OCR Decision Reminds School Districts To Conduct Prompt, Thorough Investigation Of Student Sexual Harassment And Violence Claims

by Franczek Radelet P.C.
Contact

Mlive.com and the NSBA Legal Clips recently reported that a Michigan School entered into an agreement with the Department of Education Office for Civil Rights (“OCR”) to resolve allegations that the district failed to properly address claims of sexual assault by one student on two other students. The case provides an important reminder of the stringent standards to which OCR holds school districts when investigating claims of sexual harassment and violence against students.

In 2010, two female students in the Grand Rapids school district reported being sexually assaulted by a prominent male athlete. One of the students and her parents later reported on fifteen occasions that the student was repeatedly harassed in retaliation after the assault. The student reported being shoved in the hallways, bullied online, and taunted at school sporting events. The student eventually dropped out of extracurricular activities and later out of school.

OCR found that the District did not adequately investigate or respond to the complaints of assault and retaliation. The following are key takeaways that can be gleaned from OCR’s decision:

  • A law enforcement investigation does not absolve the school district of conducting its duty to investigate. Once a school district receives a report of sexual harassment or violence, it should immediately take steps to internally to investigate the claim. The scope of the investigation may be tailored to the severity of the claim, but OCR has made clear that a reasonable, prompt, and thorough investigation must occur. This is true even if the police are conducting their own investigation. In the Grand Rapids case, a police investigation was conducted and in fact the attacker was convicted of a crime for the incident in question. But OCR found that the police investigation did not justify the district’s failure to properly investigate the claim.
  • Implement reasonable interim measures before reaching a conclusion in the investigation. In the Grand Rapids case, OCR found that the school failed to take adequate interim measures when the complaints were made. For instance, the alleged victims of sexual violence were forced to continue taking classes with the alleged perpetrator for weeks despite the obvious severity of the alleged offense. The OCR decision is a reminder that these interim measures should be taken even before a conclusion is made as to whether a complaining victim’s claim has merit. Interim measures might include taking reasonable steps to limit contact between the alleged perpetrator and the alleged victims, keeping in mind that according to OCR, any burden must fall on the alleged perpetrator. For instance, if a student must be removed from a class, it should be the alleged perpetrator, not the alleged victim. Of course, such interim measures should be tailored to the severity of the alleged offense and steps should be taken to address any rights of the alleged perpetrator to obtain an education, but OCR has made clear that there is no excuse for not addressing interim measures. At the very least, school officials should meet with the alleged victim and his or her parents to discuss and implement a plan to address concerns they may have with the students having contact in the educational environment. If after implementing interim measures, the school district determines that the complaint is without merit, the interim measures can be reversed. Addressing the rights of the accused and the alleged victim during the investigation is a very tricky area of the law and is one in which school officials may benefit greatly from assistance of legal counsel.
  • After receiving a report, frequently monitor and check in with students who are alleged victims or reporting witnesses to determine if any retaliation is occurring. As noted previously, one of the Grand Rapids victims subsequently reported retaliation by other students for making her complaint against the attacker. It appears that the district only became aware of this misconduct when the student and her parents reported it. The District likely would have been on better footing with OCR if it had checked in with the student, discovered that retaliation was occurring without reports being made, and addressed the hostile climate that the behavior was creating. Efforts to check in with alleged victims and reporting witnesses can also go a long way to make students feel safe in the school environment at a time when they may feel particularly vulnerable.
  • When multiple claims of a similar nature are made within a short time frame, consider a hostile environment. OCR found that the school district failed to consider the second victim’s allegation of a sexual attack when deciding whether there was a hostile environment in the school. And when one of the students and her parents reported retaliatory harassment by other students, the school district did not investigate most of the claims. The OCR finding is a warning that when there are alleged incidents of a similar nature within a short time frame, OCR will likely find a hostile environment and so school districts likely should, too. School districts should then take steps, often including school or school-district wide steps to address the hostile environment.

These are just a few of the lessons learned from the Grand Rapids case. Perhaps the most important lesson learned is that OCR continues to aggressively investigate claims of sexual harassment and violence. Entering into a resolution agreement with OCR is no light matter. School districts are better served to address any claims of harassment or violence, no matter how big or small, promptly and thoroughly and with sensitivity to alleged victims and complaining witnesses, so as to avoid having to enter into an agreement with OCR if a complaint is filed.

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

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.