June 17, 2022

New case highlights interplay between special education and sexual harassment laws

A recent U.S. District Court decision out of Washington State provides clarification regarding how school districts are to apply their sexual harassment policies and analyze conduct as it relates to students with disabilities. Specifically, the decision in Berg v. Bethel School District (W.D. Wash., Mar. 16, 2022, No. 3:18-CV-5345-BHS) clarifies that a school district is required to protect students with disabilities from sexual harassment, even if the student does not specifically object to the conduct.

Though this case was decided outside of California, it provides a helpful reminder to school districts regarding the interplay between special education and sexual harassment laws, including Title IX. Under both state and federal law, school districts are required to protect all students from sexual harassment, including those with disabilities. How consent is defined in school district sexual harassment policies should be examined, specifically taking into how the policy determines whether conduct is unwelcomed in the context of persons with different cognitive abilities. This case clarifies that a consent policy should not require a person to object to conduct for it to be considered nonconsensual. This case also highlights that even though the Superintendent may not have actual knowledge of a specific incident of sexual assault, the district may ultimately be held liable for a failure to respond to ongoing sexual harassment.

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