective action to make alleged victims feel safe, which might include offering an escort to classes or offering tutoring and schedule changes. Special attention should be paid to addressing the trauma from gender-based violence, such as by providing the alleged victim counseling support or other services as warranted. Schools also should not rely on police investigations or wait for them to conclude before conducting their own investigations.

The most recent Dear Colleague letter also encourages schools to do the following before any claims of gender-based violence are even raised:

  • Communicate the issue to raise awareness about the problem of gender-based violence by developing an information campaign for students, faculty, and parents.
  • Educate students and staff through training on the behaviors of victims and perpetrators of gender-based violence, how to respond when incidents occur, and the resources that are available for those who have been victimized. Consider how such training can be integrated into the schools’ broader efforts to create a positive school climate, and delivered as part of a multitiered framework for supporting positive student behavior.
  • Review policies and procedures governing student and faculty behavior – particularly protocols for intervention, reporting, and providing victim assistance – to ensure that they specifically address sexual assault, stalking, and intimate partner violence.
  • Engage the community by building relationships with community groups and organizations that provide services to victims of gender-based violence to increase awareness of community supports and resources available for students and educators. Examples include local law enforcement and staff from organizations established to assist victims of gender-based crimes.

Taking these steps before any allegation of gender-based violence is made can insulate a school against criticism that it has not taken a firm stance against such violence in its schools.

Resources

The letter referenced resources that schools can use to address claims of gender-based violence. A “What Schools Can Do” toolkit was issued with the letter that includes a number of resources, and the Department’s National Center on Safe Supportive Learning Environments also released a training module – Get Smart, Get Help, Get Safe – at the same time as the Department’s letter to help school nurses, school counselors, and school psychologists identify and respond appropriately to signs of abuse. School leaders should be aware that any response to a claim of gender-based violence, other sexual violence, or bullying or harassment based on a protected characteristic like gender is liable to bring significant scrutiny from the students involved, the parents of the students, the community, and the Department and OCR. It is more important than ever to take steps to adequately train the staff who are on the frontline of dealing with such complaints, as well as to work with legal counsel when allegations are received to ensure compliance with the Department’s guidelines.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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