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.