Discrepancies in Employee Sexual Misconduct Reporting at US Public and Private Institutions
Trigger Warning: Please be advised that this article discusses sensitive subjects such as sexual assault. Reader discretion is advised
Parents send their kids to school placing faith in educators to teach, nurture and watch over their children— not so that their teachers can abuse them. However, the school setting is a breeding ground for sexual misconduct and provides an opportunity for ill-intentioned adults to attain a position of power which grants them access to society’s most vulnerable population. The United States Department of Education approximates that around 4.5 million kindergarten through to twelfth-grade are victims of sexual abuse perpetrated by a school employee. It is also reported that a single child predator employed at a school can have as many as 73 victims, often continuing to work completely undetected. These figures must change. All schools, regardless of their social and financial capital, must be held accountable for failure to report sexual misconduct and must be required to publically identify and terminate employees who have put children at risk.
However, there is a significant discrepancy in the public reporting of sexual misconduct when comparing American private and public institutions due to public schools' legal requirement to adhere to the Department of Education’s Office for Civil Rights' law: Title IX. Title IX under America’s Education Amendments of 1972 prohibits “discrimination on the basis of sex in education programs and activities” which also extends to prevent discrimination for those who have allegedly endured sexual abuse and harrassment at school. Only schools which receive federal funding must comply with this law, which holds them liable for the sexual misconduct that occurs under their watch and punishes the deliberate indifference of institutions who fail to report cases.
Private institutions not receiving federal funding are not required to comply with Title IX, and instead are subject to weak mandatory reporting protection laws which ultimately protect the institution from legal culpability rather than actually protecting victims of abuse. These laws enable school administrators to keep cases of misconduct at private schools silent and foster an off-the-record mentality that allows them to quietly let go of perpetrating educators, leaving them reputationally unscathed so they are able to continue teaching at new institutions. The silence of private school administrators is deafening and this “pass the trash mentality” fosters a damaging cycle of abuse that has regional and even national implications. The lack of legal consequences these institutions face for failing to report cases of sexual misconduct allows them to focus on protecting their reputation and privileges their ability to flourish as a business instead of safeguarding the well-being of their students.
There is also much room for improvement when it comes to regulating and amending Title IX so that it is easier for victims at public schools to seek justice. The landmark supreme court cases Gesver v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999) narrowed the scope of legal interpretation for Title IX’s misconduct to being “so severe, persistent, and objectively offensive that it effectively bars the victim’s access to educational opportunity”. This finite interpretation created a loophole that many worried would allow schools to turn the other cheek. In 2001, the Office for Civil Rights shot down this framework of interpretation and in 2014 President Obama issued new Title IX regulations which sought to “end any harassment, eliminate a hostile environment if it has been created, and prevent harassment from occurring again” in schools receiving federal funding. President Obama released detailed guidance that “shifted the paradigm” to foster a culture that focused on putting victims first and which aimed to change cultural attitudes surrounding sexual harrassment and assault which had become an epidemic on American campuses.
In 2020, former US Secretary of Education Betsy DeVos undid this work and regulated Title IX to make it even more difficult for victims in the public school system to report their abuse by raising the burden of proof from a “preponderance of evidence” to requiring “clear and convincing evidence”, thereby returning to a narrow conception of the type of misconduct that qualifies school’s to be held liable. Additionally, DeVos’s regulations also required cases to be held live in court and mandated that victims be cross-examined. DeVos also announced that Title IX did not extend to protect the rights of LGBTQ+ students. Upon taking office, President Biden issued an executive order that reinstated the application of Title IX to LGBTQ+ students and, as of 18 February 2022, Presiden Biden has sent a draft of his suggested amendments to Title IX to the Office of Information and Regulatory Affairs (OIRA) for their review.
Beyond Title IX, there is still much work to undertake so that all students feel safe and comfortable in their learning environment, and that they feel supported to come forward with stories of sexual misconduct rather than being shamed. Additionally, the law needs to change in order to hold private schools accountable for reporting sexual misconduct so the culture of recycling predatory educators in the United States can end.