In the past couple years, many independent schools have seen a rise in allegations of student-on-student abuse, sexual misconduct, bullying, cyberbullying and harassment. Following months of uncertainty, remote learning and fewer opportunities for social normalcy due to the COVID-19 pandemic, combined with global unrest, schools are noticing an increasing number of student mental health challenges and behavioral issues. While schools have increased their focus on mental health and wellness of students, schools should also revisit or develop policies to address, prevent and respond to allegations of peer-to-peer misconduct.
Schools often struggle with defining and understanding the scope of their jurisdiction when it comes to student-on-student harassment and abuse, especially when alleged conduct occurs online or off campus.
Schools often struggle with defining and understanding the scope of their jurisdiction when it comes to student-on-student harassment and abuse, especially when alleged conduct occurs online or off campus. When should a school get involved in conflicts between friends that turns into mean texts and social media posts? What about a bad breakup, in which a student alleging that a previously consensual relationship involved an incident of non-consensual sexual abuse off campus during summer months? Whether and to what extent schools can or should get involved in such situations should be evaluated carefully, taking into consideration any legal requirements that may apply to the school, the school’s policies regarding other types of off-campus or non-school related events, and the school’s mission and culture.
Schools may be obligated to treat allegations of peer abuse or harassment in a certain way depending on certain legal standards.
Mandatory Reporting. Depending on your state law, peer-to-peer sexual abuse may trigger mandatory reporting obligations. Some state laws are drafted broadly enough and do not limit reporting obligations to instances of abuse by an adult. If an adult at the school is placed on notice of peer sexual misconduct, schools should determine whether there is a duty to report such allegation as part of their initial response.
Title IX. Independent schools that receive federal financial assistance must comply with obligations under Title IX when receiving and responding to student-on-student sexual misconduct or sex discrimination. While independent schools generally do not fall within the jurisdiction of Title IX, many schools accepted federal funds through the Paycheck Protection Plan (“PPP”) and must comply with the procedural requirements of Title IX, which require, among other things, designating a Title IX coordinator for students and instituting grievance and investigation procedures. Once a PPP loan has been forgiven, the Title IX compliance obligations are removed; however, certain state laws may have similar requirements.
Negligence. A student that places the school on notice of allegations against another student may later claim negligence against the school for failing to appropriately respond to the allegations or for not taking certain remedial actions. In order for a school to be found negligent, the school must have had a “duty of care” that it failed to meet. Whether a duty exists can depend on legal standards as well the standards and expectations the school creates in its own policies and past practice.
In addition to legal considerations, schools should review their own policies regarding student conduct and discipline. Student policies should clearly establish the school’s expectations regarding student behavior and conduct, including their interactions with other students in person and online. Many schools have a code of conduct, policies against bullying and harassment, and a social media policy. It is important that such policies clearly provide avenues and instructions for students to report concerns about another student. Encourage students to report concerns even if they are a bystander.
Define the sort of misconduct that could result in disciplinary proceedings at the school. For example, if the alleged incident took place off campus but it impacts student interactions or experience on campus, is the school’s policy broad enough to investigate and impose mediation or disciplinary measures? What criteria will the school assess to determine whether off-campus conduct “impacts student interactions on campus” in a manner that the schools can or should get involved? Often, reviews of allegations involve murky facts and turn on the testimony of the students involved, without other witnesses or information to confirm whether conduct occurred as alleged. Including standards of evidence or a standard of review during investigations or disciplinary proceedings can help schools establish expectations and promote fairness in the process. Consider, too, whether the school is equipped to conduct such an investigation and when it would be better to engage an outside investigator.
When it comes to student discipline, consider a broad range of strategies to address the range of student conduct that may arise. While some situations unequivocally warrant removal of a student, there are far more instances in the gray areas that can or should be addressed with care. For example, consider options that would allow a student to be held accountable but then work through a process of restorative justice. Offer opportunities for mediation, counselor support, or other measures to bring clarity and healing to a situation. Think through how discipline or removal will be messaged to other schools and/or reflected in a student’s record and establish clear guidelines to avoid potential disputes.
Training and creating a culture of consent is a key element of preventing student-on-student sexual misconduct. Many schools choose to incorporate consent into their curriculum, ensuring that students have open avenues to discuss what may be sensitive or taboo topics. It is important, however, that the school not be the only source of consent information for students. Parents should be reminded of their obligation to work in partnership with the school, and reinforce not only consent discussions at home, but also prohibit activities such as parties where alcohol may be served.
In the enrollment contract and student handbook, emphasize the importance of partnering with parents and other adults in the student’s life. Such language should confirm the importance of the parent-school partnership and establish clear expectations for parent collaboration and cooperation. When behavioral issues present themselves, it is important to understand whether mental health may be a contributing factor. Schools may want to promote collaboration and ensure that school has access to outside counselors by including language in their handbooks authorizing the school to speak with a student’s healthcare providers when necessary and to obtain information regarding student mental health.
In conjunction with this policy, schools should also have parental authorization forms on-hand to obtain permission for school counselors and other appropriate personnel to communicate with a student’s outside health care providers and to obtain medical records, treatment plans and such other information.
In addition, independent schools would be wise to outline the role and duties of the school counselor, and specifically, should address what kinds of information the school counselor may keep confidential, and what kinds they may not. Having a clear policy about the school counselor’s role will avoid misunderstandings among all involved.