Recently, ATIXA published a blog on charging correctly under Title IX, with respect to the legal requirement to charge respondents with the respective applicable sexual harassment definitions from the Fair Housing Act (FHA) and from the Title IX regulations, in situations where the FHA and Title IX overlap. Our next blog entry drills down on another common charging error we are seeing across the field – charging a respondent with both sexual harassment and sexual assault offenses despite the fact that the behavior is purely physical. This is not an appropriate practice under the 2020 Title IX regulations and should be discontinued.
This is not a matter of ATIXA’s interpretation, but a clear position OCR has taken in the preamble to the regulations. We know why the practice persists – charging a respondent with both sexual harassment and sexual assault was considered a best practice prior to the current regulations, to make a showing of discriminatory impact. It may be a best practice once again when the proposed regulations take effect in late 2022 or early 2023, but the approach under current regulations is intended to be different, and recipients need to adjust their charging practices accordingly.
In a complaint where there is verbal conduct that would be severe, pervasive, and objectively offensive (SPOO) if proven, charging with the offense of sexual harassment (SH) is appropriate (and required). Where the only allegation is sexual assault (SA), meaning a non-consensual physical sexual act, the appropriate charge is SA (and perhaps dating violence if the parties are or were dating), but not SH. In short, under current regulations, we never apply SH to physical sexual conduct for the simple reason that physical sexual conduct is already considered per se SPOO SH. Yes, this yields the perplexing result that merely grabbing someone’s butt for a sexual purpose, one time, is automatically deemed sufficient to deny someone educational opportunities, but our job here is not to defend the logic of the current regulations, but to explain them and their appropriate application.
We find that in some complaints, some schools are using the SH definition as an end-run around the SA definition by somehow interpreting the SH definition to cover a broader range of conduct than is covered by the SA definition. That is neither an appropriate nor accurate analysis. In fact, SPOO is, and should be, a harder-to-meet standard than the definition of SA, in many cases. The SH definition is narrow. The SA definition is comparatively broad.
ATIXA’s advice: Keep it simple. If SA, dating violence, domestic violence (DV), and/or stalking are found to have occurred, the SH definition is met automatically, without any need to perform an analysis of whether the SPOO elements are met. SPOO is assumed if any of the SA, DV, or stalking definitions are met. SPOO analysis is only applicable to purely verbal (versus physical) conduct. If the respondent has allegedly verbally harassed the complainant, AND has allegedly sexually assaulted the complainant as well, then, and only then, should you charge both SA and SH. You’ll find support for this position in the preamble sections quoted verbatim below, with underlined emphasis added by the author:
The Department agrees with commenters that for decades, sexual harassment has been a recognized form of sex discrimination that impedes equal access to education, and that rape and assault traumatize victims in ways that negatively affect participation in educational programs and activities. For this reason, contrary to the misunderstanding of many commenters, the Department intentionally included sexual assault as a per se type of sexual harassment rather than leaving sexual assault to be evaluated for severity or pervasiveness under the Davis standard. No student or employee traumatized by sexual assault needs to wonder whether a rape or sexual assault was “bad enough” or severe enough to report and expect a meaningful response from the survivor’s school, college, or university.
Thus, quid pro quo harassment and the four Clery Act/VAWA offenses constitute per se actionable sexual harassment, while the “catch-all” Davis formulation that covers purely verbal harassment also requires a level of severity, pervasiveness, and objective offensiveness. The “catch-all” Davis formulation is a narrowly tailored standard to ensure that speech and expression are prohibited only when their seriousness and impact avoid First Amendment concerns.
So, there you have it. Revise your charging practices, accordingly.
Read more ATIXA Tip of the Week blogs here.