For a year, the girl had tried to convey the lingering trauma of the attack to disbelieving school officials as they investigated her claims. Then over the summer, they brought her to a conference room at the Winchester Public Schools building to watch a surveillance tape in which she was seen zigzagging in and out of hallways trying to avoid him and seek help. She thought she had made a breakthrough.
Weeks later, the district issued its final report. Among its findings: She could not possibly be in distress because in one segment, she had smiled minutes after she saw her attacker.
“That’s when I realized that instead of investigating my complaint, they were investigating me,” the girl, now 15, said in an interview.
Efforts by Education Secretary Betsy DeVos to overhaul federal rules on sexual misconduct have focused public attention on college campuses, where assault, rape and harassment have made headlines for years. But her efforts to change those rules, put into place more protections for the accused and offer relief for educational institutions have prompted concerns from elementary and secondary school leaders, public school superintendents and other educators that highlight how schools grapple with sexual misconduct involving much younger students.
The new rules would apply to any elementary and secondary school district that receives government funding, hundreds of which — like Winchester — are under investigation by the department’s Office for Civil Rights over claims of violating Title IX, the 47-year federal law to prevent sex discrimination in education.
And where universities have procedures and adjudication processes that might need changing to comply with the new rules, elementary and secondary schools have been found to have no rules at all for dealing with sexual misconduct. The Education Department is investigating 652 complaints of Title IX violations related to sexual harassment and violence, 279 of which are against K-12 schools.
“It’s like the Wild West,” said Adele P. Kimmel, a senior lawyer at Public Justice, a legal watchdog group. “K-12 schools are light years behind colleges.”
The nation’s 98,000 public elementary and secondary schools educate 50 million children — nearly triple the number of young adults in colleges, universities and other postsecondary education facilities. And K-12 schools — often unaware of their obligations under federal law — have become notorious for failing to recognize and address sexual assault, and employing tactics to intimidate victims and avoid lawsuits.
“Across the country we still sit in the bad old days where K-12 school administrators can convince themselves and persist in the belief that they do not have Title IX responsibility,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and investigated a sharp rise in Title IX complaints concerning sexual violence in elementary and secondary schools.
Under the Trump administration’s proposed regulations, schools would be expected to recognize complaints under Title IX only where harassment is “severe and pervasive,” and could decline to investigate claims that happen off campus or outside the school’s programming. The rules would no longer explicitly define how schools should address a “hostile environment” for accusers.
The department is processing more than 100,000 comments submitted on the proposed regulations. Among them are those from groups representing K-12 principals, superintendents and school boards, all opposing the rules, which they say could further tie their hands in how they respond to sexual assault complaints from a vulnerable population.
“Title IX compliance is challenging in the K-12 space,” said Sasha Pudelski, advocacy director at AASA, the School Superintendents Association, “but nothing in these proposed regulations will make those challenges go away.”
Under the proposed rules, the Winchester Public Schools district would not have been obligated to investigate the girl’s complaint at all, since she said the assault happened off campus. The girl’s mother, Danielle Bostick, said that even though the boy pleaded no contest to misdemeanor sexual battery and felony abduction and agreed to a protective order, the school denied the family’s claims of assault and of a hostile environment.
The New York Times does not identify victims of sexual assault; the girl’s mother, who has a different last name, has spoken out about the case.
The school devised a plan to minimize contact between Bostick’s daughter and the accused, but her requests that they have zero contact and that he ultimately be removed from the school were rebuffed. After losing two Title IX appeals, the girl transferred to a private school nearly an hour away. The Virginia Legislature recently passed a bill named after her that would protect students with protective orders in school.
“Every choice those adults made was devastating to her,” said Bostick, who teaches Latin at the school. “There was nothing we could do, nothing we could show that would make them have compassion for her. The proposed changes would make our nightmare the new standard.”
Jason Van Heukelum, superintendent for the school district, said its conclusion was based on two exhaustive weekslong investigations that included reviewing nearly 1,300 pages of documents and conducting 17 interviews.
“We go to great lengths to afford our students and staff protections from the violation and the fear of assault and harassment in our schools,” he said.
Though colleges get the attention, it was a K-12 case that spurred the Supreme Court to expand the law to include student-on-student assaults. In 2016, the Obama administration issued guidance to K-12 schools as part of its overhaul of campus rules on sexual assault. The administration had seen a jump in sexual violence complaints in K-12 systems, to 83 in 2016 from 11 in 2009.
Even then, advocates and civil rights officials believed those numbers were grossly underreported, because school districts failed to recognize when children were articulating sexual harassment.
“If you don’t recognize sexual violence, you’re going to perpetuate it,” Kimmel said.
The Obama administration’s investigations into K-12 systems revealed some of the most egregious violations, Lhamon said. She said the civil rights office often encountered a “school’s insistence that they didn’t need to have standards because students shouldn’t be having sex.”
The Trump administration is trying to standardize proceedings that align with processes that court rulings have affirmed. And it has continued to aggressively pursue investigations and resolution agreements with K-12 school districts. Last year, the administration withheld millions of dollars in funding from Chicago Public Schools after The Chicago Tribune found that the school system had covered up rampant sexual abuse by students and staff members.
Colleges and universities have fretted that bolstered rights for the accused under DeVos’ draft rules would force them to set up the equivalent of courtrooms, complete with prosecutors, defense lawyers and cross-examinations.
But advocates say the Education Department should be cautious about how the rules would overhaul procedures in K-12 schools.
In a letter to the department, Public Justice said the proposed rules would “hobble Title IX enforcement, placing a premium on protecting schools from legal liability instead of protecting students from harm,” andcement some of the worst practices already employed in K-12 proceedings. For instance, the proposals call for “a live hearing” during which accusers and accused students would be questioned with the goal of challenging each other’s credibility. Schools could choose to use a higher evidentiary standard than is required in civil court cases. And they would be in violation of the law only if they had done nothing to address the misconduct, or acted with “deliberate indifference,” regardless of the process or outcome.
Public Justice is representing several clients across the country who say that a lack of procedures have led school districts to botch investigations and violate students’ rights under Title IX.
In a lawsuit against Gwinnett County Public Schools in suburban Atlanta, a high school sophomore said she was punished after she reported that she was forced to perform oral sex on a male student. A staff member who helped lead the investigation said, “I don’t know that I’m trained to qualify what is sexual assault,” the suit said. The investigation required her to re-enact the episode. “Why didn’t you bite his penis?” a school resource officer asked her, according to the suit.
During a disciplinary hearing, the girl was cross-examined by the accused student’s lawyer, who had to be told to “tone it down.” A lawyer for the school district also questioned the girl, concluding that he believed the encounter was consensual because she “did not scream louder and louder as this was going on.” Found to have violated the sexual misconduct policy, the girl was suspended — twice.
A county spokeswoman referred to the district’s motion to dismiss the lawsuit, in which it argued the school district did not violate Title IX because it investigated and determined the sex was consensual.
In another case, parents are suing the Washington Public Schools in Oklahoma, where they say their middle-school son had been assaulted three times over 18 months by his male peers, who shoved their fingers in his rectum in a classroom and locker room. Administrators called it “horseplay” but admitted they would have called the police if the same action had been done to a girl. When the parents asked the administrators to take action, the principal, who was also the athletic director, asked, “What do you want me to do — hold his hand?”
County officials did not respond to a request for comment.
Jesse Binnall, a lawyer representing an accused student in a Title IX lawsuit against Fairfax County Schools in Virginia, said there are even fewer due process protections at the K-12 level than in college, but school disciplinary decisions are more consequential for younger students.
“This isn’t something you learn from and move on; this is almost worse than a felony conviction,” he said. “If you’re going to put something on somebody’s record, something that’s going to haunt them for the rest of their lives, you’d better be sure.”
In Binnall’s suit, an 18-year-old male student says the school district violated his rights when he was suspended after a girl accused him of hitting her buttocks. The suit said the student had little notice to prepare a defense in a disciplinary hearing and was not able to question the accuser or the witnesses. The suit also contends that school officials ignored key evidence, and even though video evidence exonerated him and a witness recanted, they did not waive their decision.
Officials in Fairfax County Schools, which is facing at least one other Title IX lawsuit, declined to comment on pending litigation. In 2014, the district settled an investigation with the Office for Civil Rights, which required it to improve its Title IX process. A spokesman said the district was complying with its federal agreement and federal laws and was “committed to continually improving our practices related to preventing and responding to sex discrimination within our schools.”
For students like his client, Binnall said, DeVos’ new rules could be a step in the right direction. They outline extensive due process requirements that schools should follow, including proper notice to allow students to prepare for hearings, and providing equal opportunity to present witnesses and review evidence.
“It’s not that we have to have full courtroom procedures,” he said. “We need to have procedures in place that make it so that some sort of teenage vendetta doesn’t completely ruin the lives of an innocent student. And that’s what’s really lacking at all levels right now, especially the K-12 level.”