Posted in Uncategorized on February 17, 2017
Schools and campuses are supposed to be a place where students can learn and should feel safe. Unfortunately, that is not always the case. Whether it is the school or college’s reputation or the fear of repercussions based upon an investigation, a problem is growing on campuses everywhere. Sexual violence on campuses is going unreported by school officials or, in some cases, it is being covered up.
Conspiracies to cover up the reporting of sexual violence are not confined to the college/university setting. High school students and even grade school children are being sexually assaulted without the administration and teachers taking appropriate steps to accurately report, investigate, and protect the victims and other students.
Title IX of the Education Amendments of 1972 was enacted to prevent discriminatory practices based upon sex to those institutions which receive federal funding. 20 U.S.C. § 1681 et seq. provides that all sex discrimination, including sexual violence is prohibited. Schools included are public and private elementary, secondary schools, colleges and universities that receive federal financial assistance.
The bulk of the media’s focus in recent months and years has concerned sexual assault and violence on college campuses around the United States. However, high schools, secondary schools, and elementary schools are not exempt from Title IX protection and are not strangers to sexual violence occurring to some of the most vulnerable of our population, our children.
Perhaps the most frightening aspect of any sexual assault occurring in minor children is the degree of influence and coercion that can be exerted against minors who report or attempt to report sexual violence. While it is abhorrent to think of any person being the victim of sexual violence, minor children are especially vulnerable.
It is important to understand a school’s liability when sexual harassment or sexual violence takes place. A school is not usually liable under Title IX simply due to the fact that a sexual assault took place. Similarly, a school will not be vicariously liable for the actions of teachers, students or third parties committing sexual acts. A school becomes liable in the Title IX context for its own misconduct. A more typical violation of Title IX is the school’s response to a report of sexual harassment or sexual assault.
A plaintiff suing a school under Title IX, school district or university is usually required to establish that the school had actual knowledge of the harassing or violent conduct and failed to take measures to correct the situation or was deliberately indifferent. A school will typically be deemed to have notice if a prudent employee knew or reasonably should have known about the sexual violence.
There is an exception to the requirement of a plaintiff having to establish actual knowledge on behalf of the school. While a school may not have actual knowledge that a sexual assault will occur in the future, actual notice can be satisfied and liability can attach to the school if the sexual violence is a predictable result of institutional policies or the failure to handle recurring situations. Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007).
In Simpson, two female students were sexually assaulted at a recruitment party off campus. There were reported sources that provided the school that sexual violence was a risk at these parties if there was a failure to provide adequate supervision.
Despite understanding the risks associated, the University of Colorado did nothing to protect students from the disclosed risks. The Tenth Circuit held that the University violated Title IX because the sexual assault at the party was caused by an official policy of “deliberate indifference to providing adequate training or guidance that is obviously necessary for implementation of a specific program or policy.” Id. at 1178.
Regardless of whether you are the victim of sexual violence or your child is the victim of sexual violence, discussing what legal rights you may have is important to understanding what to do next and whether the actions of the school are protecting the victim and other students.
So what happens when school teachers and administrators purposefully conceal reports of sexual assault on a child or student? What if the school is not talking to you as the parents or you the victim to tell you what is going on and whether there is an investigation into the sexual harassment or sexual assault? What do you do next and who do you turn to?
Contact the lawyers at Bryan & Terrill for help answering these questions and others and to provide a legal road map of what comes next and what your rights are. We are here to help.