TITLE IX v. FERPA: Which Law Trumps Following a Sexual Harassment Investigation – By: Betsey Helfrich

Published by MoASBO, February 2013

Imagine the following scenario:  a student makes a claim that he has been sexually harassed by another student in your district.  Per Board of Education policy, you follow grievance procedures and after investigating, determine that the student was indeed sexually harassed by another student.  The harassed student and his 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 tells you that you cannot disclose this information because the Family Educational Rights and Privacy Act (“FERPA”), generally prevents the disclosure of confidential information about other students.  However, you also feel that the harassed student has the right to know that he will be safe at school in the future.  What do you do?

This article will explore the answer to this question and examine the interplay between FERPA,  20 U.S.C. 1232; 34 CFR 99, and Title IX of the Education Amendments of 1972 (“Title IX”), which prohibits discrimination on the basis of sex in education programs or activities, 20 U.S.C. 1681; 34 CFR 106.

Sexual harassment of a student is a form of sex discrimination prohibited by Title IX.   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.  34 CFR 106.8(b).  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.  34 CFR 106.31(b).   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.  However, this brings us back to the question – does the complainant have the right to know the outcome of your investigation and the consequence for the alleged harasser? Title IX guidance from the U.S. Department of Education says yes.

In January 2001, the U.S. Department of Education, Office for Civil Rights, issued a publication entitled, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Other Third Parties.  In this guidance, OCR clarified that following investigations into student-on-student sexual harassment, Title IX requires that the complainant is notified about the outcome of his/her complaint, i.e., whether the complaint was found to be credible and whether harassment was found to have occurred, including whether sanctions have been on imposed on the student found guilty of harassment.  Guidance p. vii.  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 to the harassed student information 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 out of school suspension for harassment of student A and a five day out of school 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 his harassment of him.

The Department of Education stated that under its interpretation of the various applicable laws, if there is a direct conflict between the requirements of FERPA and the requirements of Title IX, such that enforcement of FERPA would interfere with the Title IX’s purpose of eliminating sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.  2001 Guidance at vii; Dear Colleague Letter at p. 13.  The Department of Education reasoned that allowing the victim of sexual harassment to have knowledge regarding the sanctions the alleged harasser receives prevents a victim from continuing to be subject to a hostile environment if he does not know when or if the alleged harasser will return to school.

Bottom line:  A school may disclose to a student who was the victim of student-on-student sexual harassment information about the sanction imposed upon a student who was found to have engaged in harassment when the sanction directly relates to the harassed student.

© 2013 Mickes Goldman O’Toole, LLC

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