Parent/Guardian Rights (Response 5/23/2020)
In the Title IX final rule, Section 106.6(g) clarifies that parents/guardians are permitted to exercise their legal right to act on behalf of their child as “complainant,” “respondent,” etc., including stepping in to file a formal complaint under part 106.
What’s unclear, however, is whether this parent/guardian entitlement now triggers an obligation by the LEA/school to notify a parent/guardian that the school has notice of a report of sexual harassment when the school does not yet know whether the parent/guardian also has notice of the allegation. As we understand it, practices among LEA/schools differ (depending upon state law, LEA policy, and/or local custom/practice) as to whether they are required to make notification to a parent/guardian of an allegation of harassment.
Does this “right” imply an obligation to notify the parents/guardians of the report alleging that their child is the victim of some form of sexual harassment?
Section 106.6(g) of the Rule states (emphasis added): “Nothing in this part may be read in derogation of any legal right of a parent or guardian to act on behalf of a “complainant,” “respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but not limited to filing a formal complaint.” Thus, a parent or guardian who has the legal right to act on behalf of their child does not become the complainant by virtue of filing the formal complaint on behalf of their child; the “complainant” continues to be defined under the Rule (§ 106.30) as the person “who is alleged to be the victim” of sexual harassment. Section 106.6(g) applies to the entirety of 34 CFR 106, and is not restricted to the K-12 context. In the Rule at p. 1564 the Department states: “Whether or not a parent or guardian has the legal right to act on behalf of an individual would be determined by State law, court orders, child custody arrangements, or other sources granting legal rights to parents or guardians.”
The Rule imposes a duty on the recipient not to respond in a manner that is deliberately indifferent. See § 106.44(a). Thus, if it would be “clearly unreasonable in light of the known circumstances” for the recipient not to notify a parent or legal guardian of reported sexual harassment that affects that parent or guardian’s student, the school must notify the parent or guardian of the Title IX matter. Further, to comply with § 106.6(g) (i.e., in order to not derogate the legal rights of parents and guardians) a recipient may need to notify a parent or legal guardian so that the recipient is respecting any underlying legal rights of a parent or guardian to make decisions “on behalf of” a complainant, respondent, or other individual involved in a Title IX matter.