By David Nash, Esq., Director of Legal Education and National Outreach
A parent of a 7th grade student calls the middle school principal to complain that her daughter, Caitlyn, is being “harassed” by a boy in her class who keeps commenting on her appearance and making her feel uncomfortable. The mother says the comments are sexual in nature. The mother says they relate to the fact that Caitlyn tends to wear “form fitting clothes” and that her body has “developed more than some of her peers.” The mother goes on to note that the comments are being made by a boy, Robbie, who went to the movies a couple of times with Caitlyn, and that “I guess they were technically dating” for a couple of weeks. Apparently, Robbie always encouraged Caitlyn to wear tight clothing, and would sometimes tell Caitlyn, whenever she wore loose fitting sweaters or t-shirts, to stop doing so, because “they make you look fat.” The mother says that when she learned what Robbie was doing and how he was trying to “control” her daughter’s wardrobe, she made Caitlyn break up with him. The mother notes that Caitlyn is autistic and does not always understand appropriate boundaries. The principal is aware that Caitlyn does have an IEP. What now?
Many readers may recognize that such a call from a concerned parent would trigger a requirement to investigate the matter and take other steps to ensure the safety and well-being of students. But what may not be immediately apparent is that this single phone call has triggered legal obligations under numerous laws, including:
- New Jersey’s Anti-Bullying Bill of Rights;
- New Jersey’s Dating Violence Law;
- New Jersey’s Law Against Discrimination;
- The federal Individuals with Disabilities Education Act;
- The federal Title IX; and
- The school district’s Code of Student Conduct.
A recent settlement reached by the Office for Civil Rights with the Newark School District makes clear that school districts cannot simply conduct HIB investigations and assume that all other overlapping statutory requirements are met. In that case, OCR concluded that the district had failed to properly address allegations of sexual harassment involving student victims. The district had argued that such allegations were investigated under the Anti-Bullying Bill of Rights. But OCR noted a number of deficiencies in this approach, including failure to notify the Title IX Coordinator, failure to provide training for investigators and other staff on Title IX, and failure to identify the anti-bullying specialists as authorized Title IX investigators. See August 2023 OCR Settlement with Newark Public Schools.
So how do you ensure compliance with all of these laws and district policy? One approach would be to conduct separate investigations that are focused on compliance with each of these laws. Under this approach, the anti-bullying specialist at the middle school would conduct the HIB investigation. The district Affirmative Action Officer would do the investigation into possible violations of NJLAD. The Director of Special Services would conduct the investigation of possible IDEA violations, including the potential that the incident resulted in a denial of FAPE (free appropriate public education). The Title IX Coordinator would do the investigation into a possible Title IX violation. A school administrator would conduct the dating violence investigation. Finally, the principal or assistant principal would also investigate the possible Code of Student Conduct violations.
What could possibly go wrong with this approach? A lot!
First, it would place a tremendous strain on student and staff time and district resources, as 6 investigations are undertaken, all essentially reviewing the same alleged incident, albeit with a slightly different focus for each investigation. Under this approach, students and staff would potentially be called in 6 different times, by 6 different investigators, to recount what they know about the same set of issues 6 times, thereby losing valuable instructional time for students and teaching/professional time for staff. In addition, the Title IX Coordinator and Affirmative Action Officer would likely become overwhelmed with student investigations and be unable to effectively fulfill their other responsibilities.
Second, it would create significant challenges for information sharing, as witnesses, the alleged victim and the alleged aggressor inevitably share somewhat different information with each investigator. This would inevitably create situations where different conclusions would be reached because each investigator has somewhat different information than the next.
Third, the potential liability for school districts would skyrocket. Since a private right of action exists under NJLAD, Title IX and IDEA, and attorneys’ fees may be part of any judgement, a private attorney hired by the mother could pursue claims of discrimination under all 3 laws. In discovery, the attorney would have the right to access all relevant information gathered from each of the 6 investigations. The mother could also directly appeal the HIB, Code of Student Conduct and dating violence conclusions to the board of education, and then to the Commissioner of Education. The findings from those appeals could also be used as part of the NJLAD, Title IX and IDEA litigation.
If there were 5 or 6 investigations, it would be a proverbial “field day” for the plaintiff’s attorney. The depositions, and if necessary, potential cross-examination in state or federal court, would likely be a private attorney’s dream come true. Imagine questioning each of the 6 investigators about the approach each took, the questions they chose to ask, the evidence they reviewed and the credibility determinations they made. Then asking them about the inevitable differences in approach taken by other investigators, and the likelihood that different factual conclusions are reached by the various investigators, and how they could possibly justify the “alternative facts” reached about the same incident. Further imagine the delay that would invariably occur in conducting some of the investigations and the allegation that the district takes some form of discrimination more seriously than others, depending on which were investigated first.
Alternatively, the district could take steps to dramatically streamline the process and reduce the number of investigations. Under this approach, the district could look to authorize the anti-bullying specialists that are already in place in each school to be the lead investigators in those cases where students may have been targeted due to gender, disability or other protected characteristics under state or federal discrimination law. This makes sense since the ABS is already investigating those issues anyway, since they all could potentially result in a finding of HIB.
But given the unique legal requirements under the dating violence law, Title IX, and IDEA, additional steps should be taken under this approach. For example, under the little known dating violence law (see Teen Dating Violence (nj.gov)), dating violence is defined as “a pattern of behavior where one person threatens to use, or actually uses physical, sexual, verbal, or emotional abuse to control a dating partner.” In order for the school district to have jurisdiction, one or more incidents must have occurred at school, (which includes on school grounds or at a school function). In this case, if Robbie had made verbally abusive comments at school that were intended to control the way Caitlyn dresses, it may meet the dating violence definition. This in turn would trigger the investigation and response protocols outlined in district policy (See NJDOE model policy on dating violence). Thus, if the incident potentially involves dating violence AND HIB, it would be prudent for a school administrator to conduct the investigation alongside the anti-bullying specialist, to ensure that requirements of both laws are addressed.
The incident outlined in this article would also be investigated under Title IX, given that it may be deemed to meet the definition of sexual harassment. Readers should note that new Title IX regulations went into effect on August 1, 2024.
See Resource for Drafting Nondiscrimination Policies, Notices of Nondiscrimination, and Grievance Procedures under 2024 Amendments to the U.S. Department of Education’s Title IX Regulations
Sexual harassment under Title IX is defined as “unwelcome conduct of a sexual nature.” Conduct of a sexual nature includes both physical and verbal conduct, relating to the victim’s gender, sexual orientation or sexual identity. It involves conduct that would not have occurred “but for” the victim’s gender or sex. That conduct falls into one or two categories: Quid Pro Quo or Hostile School Environment. Quid Pro Quo means that the incident either involves a threat of unfavorable treatment if the target does not acquiesce to sexual advances or the promise of favorable treatment if the target does acquiesce. Hostile school environment means harassment that is “sufficiently severe, persistent or pervasive to limit a student’s ability to participate in, or benefit from, an educational program.” It should be stressed that Title IX claims also cover situations where individuals are targeted due to sexual orientation or gender identity. A finding of sexual harassment under Title IX would also meet New Jersey’s definition of harassment, intimidation or bullying. In this case it would be prudent to authorize the anti-bullying specialists to also conduct investigations of alleged sexual harassment under Title IX, since they would already be charged with investigating the alleged incident under the Anti-Bullying Bill of Rights.
However, additional training would be necessary for ABSs under this scenario, and others may still be needed to assist with Title IX investigations under some circumstances. Title IX requires any assigned investigators to have been trained on their obligations in conducting such investigations (in addition to broader requirements for all staff to be trained on Title IX compliance annually). In addition, Title IX permits parents to be present for interviews when their child is being questioned about alleged sexual harassment. Title IX also allows the student to bring an advocate other than a parent to such an interview (e.g. including potentially an attorney). In cases where a parent or other advocate is present, it would be prudent for EITHER the Title IX Coordinator or a properly trained school administrator to also be present for those interviews, given the heightened scrutiny involved and the additional challenges of interviewing a child with a parent or other adult potentially seeking to intervene during, or otherwise interfere with, the interview process. In cases where an attorney is present on behalf of the student, it would be wise to have the school board attorney present as well.
2010 Federal guidance from the Office for Civil Rights indicates that the district Affirmative Action Officer should be apprised whenever investigations occur of alleged discrimination based on protected characteristics under federal law. The New Jersey Law Against Discrimination similarly applies to alleged discrimination under state law. However, it is not necessary to have the Affirmative Action Officer directly conduct all investigations of alleged discrimination involving students, just to ensure that such investigations occur and that incidents of discrimination are effectively addressed. This can be done by developing a system that provides for automated notice to the AAO when HIB investigations are launched, in those cases where the alleged perceived characteristics are also protected classes under state or federal discrimination law (race, ethnicity, gender, religion, disability, etc.). Equally important, the AAO (and Title IX Coordinator in appropriate cases) should proactively review data on confirmed incidents involving protected classes and offer suggestions as appropriate (perhaps involving curriculum, staff training, student supervision, etc.) regarding any trends that may emerge.
In those cases where students with disabilities may have been targeted or are accused of engaging in bullying behavior, IDEA also applies. For example, before the anti-bullying specialist interviews a student with an IEP or 504 plan, they should consult with the student’s case manager or another staff member who is knowledgeable about the student’s disability, and where necessary involve that case manager or other staff member in the interview process.
Case law and OCR guidance tell us that when a student with a disability is the victim of bullying the impact may be so severe that the student is effectively denied a free appropriate public education or FAPE. Thus, federal guidance indicates that school districts should convene the IEP team if a student with a disability is a confirmed victim of HIB to assess the impact of the incident and determine whether it is necessary to revise the IEP to ensure the student continues to receive FAPE. But this is far less onerous that requiring the case manager to separately conduct a fact finding investigation as to what actually occurred, rather than relying on the investigation already completed by the ABS.
Finally, when districts are conducting investigations of alleged HIB and/or the other student investigations outlined above, it is very likely that evidence of other Code of Student Conduct violations will emerge. For example, while motive may not be immediately clear, evidence may quickly establish that student A cursed in school, or that Student B hit Student A on the playground. Thus, where feasible, it makes sense to have the ABS and a school administrator investigate alleged HIB incidents together. This allows the school administrator to ascertain (very quickly in some cases) whether or not there may have been a Code of Conduct violation, as long as the accused student has been given the opportunity to know what they are accused of and a chance to give their side of the story before a decision in reached. Some school districts make the mistake of waiting unnecessarily to address Code of Conduct issues until after the HIB or other investigation is complete. However, this has the potential to compromise order and safety in school, and makes any consequences imposed far less meaningful for a student when the discipline comes weeks or months later.
It is important to stress that any consequences for HIB cannot be imposed until AFTER the superintendent has signed off on the conclusion reached. However, most if not all confirmed HIB incidents will involve other Code of Conduct violations that can be addressed once established. In addition, any consequences for Title IX violations cannot be imposed until after a parent has completed any appeals of the results reached. However, as noted above, a case that involves a violation of Title IX will also likely provide evidence of Code of Conduct violations that would be actionable.
Readers should always keep in mind the additional reporting requirements that may be triggered under the Memorandum of Agreement Between Education and Law Enforcement, which requires that districts report any bias-related acts to both local law enforcement and the county prosecutor’s office. Bias-related acts are defined as “an act that is directed at a person, group of persons, private property, or public property that is motivated in whole or in part by race, color, national origin, ethnicity, gender, gender identity or expression, disability, religion, or sxxual orientation.”
Unfortunately, school districts are charged with implementing a myriad of state and federal anti-discrimination laws that are extremely complex. The temptation exists to treat each law discretely in order to properly address the legal requirements involved. However, this approach is fraught with legal peril and the potential to overwhelm district staff. By looking to thoughtfully streamline such investigations where possible, while ensuring proper training and safeguards are in place, school districts can enhance their ability to conduct effective investigations, get to the truth, protect student safety, and comply with a myriad of state and federal laws in the process.
Remember, ensuring the health and safety of Caitlyn does not need to involve a process that puts her, other students, parents and staff members through 5 or 6 lengthy and potentially retraumatizing investigations and that increases the potential for school districts to have significant legal exposure.