What Title IX Administrators At All Levels Can Learn From Recent Sexual Assault Charges Against 10-Year-Old for Playground Tag Game

Franczek P.C.
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My calendar has been full these past weeks with administrator trainings on Title IX, and one of the issues repeatedly raised is how age and maturity impact the analysis of whether conduct is sexual in nature. A recent report from Maryland provides a good opportunity to discuss this issue. Whether you are a K-12 or higher education administrator, this case is an important reminder of how age and maturity level come into play in student-on-student sexual misconduct investigations.

In this recent situation from Maryland, a group of fourth-grade boys was playing tag with a group of students, during which one boy made inappropriate comments and movement toward a group of girls. One of the boys wrapped his arms around one of the girls, as well. After an investigation, one of the boys was charged with a fourth-degree sex offense and second-degree assault.

The Office for Civil Rights (OCR) 2001 sexual harassment guidance addresses the issue of age and maturity, stating clearly as a preliminary matter that “[s]chool personnel should consider the age and maturity of students in responding to allegations of sexual harassment.” (2001 Guidance at iii). Where might age and maturity come into play in a case like this recent one from Maryland?

Is conduct of a sexual nature?

Conduct must be of a sexual nature in order to fit the definition of sexual harassment. If it is not, your sexual harassment policies and procedures won’t come into play. (Although, importantly, such conduct can and often should be addressed through other student conduct policies).

Age and maturity of students can be relevant when it comes to younger children because conduct that an adult might consider clearly sexual could, under the circumstances, be nonsexual among younger children. What if two kindergarten students were seen slapping each other on the rear on the playground? Anyone like me who has young elementary-aged kids knows that they often use their hands in ways that would be wholly inappropriate between adults, but are age-appropriate teachable moments for little kids. It is certainly reasonable that in some circumstances you may find that conduct by a very young child is not sufficiently sexual to implicate your Title IX policy. Just remember that there is a very fine line between an appropriate age-and-maturity analysis and an inappropriate “boys will be boys” or “girls will be girls” mentality. On the flip side of the coin, remember too that you should be using a “reasonable person” standard here. Even if a particular student or parent believes that conduct was of a sexual nature if it would not be reasonable to do so if your sexual harassment policies and procedures would not be implicated.

Does this only matter with younger students? Not at all. College students may make choices that look different than choices an older adult might make, and we need to take that fact into consideration in our Title IX analysis. Imagine a situation where a college student is wearing an outfit that allows her bra or underwear to be seen. A male student or professor feels this is harassing. Is that conduct of a sexual nature? What if a male student takes a photograph of the female student without her knowledge and shares it with another student. Is that conduct of a sexual nature if her underwear was visible to the public at all times? We might feel very different if the photograph captured underwear that was not purposely visible to the outside world, right? The final answer will depend on the other circumstances of the situation, but suffice it to say age and maturity level will be important factors in this and many other types of cases where conduct is alleged to be of a sexual nature.

Is there a hostile environment?

The other area where age and maturity come into play in the Title IX context is with determining whether conduct is sufficiently severe, pervasive, or persistent to create a hostile environment. In most situations, we look for a pattern or practice of sexual misconduct to determine if there is a hostile environment. If the Maryland playground game had only occurred once, for instance, and had only included verbal taunts by fourth graders, we might feel that the responding students deserve a warning and a chance to remedy their behavior before finding a hostile environment exists. This is really a decision considering the age and maturity of the responding students. That said, more severe conduct, such as a male student purposely grabbing another student’s private body parts, need not be repeated to create a hostile environment no matter how old the student is.

Maryland Case

In the Maryland case, one male student wrapped his arms around a female student. Might that have been the reason that this one incident was deemed to warrant law enforcement involvement and charges? Such physical conduct, depending on the circumstances, certainly could rise to the level of conduct of a sexual nature that creates a hostile environment for a student. Or maybe this was not the first time this type of incident occurred.

Without more facts, it’s difficult to assess this specific situation, but the school administration believed that there were some facts to justify a relatively serious response. If they followed their procedures with fidelity and engaged in a thorough analysis, including consideration of age and maturity level of the students involved and other required factors, it is unlikely that OCR or another reviewing body would second guess their decision. Decisionmakers who consider age and maturity level when appropriate and show their work should, therefore, feel comfortable and confident in their decisions under the law.

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.

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