Back-To-School Advisory: K-12 Schools Must Address Sexual Violence

While our country has turned its attention to sexual assault on college campuses, short shrift has been given to the same issue in primary and secondary education where the systems are even more broken. Forty-four percent of sexual assault victims are under the age of eighteen – meaning almost half of sexual assaults take place before the victim even gets to college, that is, if the victim arrives there at all. We can fix this with proper education and response in lower education.

If three recent complaints filed against the New York City Department of Education (NYCDOE) are any indicator, we suspect many victims of sexual assault are pushed out of school long before graduation. The reason? The NYCDOE has a practice of retaliating against victims of sexual assault by punishing them – rather than providing them with medical, emotional, and mental health resources.

Title IX is a federal law that prohibits sex discrimination in any federally funded education program. The United States Department of Education Office of Civil Rights has the authority to investigate and penalize schools for violating Title IX. The NYCDOE is presently under investigation for failing to address sexual harassment in schools, for retaliating against a victim of sexual assault, and for failing to curtail the spread of child pornography. In the case prompting the investigation, the female victim, then age 13, was raped by a male peer after school one block away from their Brooklyn public middle school in April, 2015. The boy, also 13, videotaped it, and distributed the footage via social media to his friends, causing it to swiftly spread throughout the school and beyond. Rather than treating the victim with care and compassion, school administrators treated her as if she had a contagious disease and shamed her. “Your daughter’s presence is a distraction. It’s causing the video to stay in circulation. She should stay home for awhile,” her mother reports being told. The mother, a part-time home health aide with almost no English, did as told and her daughter stayed home for weeks without so much as a call from school administrators.

Two other complaints have also been filed with the Office of Civil Rights, alleging strikingly similar things: students being punished for reporting sexual assaults.  In all three cases, the victims were girls ages 13-15, who attended public schools in low income Brooklyn neighborhoods (Brownsville, Bed-Stuy, and East New York); all are girls of color from broken families on public benefits. There is no question this demographic of victims is among the least likely to access justice. They are too young to go out and find a lawyer, in the unlikely event they or their parents even realize their rights have been violated in the first place.

While we are rightly concerned about justice and due process within college disciplinary hearings, in K-12 education many cases never even reach the disciplinary stage. Or if they do, it’s for the school to mete out discipline against the victim by victim blaming. Exactly this happened in one case where the victim, a 15-year-old girl with an IQ of 71, was taken to a school stairwell at lunch by seven boys and forced to provide oral sex on two while the other five watched and stood guard. Formal suspension proceedings were brought against the girl after she reported the incident and the assistant principal bizarrely determined the gang-rape was consensual. Often the knee-jerk reaction by administrators has been to require victims to transfer schools. In two cases, administrators told the victims’ parents it was policy for victims – and not offenders – to transfer. In one such case, the offender was welcomed back to school after a month long suspension for throwing a 13-year-old to the ground and simulating sex on top of her while a second boy held her head. The school threatened the victim’s mom with a Child Protective Services complaint when the mother refused to allow her child to continue at the school; this was the school’s solution, despite the NYCDOE’s inability to transfer her into another school. No doubt schools have their own self-interests to think about and under-report in order to keep their crime stats low. But it is important to note, a school active in remediating in-school sexual violence will appear to have more incidents of violent crimes from a reporting standpoint.

Despite statistics about sexual assault and the Title IX filings against it, the NYCDOE still does not see sexual assault of its students as a problem. New York City is home of the country’s largest school district, yet it has only one Title IX coordinator for 1.1 million students. That is unconscionable. Meanwhile, schools like Harvard and Yale have one Title IX staff member for every 420 and 413 students respectively. The Office of Civil Rights recommends one Title IX Coordinator per building. In addition to having no infrastructure for administrators to know how to handle reports of sexual assault, the NYCDOE is doing nothing to prevent the incidents from occurring in the first place.

What people are missing is the logical conclusion that if we handle sexual assault properly in primary and secondary education we will see less of it in higher education and beyond. If starting at a young age, sexual education involved teaching about consent and sexual respect, wouldn’t we expect those lessons to stay with kids into college and adulthood? And by properly handling reports of sexual assault within schools, we will be protecting our most vulnerable youth.

These are the strategies we suggest NYCDOE implement:

  1. Develop a New York Citywide Oversight Committee on Sexual Misconduct and Gender Discrimination to investigate accountability, training and education, sexual misconduct and gender discrimination reports, community norms, school environments, resources, recent history, and the NYCDOE’s existing policies as it relates to Title IX.

  2. Establish a specific and clear sexual misconduct policy, separate from Chancellor Regulations A-830 and A-831, which provides for a thorough definition of consent, direct and indirect sexual harassment, and sexual respect.

  3. Hire more Title IX Coordinators as recommended by the Office of Civil Rights.

  4. Notify students and school wide staff of the designated staff member to whom to report sexual harassment and provide clear and easy access to complaint forms.

  5. Produce literature clearly outlining prohibited conduct, the reporting process and procedural remedies, students’ right to file a criminal complaint, and their rights under Title IX to report their school district for noncompliance and retaliation.

  6. Create uniform curriculum to train staff on recognizing and responding to sexual harassment complaints and mandate regular trainings.

  7. Implement education and prevention programming for students about sexual harassment, school policies, bystander training, disciplinary consequences, and victim resources.

  8. Establish protocol to protect students who report sexual harassment from retaliation by students and staff members.

  9. Respond to all peer-to-peer harassment that creates a hostile environment, including conduct that technically occurs off school grounds, such as on the bus and Internet.

  10. Conduct prompt and equitable review of evidence before determining an outcome.

  11. Stop its knee-jerk reaction to push victims to transfer schools after an incident. Instead, focus on making the school a safe place for him or her to continue receiving an education.

  12. Make a cultural shift towards respect for all and weave the values of mutual respect into the protective fabric of school.

As we approach a new school year, the NYCDOE must recognize its important role in stopping sexual assault and addressing it properly when victims do report it.

Carrie Goldberg is a victim’s rights attorney at C. A. Goldberg, PLLC in Brooklyn. Servet Bayimli is a Schwarzman Scholar and former policy fellow at the Children’s Law Center New York.

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