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  • Billie-Jo Grant, PhD

Applying Disability and Age Considerations to Title IX

Title IX, a federal law protecting against sex-based discrimination in education, mandates thorough investigations of sexual harassment complaints and concerns while also prohibiting such forms of discrimination. These investigations can be complex, involving at least three administrators (an investigator, decision-maker, and appeals officer), notifications to both parties, supportive measures, advanced notice of interviews, and comprehensive investigation reports. Implementing these requirements places a significant burden on school districts.

We often receive inquiries about whether young students can truly engage in sexual harassment if they lack an understanding of its nature. Should a Title IX investigation be conducted when the respondent is a kindergartener? Can a kindergartener genuinely comprehend the harm they are causing someone else? Similarly, can a student with a disability commit sexual harassment if they lack comprehension of its meaning?

Recognizing the Line Between Innocence and Sexual Harassment or Abuse

Bullying on school playgrounds has long been a prevalent issue, with children teasing, bullying, and even abusing their peers. Typically, they target those who are different or weaker, mocking their appearance, behavior, and disabilities. However, the crucial question arises: when does this playful behavior cross the line into a serious problem, requiring a sexual harassment investigation under Title IX?

One common scenario is when a child attempts to look under a female classmate's skirt or when a boy persuades a girl to undress for a "doctor" game. At times, one child may even request another to reveal their private parts. These scenarios and more can occur among school-age children. But when does such behavior transform into sexual harassment or abuse?

Educators and administrators in K-12 schools must prioritize student safety and ensure zero tolerance for any form of harassment or abuse. If harassment does occur, administrators need to understand their responsibilities in addressing such behavior. Does Title IX, the federal law prohibiting sex-based discrimination in education, apply to student-to-student situations where sexual harassment or abuse may occur? Moreover, does it apply to first-grade students or students with special needs who may lack awareness of their own sexual misconduct?

In addressing Title IX cases, it is not necessary to prove intent to harm, but rather the effect on the target or complainant must be considered. If the target or complainant experiences physical or emotional distress or if the harassment disrupts their educational experience, it can still be deemed harassment, even if the aggressor or respondent did not intend harm or lacks understanding of the nature of their actions. Appropriate support and actions should be taken to address the situation and foster a safe, inclusive learning environment for all students.

A student's age is a crucial factor in determining the appropriate course of action. For instance, addressing the concerns of a seven-year-old target or complainant with no prior issues requires a different approach than handling a high school student with a history of harassment.

Special Education Students and Sexual Harassment

Addressing sexual harassment and abuse becomes even more challenging when it involves special education students. Disturbing statistics have shown that children with intellectual disabilities are more vulnerable to sexual abuse. It is vital for all children to learn from an early age how to identify harmful behavior and communicate about it. However, children with intellectual disabilities often struggle to distinguish between normal affection and harmful conduct, and they may lack the capacity to give consent or comprehend the harm caused by their actions.

When determining appropriate corrective actions for a student with an intellectual disability, their level of maturity and cognitive abilities must be taken into account. While a student with dyslexia may not receive special consideration for engaging in sexual assault, a fifteen-year-old with the mental capacity of a seven-year-old likely would. If the target or complainant is a child with a disability, such as a learning disability, additional support, and accommodations may be necessary to address the situation effectively.

Title IX covers all K-12 students, regardless of age or disability. Therefore, it applies to younger children and children with disabilities as well. Regardless of the respondent's age or disability, if the conduct is severe, pervasive, and objectively offensive, schools must follow the intake and investigation procedures outlined by Title IX. The totality of the circumstances, including factors such as age and disability, should be taken into consideration when determining the appropriate actions to be taken.

If you require further guidance on these matters or need assistance with a specific situation, McGrath Training Solutions is here to help. With over forty years of experience working with school districts to address issues of bullying, discrimination, and abuse, we can provide solutions and strategies for problem-solving. Contact us today or call 800.733.1638 to receive assistance.

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