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Schools have responsibility for alleged sexual harassment by staff and by other students: 

• Staff-Student Harassment:  School officials with authority to institute corrective measures that they have notice of and can not be deliberately indifferent to the misconduct (Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998))          

• Student-Student Harassment: School divisions are not  liable for one student harassing another but may be liable for failing to respond adequately (Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)    

Definitions

Actual Knowledge 

Actual Knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. Imputation of knowledge-based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator.

Deliberate Indifference

A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.

Complainant 

Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Respondent

Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

Sex Discrimination  

Sex discrimination involves treating someone (a student, employee, or applicant) unfavorably because of that person's sex, including the person's sexual orientation, gender identity, or pregnancy.

The Office of Civil Rights (“OCR”) within the U.S. Department of Education recently noted that sex discrimination includes discrimination based on sexual orientation and gender identity (based on biological sex).

Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:

(1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;

(2) 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; or

(3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

Sexual Assault

Any sexual act directed against another person, without the consent of the Complainant including instances where the Complainant is incapable of giving consent.

• Forcible Rape - Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the Complainant.

• Forcible Sodomy - Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non-consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

• Sexual Assault with an Object - To use an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non-consensually) in instances where the  Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity

• Forcible Fondling - The touching of the private body parts of another person (buttocks, groin, breasts) for the purpose of sexual gratification, forcibly and/or against that person’s will (non-consensually) or not forcibly or against the person’s will in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

•  Incest - Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by [insert state] law.

•  Statutory Rape - Nonforcible sexual intercourse with a  person who is under the statutory age of consent in your state. (The age of consent in Virginia is 18.) 

Domestic Violence

A felony or misdemeanor crime of violence committed —

• By a current or former spouse or intimate partner of the  Complainant;

• By a person with whom the Complainant shares a child in common;

• By a person who is cohabitating with, or has cohabitated  with, the Complainant as a spouse or intimate partner;

• By a person similarly situated to a spouse of the  Complainant under the domestic or family violence laws of Virginia;

• By any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of Virginia.

• To categorize an incident as Domestic Violence, the relationship between the Respondent and the  Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

Dating Violence

Violence committed by a person who is or has been in a  social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition —

• Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.

• Dating violence does not include acts covered under the definition of domestic violence.

Stalking

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to —

• Fear for the person’s safety or the safety of others; or

• Suffer substantial emotional distress.

• For the purposes of this definition:

• A course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly,  or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a  person’s property.

• Reasonable person means a reasonable person under similar circumstances and with similar identities to the  Complainant.

• Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

• The TIX regulations insist this definition not be interpreted to violate the First Amendment.

Quid Pro Quo Sexual Harassment

Quid Pro Quo is a Latin term, meaning, “This for That." In terms of student or staff sexual harassment complaints, it means the “submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for educational or employment decisions affecting such individual."

Hostile Environment Sexual Harassment

A claim of “Hostile Work Environment Sexual Harassment” includes several factors: 

Was the behavior Unwelcome?

• “Unwelcomeness” is subjective and determined by the Complainant (except when the Complainant is younger than the age of consent)

In order for the complaint to fall under the new Title IX regulations, the behavior must be Severe, Pervasive, and Objectionably Offensive, also known as “SPOO.” (If the conduct does not meet the SPOO requirement, it should still be reviewed under other laws and school division policies.) 

Factors considered when determining if the behavior is Severe:

• Physical conduct is more likely to be severe

• It can be accompanied by threats or violence

• The circumstances (e.g., the ability for  Complainant to remove themselves from the harassment)

Factors considered when determining if the behavior is Pervasive:

• Was the behavior openly practiced?

• Was it well-known among students or employees – reputation of a  department, person, etc?

• Did it occur in public spaces (more likely to be pervasive)?

• The frequency of the conduct is often a variable in assessing  pervasiveness (look to intensity and duration)The type, frequency, and duration of the behavior

• Did the behavior have an unreasonable interference with school or job?

• Number of persons involved (was it group harassment)

• Size of the school, location of incidents, and context

Factors considered when determining if the behavior is Objectively Offensive:

• “I know it when I see it…”

• Age and relationships of Complainant and Respondent

• Number of persons involved

• Type, duration, and frequency

• Severity

• Physically threatening

• Humiliation

• Intimidation

• Ridicule

• Abusive

• Reasonable person standard  in context: The severity, pervasiveness, and objective offensiveness are  evaluated based on the totality of the circumstances from the  perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including  the context in which the alleged incident occurred and any  similar, previous patterns that may be evidenced

   

Retaliation

Retaliation is defined as conduct that may reasonably be perceived to adversely affect a person's educational or work environment because of their good-faith participation in the reporting, investigation, and/or resolution of a report of sex discrimination or sexual harassment.