First an announcement: Are you reading this early in the morning? If so, there is still time for you to sign up for our firm’s On Demand Webinar: Ten Things to Know About the Title IX Regulations. It’s at 10:00 this morning. Haley Turner and I would love for you to join us. Go to www.walshgallegos.com.
Now for today’s content. Let’s think for a moment about the distinction between human beings and school districts. School districts are legal entities with geographical boundaries and a whole slew of laws that regulate what they have to do, what they may do, and what they can’t do. There are also many things they can’t do, not because they are forbidden by law, but because…..well…because they are not people.
Here are some of the things that people do that school districts can’t do: take a nap, eat pizza, daydream, watch Netflix, wonder when we can leave our homes, feel remorse, sing, throw a baseball, swim, smell a flower, dance. Another thing that people can do that impersonal legal entities cannot do is to know something. I know a few things, don’t you? But school districts lack cognitive ability. Like the Strawman in The Wizard of Oz they do not have a brain. They can’t think. They can’t know.
Title IX ignores all that and speaks of what the district “knows.” Under Title IX, a school district is not going to be held liable for the sexual harassment of a student just because it happened. Liability arises if: 1) it happened; 2) the district knew about it; and 3) the district responded to it with “deliberate indifference.”
Prior to the new Title IX regulations the standard for “knowledge” was that someone in the district who had the authority to do something about it “knew.” The new standard is that the district is deemed to have knowledge if any employee of the district had knowledge.
Here’s an example of the practical implications of that change. Buddy and Bobby are fellow coaches, good friends and drinking buddies. They are equal in the district’s organizational chart—teacher/coaches, neither of them supervising the other. In fact, Bobby works at the middle school and Buddy is at the high school. One late night, midway through the second six-pack, Buddy confides in Bobby. He’s involved in a sexual relationship with a high school girl. Buddy is the girl’s history teacher and informs Bobby that he is sure that the girl is going to earn an A in the class, along with an excellent recommendation for college.
What does Bobby do with this information? If he chooses to keep quiet about it, he will have violated school policy. He will also have violated the Educator’s Code of Ethics and the moral principles of most people. He may be liable for a failure to report suspected child abuse. So by all means, Bobby should speak up. But let’s just suppose he doesn’t.
Does Bobby’s knowledge of this situation put the school district on notice of a sexual harassment incident that it needs to address? Under previous standards, the answer is no. Bobby is Buddy’s peer—he is not in a position to take corrective action. He lacks authority to do so. But under the new regulations, what Bobby knows is imputed to the district. Thus if the situation with the girl later comes to light, and a Title IX suit is filed, it’s not just Buddy and Bobby who will be in trouble. The district will be in trouble because it “knew.”
Students confide in all sorts of people in the school district: counselors, paraprofessionals, substitute teachers, bus drivers, bus monitors. When any employee “knows” the district also “knows.”
DAWG BONE: WHAT ANY EMPLOYEE KNOWS IS IMPUTED TO THE DISTRICT.
Tomorrow: The Formal Complaint Process