A student makes a claim that she has been sexually harassed by another student in your district. In conformity with district policies regarding Title IX and the investigation of sexual harassment, you follow grievance procedures and after investigating, determine that the student was indeed sexually harassed by another student. The harassed student and her parents come to meet with you at the conclusion of your investigation and at this meeting, they demand to know if the alleged harasser was disciplined and what his discipline was. Your gut and your previous training tell you that you cannot divulge this information because the Family Educational Rights and Privacy Act (“FERPA”) generally prevents the disclosure of confidential information about other students. Even so, you also feel that the harassed student has the right to know that she will be safe at school in the future. How do you respond?
Student sexual harassment is a form of sex discrimination prohibited by Title IX, which forbids discrimination on the ground of gender in education programs or activities. Title IX protects students from sexual harassment at school and at school activities, including off-campus school sponsored trips. Schools have an obligation to respond promptly and effectively to claims of sexual harassment. Title IX regulations require schools to adopt grievance procedures which provide for the equitable resolution of sex discrimination complaints. As part of these procedures, schools generally conduct investigations to determine whether or not sexual harassment has occurred. If, after such investigation, a school determines that a student has sexually harassed another student, the school is responsible for taking immediate effective action to eliminate the hostile environment and prevent its recurrence. Steps should be taken to effectively and immediately end the harassment, which may include ordering the alleged harasser to stay away from the complainant or implementing a long-term suspension or possibly even expulsion for the harassing student.
Additionally, Title IX guidance from the U.S. Department of Education (DOE) provides that a student has the right to know the investigation’s outcome and the consequences for the alleged harasser. In January 2001, the DOE, Office for Civil Rights, (OCR) clarified that following investigations into student-on-student sexual harassment, Title IX requires that the complainant be notified about the outcome of his complaint, i.e., whether the complaint was found to be credible and whether the harassment was found to have occurred, including whether sanctions have been imposed on the student found guilty of harassment. Yet, this seems to run contrary to FERPA, which generally prohibits the nonconsensual disclosure of personally identifiable information from a student’s educational record. However, as stated in the 2001 Guidance and restated by OCR in an April 4, 2011, Dear Colleague Letter regarding sexual harassment of students, FERPA permits a school to disclose information to the harassed student about the sanction imposed upon a student who was found to have engaged in harassment when the sanction directly relates to the harassed student. OCR specifically found that sharing such information does not violate FERPA, as the outcome of the complaint directly relates to the student who made it. Therefore, this means that a school may share with a student who made a substantiated complaint of sexual harassment that the harassing student has been disciplined and what discipline has been imposed. However, disclosure of other information about the alleged harasser, including information about sanctions that do not relate to the harassed student, may result in a violation of FERPA. For example, perhaps a school clearly designates a student’s punishment for harassment of multiple students as a five day suspension for harassment of student A and a five day suspension for harassment of student B. In this case, student A is only entitled to know that the alleged harasser received a five day suspension for the harassment involving that student only.
The DOE stated that under its interpretation , if there is a direct conflict between FERPA’s requirements and Title IX requirements, such that enforcement of FERPA would interfere with Title IX’s purpose of eliminating sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions. The DOE reasoned that not permitting the victim of sexual harassment to have knowledge regarding the sanctions the alleged harasser receives prevents a victim from protecting themselves from a hostile environment if he does not know when or if the alleged harasser will return to school.
In reconciling Title IX and FERPA, a school district may disclose to a student [or his/her parent(s)], who was the victim of sexual harassment, information about the sanction(s) imposed upon the other student, who was found to have engaged in harassment, when the sanction(s) directly relate to the sexually harassed student. However, “directly related” must be narrowly construed to include only that information directly impacting on the health, safety and welfare of the victim. This could include whether the perpetrator has been disciplined, the dates they have been excluded from school, and any restrictions on his/her movement, including limiting potential interaction between the victim and the perpetrator.
If you have any questions, please contact Judy Shopp or Falco Muscante at 412-242-4400.