SEE YOU IN COURT - November 2020

The challenges of reopening the Nutmeg Public Schools have fallen mainly to Ms. Superintendent and her staff, and things have been pretty quiet for the members of the Nutmeg Board of Education.  Veteran Board member Bob Bombast was therefore intrigued when he saw a post on Facebook referring to a complaint brought by a teacher.  Bob was, of course, very curious about the complaint, and he called all around trying to get the scoop. 

Without too much trouble, he learned from a source at the high school that the teacher was claiming that an assistant principal was sexually harassing her by spending an inordinate amount of time in her room, when students were present and otherwise.  Bob called a few fellow Board members to express his concern for the teacher and even followed up with an email to them vowing to get to the bottom of the situation.

Bob brought the subject up at the next meeting of the Nutmeg Board of Education.  “Ms. Superintendent, what is going on here?  I understand that one of our assistant principals is harassing a teacher, or worse.  What are you going to do about that and why haven’t you informed the Board members?”

Ms. Superintendent was visibly annoyed at Bob’s question, and responded curtly, “Let’s talk about that in executive session, shall we?”

Bob agreed, and he couldn’t wait to get to the executive session to get the full story.  He was disappointed, therefore, when Ms. Superintendent was less than forthcoming about the situation.  Once the Board members were convened in executive session, she explained that “a teacher” had brought a complaint against “an administrator,” but she declined to be more specific than that.  Indeed, she cautioned the Board members against getting into things that are “none of their business.”

“None of our business?” Bob responded to Ms. Superintendent.  “We have an important oversight responsibility here, and we can’t fulfill that responsibility if you keep us in the dark.  Do I have to reach out to the teacher personally?”

Ms. Superintendent told Bob in no uncertain terms to keep out of it, even raising her voice as she did so.  Ms. Chairperson tried to defuse the situation by noting that the Board members shouldn’t get involved in personnel matters, and the other Board members nodded in agreement.  But Bob was still unhappy to be shut out of what sounded like an interesting situation.

What is the Board’s role in such cases?

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The Nutmeg Board of Education certainly has a role to play here, but not as envisioned by Bob Bombast.  Thinking in terms of the separation of powers, dealing with personnel issues, here whether one employee sexually harassed another, is an executive responsibility for Ms. Superintendent in the first instance.  In this matter, the Board clearly has a legislative responsibility as outlined below, and it could have a quasi-judicial responsibility if action is ever required under the Tenure Law.  Given the possibility of later having to sit in judgment on a district employee, it is especially important for the Board to stay out of (and remain impartial) in personnel matters.

The clear and immediate responsibility for boards of education is legislative – to adopt or revise a policy to reflect the latest requirements under Title IX.  The United States Department of Education has adopted new regulations to implement Title IX, which became effective August 14, 2020, and these regulations impose a number of new requirements on boards of education.  CABE’s policy service includes a comprehensive Title IX policy for its subscribers to address these requirements.

The revisions to the Title IX regulations relate largely to the investigation and adjudication of sexual harassment complaints.  They set out a new definition of sexual harassment that includes quid pro quo harassment, sexual assault, domestic violence, dating violence, stalking, or “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.” Moreover, the new regulations limit what will constitute an actionable sexual harassment complaint to conduct that occurs at school or at a school-sponsored activity (as opposed to, e.g., at a party over the weekend).  Finally, school districts must respond to such complaints in a manner that is not “deliberately indifferent,” a defined term that requires specific actions when the district has actual knowledge of a sexual harassment complaint.

The regulations impute such actual knowledge to the district if “any employee of an elementary and secondary school” receives notice of such a claim.  The new Title IX regulations mandate specific training of all Title IX coordinators, investigators, decision-makers and informal resolution facilitators. Training of other school employees is not mandatory under Title IX, but the new “actual knowledge” standard makes it advisable to provide training to all employees as to their new obligations.

Once an educational institution has actual knowledge of a sexual harassment complaint, the district’s Title IX Coordinator has affirmative obligations, but these obligations do not automatically require the filing of a sexual harassment complaint.  Rather, the Title IX coordinator must reach out to the “complainant,” who is defined as the potential victim of sexual harassment, to offer supportive measures and to inform her or him of the right to file a formal complaint.

If the complainant (or in extreme cases the Title IX coordinator) chooses to file a formal complaint, districts must follow a newly-defined “grievance process” that includes separate phases of investigation, decision-making and appeal, as detailed in the regulations.  The details of these new requirements are beyond the scope of this discussion.  However, key elements include: separating the investigative and decision-making functions, treating the complainant and “respondent” (the alleged perpetrator) equally without bias, adopting a presumption of innocence, and imposing disciplinary consequences only after the grievance process has been completed.  Given these new requirements (and potential liability under Title IX), implementation of such new procedures, whether through policy or otherwise, is imperative.

Finally, we must note that the Nutmeg Board of Education has once again had difficulty complying with the FOIA requirements.  It is sometimes appropriate to discuss individual employees (or board members) in executive session.  But such executive sessions cannot be conducted ad hoc, as was the case here.  Rather, any individual(s) to be discussed must be notified in advance of his or her right to require that the discussion as to him or her be conducted in open session.