See You In Court - February 2023

Veteran Board member Bob Bombast was recently confronted at the grocery store by an exasperated Polly Parent.  She told Bob that her daughter attends Median Middle School and that she is being harassed on an almost-daily basis by a male classmate.  Polly reported that the boy follows her daughter down the hall making kissing sounds behind her.  On occasion, she went on, other boys would join in, making her daughter miserable.  Bob asked Polly whether she had shared her concerns with Ms. Principal, and Polly told him that was the worst part.  “She was sympathetic, but she told me that I just needed to be patient because her hands were tied with ‘new procedures,’ whatever those are.”

When Bob got home, he sent a curt email to Mr. Superintendent, with a copy to the other members of the Nutmeg Board of Education, asking him what on earth was going on at the Middle School.  Mr. Superintendent promptly replied to all, telling Bob to bug out.  “Unless and until you Board members are asked to sit in on an expulsion hearing, student issues are operational issues that are none of your concern.”

Not surprisingly, Bob did not drop the matter as Mr. Superintendent suggested.  Rather, as Chair of the Board’s Communication Committee, Bob reached out to Penny Pincher and Mal Content, the two other members of the Committee, and scheduled an “off-the-record” meeting at his house with those two Board members and Polly.  Polly repeated her story to the group, and she expressed appreciation that someone was finally listening to her. 

Bob thanked Polly and vowed to get to the bottom of this “outrageous” situation.  He reached out again to Mr. Superintendent and told him that he, Mal and Penny were insisting that the “problem at Median Middle School” be on the agenda for the next Board meeting.  

When the Nutmeg Board of Education reached that agenda item at its meeting, an exasperated Mr. Chairperson turned to Bob and asked him to proceed with “his” agenda item.  Bob was only too glad to do so.  Bob conveyed the concerns expressed by Polly Parent about the length of time the Administration was taking in investigating her complaint that her daughter was being sexually harassed.  “It has been weeks already,” Bob pointed out, “and this poor girl continues to be a victim of sexual harassment.  In our oversight role, we Board members must insist that the Administration protect our students from harassment.  Accordingly, I move that Administration be required to conclude any investigation of sexual harassment as soon as possible, but in no event more than ten days after a written complaint is received except for good cause shown.”

Mr. Superintendent objected, stating that such a timeline would be impossible to meet.  The Board members were concerned, however, that the district could be held liable if investigations of sexual harassment complaints drag on.  Notwithstanding Mr. Superintendent’s continued objection, the Board voted unanimously to approve Bob’s motion.  

Is the timeline imposed for investigating sexual harassment complaints appropriate?

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Prompt adjudication of sexual harassment complaints is important.  However, revised regulations to implement Title IX were enacted by the United States Department of Education effective August 14, 2020, and they impose significant procedural requirements on school officials that make it impossible to resolve a sexual harassment complaint in ten days or less.

The new regulations are set forth at 34 Code of Federal Regulations §§ 106.30 through 105.46, and they require compliance with an elaborate grievance procedure to adjudicate Title IX complaints.  Now, investigations require, first, that the investigator present evidence to both the complainant and the respondent (the parties), who each have ten days to respond.  Second, the investigator must then present a written report to the parties, and the parties again have ten days to respond.  Third, before making a decision as to the merits of the complaint, the decision-maker (who must be a person other than the investigator) must either afford the parties a live hearing or the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.  Finally, based on all the information gathered, the decision-maker must issue a written decision that conforms to detailed requirements.  

These procedures can take weeks and weeks, and school officials cannot take disciplinary action until they are completed.  The regulations do permit, however, emergency removal of a student accused of sexual harassment, but only if, after undertaking an individualized safety and risk analysis, school officials determine that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal of the student.

School officials must apply the new definition of “sexual harassment” carefully.  These time-consuming procedures are required only when the alleged conduct meets that definition, and school officials can deal with other misconduct in the normal course.  The definition of “sexual harassment” in the new Title IX regulations includes (1) quid pro quo harassment, (2) sexual assault, dating violence, domestic violence and stalking, as these terms are defined in the law, or (3) “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”  Some student-to-student harassment complaints involve unwelcome conduct of a sexual nature.  However, for such conduct to be “sexual harassment,” it must also be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”  When the alleged conduct does not meet this standard, it can be (and should be) addressed outside of Title IX procedures.

As usual, the actions of the Nutmeg Board members here raise other issues as well.  The email exchange between Bob and Mr. Superintendent included the other Board members on copy, and that discussion of Board business among a quorum over email would be considered an unposted and thus illegal meeting of the Board.  Moreover, if Bob, Mal and Penny were acting as the Communication Committee in meeting with Polly, that meeting would also be an illegal meeting because it was not posted and was not accessible to the public.

Finally, we note that Bob, Mal and Penny insisted on adding the “Problem at the Middle School” as an agenda item.  The bylaws of many school boards permit three or more members to add an item to the agenda for a board meeting.  More generally, we note that Conn. Gen. Stat. § 10-218 has long provided that the chairperson shall call a meeting “at least once in six months and whenever such chairperson deems it necessary or is requested in writing so to do by three of its members. If no meeting is called within fourteen days after such a request has been made, one may be called by any three members by giving the usual written notice to the other members.”  In the modern FOIA era, a “meeting” is a gathering to discuss specified agenda items, and adding an agenda item to a meeting as requested by three members would be consistent with this statutory provision.