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Department of Education can’t substantiate assault in Oakhurst bathroom, finds Title IX violations

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Department of Education can’t substantiate assault in Oakhurst bathroom, finds Title IX violations

Oakhurst Elementary School.

This story has been updated. 

Decatur, GA — The U.S. Department of Education’s Office for Civil Rights has concluded its investigation prompted by an allegation that a gender-fluid boy assaulted a girl in an Oakhurst Elementary school bathroom.

The investigation, which began in 2018, could not substantiate that an assault ever occurred. It did, however, note that City Schools of Decatur did not follow the proper investigative procedures under Title IX, the federal law that protects students from discrimination. The investigation also unearthed conflicting reports about whether the boy accused of the assault was transgender or gender fluid, as was alleged in the original complaint. School district officials have always maintained the child identifies as a boy.

“OCR found conflicting evidence about whether [the boy accused of the assault] was in the girls’ bathroom and, if so, was there because of his gender identity,” the OCR’s Letter of Findings says. “OCR’s investigation reveals, however, that due to the [policy on transgender students], students are given leeway to select bathrooms of their choice, and there is evidence from [the boy’s] father that [his child] was using the girls’ bathroom, albeit for reasons unrelated to the policy.

“The [school] district’s approach allows children of different biological sexes to mix in the bathrooms, an area where students may engage in misconduct out of sight of adult supervision. Given the serious nature of the reports of harassment reportedly occurring in school bathrooms, one might have anticipated the district would be extra vigilant in providing a proper response under Title IX.”

OCR also concluded the school district did not retaliate against the mother of the alleged victim by reporting the allegations to the Georgia Division of Family and Children Services.

“OCR’s investigation did not substantiate the complainant’s allegation that the district retaliated against the parent in connection with the DFCS referral,” the Letter of Findings says. “DFCS referrals were prepared for both the [alleged victim] and [boy], and both referrals stated that the individual who allegedly touched the student inappropriately was a student, and both included parent-related information consistent with the information requested on the form. Accordingly, OCR finds the DFCS referral was not adverse action against the parent, and the evidence thus is insufficient to support that the district retaliated against the parent, in noncompliance with Title IX.”

The school district received OCR’s findings on June 19.

Vernadette Broyles, an attorney representing the mother of the alleged victim, declined to comment on OCR’s conclusions. Broyles filed a federal lawsuit against the district on May 29, 2020, alleging the district violated her client’s Title IX rights.

“I don’t want answer questions at this time,” Broyles said. “We frankly just recently received it ourselves. We’re still getting through it and working through our determination. We’ve got some thinking through we need to do before we make any further public statement.”

City Schools of Decatur Superintendent David Dude said the problems with the way the district handled the investigation are similar to the ones Decaturish uncovered in 2017 while reporting a story about how the school district handled allegations against a teacher accused of sexually harassing students. Dude said at the time the alleged assault happened, November 2017, the school district had not clearly defined who the Title IX coordinator was.

“We should have had a Title IX liaison who was specifically assigned to the case with specific training around Title IX,” Dude said. “At the time, the only Title IX person in the district was [former Decatur High Athletics Director] Carter Wilson. There was some confusion about who would investigate a case like this. Carter’s understanding was he was the Title IX coordinator for purposes of athletics, and the central office’s understanding is he was Title IX coordinator for the district.”

Wilson retired in the summer of 2017 before the alleged assault was reported.

Editor’s note: Following the publication of this story, Superintendent Dude issued a public apology to Carter Wilson for his comments. To read it, click here

The problems that OCR uncovered would’ve been ones that the district would’ve already been aware of through Decaturish.com’s reporting. The story about the Decatur High teacher was published in June of 2017. The alleged assault occurred five months later.

Dude, who was hired in 2015, said Title IX investigations were one of several processes that needed to be overhauled.

“There were a lot of things that we needed to do,” Dude said. “For a long time, we have operated as a tiny school district and done things informally when even though we’re in the midst of doubling in size and needed to become more sophisticated in how we handle certain items.”

The report notes that OCR investigators were unable to interview the parents of the boy accused of committing the assault despite multiple attempts to reach them.

The policy

The investigators examined whether CSD’s policy regarding transgender students was a factor in the alleged incident.

Investigators looked into, “Whether the district failed to provide a prompt and equitable response to a report that the student was subjected to sexual assault, and, as a result, was subjected to a sexually hostile environment, including whether the district’s implementation of the policy contributed to creation of a hostile environment for the Student and other girls, in noncompliance with Title IX.”

In a 2016 memo, Superintendent David Dude told staff that he expects students to be addressed using their preferred gender identity and that students should be allowed access to facilities – like restrooms – and activities based on their preferred gender identity. The School Board’s Policy has included protections for transgender students for well over a decade.

Broyles, and a coalition of parents and activists, complained about the policy.

OCR interviewed parents concerned about the policy, according to the Letter of Findings.

“OCR interviewed parents of students who are enrolled in, or have recently graduated from, the district who were identified by the complainant,” the Letter of Findings says. “These concerned parents stated that, through hearsay, they heard that the student was reportedly sexually assaulted by a male student who is gender fluid and was permitted to use the girls’ restroom. … The concerned parents expressed general concerns with the policy with respect to student safety and privacy; however, the concerned parents confirmed they had no examples of specific incidents or students directly impacted by the policy.”

As part of the resolution agreement with OCR, the School District is now required to investigate whether any students have been sexually harassed as a result of the policy Dude outlined in 2016.

“The Resolution Agreement requires the District to solicit information from school teachers, counselors, and administrators, as well as parents/guardians with children in the School, regarding alleged incidents of sexual harassment of students in school bathrooms, including any allegations of harassment associated with the policy, that has taken place from fall 2017 through fall 2019; designate a staff member to review the foregoing information collected and investigate any alleged incidents; and assess the information reviewed and investigation outcomes to determine what changes, if any, it may need to make to the policy to comply with Title IX and its implementing regulation,” the Letter of Findings says.

In a press release provided to Decaturish, the School District said the investigation was unable to determine that the policy was an issue in this case.

“The USDOE did not make a determination as to whether the alleged assault occurred, and it did not substantiate the allegation that the alleged assault resulted from CSD policy,” the press release said. “The party that brought the claim also alleged that the school district retaliated against them for reporting the alleged incident. The USDOE found that claim to be unsubstantiated.”

The School District also defended its policy regarding transgender students.

“As the United States Supreme Court just held in the case of Bostock v. Clayton County, discrimination on the basis of sex includes discrimination on the basis of transgender identity,” the School District said. “CSD’s policy allowing transgender students equal access to facilities is therefore required by law. Beyond its legal obligations, CSD is committed to treating all students with dignity and respect without regard to their gender identity. The position that has been taken by those who brought the claim in this case — that Title IX would require us to segregate transgender students — is simply incompatible with the law and our values. We will continue to enforce policies that allow transgender and gender nonconforming students equal access to all educational opportunities, including facilities, at our schools.”

Conflicting information 

The investigation unearthed several conflicting pieces of information, including whether the student accused of the assault identified as gender fluid and the date the alleged assault occurred. In all cases, Decaturish is declining to identify the mother of the alleged victim to avoid identifying her child. Decaturish also is not identifying the alleged suspect due to the suspect’s age.

Police responded to the school on Nov. 17, 2017 after the girl’s mother made her complaint.

According to a summary provided by police, “Staff advised a parent reported that on November 16, 2017 her 5-year-old daughter disclosed that a male classmate, who is also 5-years-old, made non-consensual sexual contact with her while inside of the girl’s restroom on November 10, 2017.  Due to the suspect’s age, there will be no criminal prosecution regarding the incident.  Referrals were made to the Department of Family and Children’s Services.”

OCR could not determine the exact date that the alleged assault occurred.

“The evidence reflects varying possible dates of the alleged incident,” the Letter of Findings says. “The complainant specified in her written complaint that the assault occurred on November 14 or 15, 2017. A set of medical records provided to OCR by the Complainant reflects that the parent reported that the incident date was unknown. A timeline prepared by the parent’s advocate reflects that the parent told the advocate the incident occurred between November 13 and 16, 2017. One set of notes written by School staff when the incident was first reported indicate that the parent said the student ‘initially reported that this incident took place on a Friday, but then was unsure’, and another set of notes of the same meeting refer to the student first indicating it happened on ‘Friday’ and then she said ‘the other day.’  In an ante litem notice to the district, the complainant stated that the incident occurred on or about November 14, 2017. Finally, a contemporaneous report prepared by the SRO referred to the incident occurring on November 10, 2017, a Friday, a date later repeated by the Decatur Police Department.”

A DFCS case manager also told investigators with the Office for Civil Rights that he was skeptical of the assault claims.

“The DFCS case manager also shared his assessment of the parent and her report, stating the student and her siblings were ‘very well coached’ and he did not believe the alleged incident reported by the parent had happened,” a footnote in the Letter of Findings says. “In an interview with OCR, [a social worker employed by the district] stated that she did not interpret the DFCS case manager’s text messages [about the case] to convey that he had met with the parent or had talked with the student concerning the alleged incident. Rather, she stated that she believed the DFCS case manager’s assessment was based on having had prior history with the family.”

The case manager for the investigation also maintained that medical professionals didn’t find any evidence of an assault when they examined the child.

“On November 19, 2017, the DFCS case manager exchanged text messages with [the social worker],” the Letter of Findings says. “The DFCS case manager shared with [the social worker], among other things, that the parent took the student to a hospital and the hospital ‘didn’t find anything.’

“Based upon [the social worker’s] dialogue with the DFCS case manager, [the social worker] emailed the [school principal that Sunday to advise her that DFCS had accepted the matter for investigation, school staff should not engage in discussion with the parent about the case, and [the social worker] had been asked to direct the parent to DFCS.  [The social worker] did not tell the principal that the DFCS case manager had reported that the hospital did not find anything upon examination of the student. [The social worker] told OCR that as a professional, she uses her discretion to determine whether or not information is ‘advantageous’ for someone who is serving the student every day.”

That claim that medical professionals “didn’t find anything” is directly contradicted by the lawsuit the mother filed against the district. The lawsuit says that the girl’s mother reported the hospital found redness and irritation in the child’s genital area.

“The diagnosis entered upon discharge included child sexual abuse,” the lawsuit states.

The lawsuit further states that, “Hospital officials encouraged [the girl’s mother] to request that school officials move the suspected perpetrator to another classroom (which she did).”

Gender identity questioned

The Letter of Findings also notes conflicting information surrounding the alleged boy’s gender identity and whether he was able to enter the girls’ bathroom.

“In OCR interviews, the principal, the assistant principal, the teacher, the paraprofessional, and the counselor all described [the student accused of the assault] as a biological boy who identified as a boy, and the nurse said he called himself a boy, although he occasionally wore girls’ clothing,” the Letter of Findings says. “[The boy’s] parents apparently did not conform to gender stereotypes in terms of their own dressing, nor did they enforce such conformity in their children. According to the counselor, one of [boy’s] parents said they thought [their child] was comfortable wearing either girls’ or boys’ clothes because he had not identified a gender yet. The assistant principal, who was familiar with [the boy] and his family, noted that [the boy] increasingly expressed a preference for, and increasingly wore, stereotypical boy’s clothing. Similarly, the counselor told OCR that after students were teasing him for wearing his sister’s clothes, [the boy] usually wore boys’ clothes. School staff said that they treated [the student] as a boy, using male pronouns to refer to him, and he never asked staff to use different pronouns.”

School officials said they observed the student accused of the assault use the boys’ bathroom exclusively and line up with the boys’ group to go to the restroom.

But the DFCS form says something different regarding the child’s gender identity.

“He is currently undergoing gender identity transition,” the form says, according to the Letter of Findings. “He often wears girls’ clothes and uses the female restroom at school.”

The form also says the child’s parents were “very supportive of his gender identity transition,” and said his parents often “[changed] gender roles as the father has presented at the school with female clothing.”

The school nurse, counselor, assistant principal and one of the social workers told OCR that the student’s gender identity wasn’t discussed when responding to the mother’s report that her daughter had been assaulted. The School Resource Officer told OCR that the terms transgender, gender fluid or “undergoing gender transition” may have been used when he took the initial report, but he couldn’t recall who would’ve used those terms or what the context was. The SRO said that gender identity wasn’t a factor in his investigation of the incident because they weren’t considered relevant to the alleged crime. There was no mention of gender identity in the report Decaturish received.

The boy’s father also indicated that his son was not gender-fluid, according to the Letter of Findings.

On December 5, 2017, the boy’s father emailed the assistant principal to discuss a conversation he had had with the principal earlier in the day.

“In the email, the father described having shared with the assistant principal that [his son], during the weekend of December 2, 2017, reported to his parents that he wanted to use the girls’ bathroom because he did not feel safe using the boys’ bathroom,” the Letter of Findings says. “According to [the boy], while in the boys’ bathroom, two students from his class told him he had a vagina and pulled down his pants. [The boy] also described an incident inside the girls’ bathroom, where a girl … told [him] he was not supposed to be in the girls’ bathroom and grabbed ‘the crotch of his pants.’ The father thought these incidents described by [his son] may have preceded the alleged incident in the report [filed by the girl’s mother]. Further, the father surmised that if in fact [his son] had touched a girl inappropriately, he may have been ‘acting out things that are happening to him.'”

The father in his email also referred to the school social worker calling his son “transgender.” The father said if his son had been using the girls’ bathroom regularly, he should have been informed, saying, “[it] is certainly something we wish to support if he so chooses, but in this case it does not match his ‘at home’ behavior.”

It appears the father’s claims of students harassing his son in the bathroom were not investigated, according to the Letter of Findings.

“The principal told OCR she recalled receiving this email from the father but stated that [the boy] was known to regularly say things that were not true,” the Letter of Findings says. “She said in response to this email she would have gone back to the teacher and the paraprofessional regarding their knowledge of the matters reported by the father. She, however, could not say if she had actually followed up with the teacher and the paraprofessional in this regard. The [school] district did not provide OCR with any documents that reflect that the district took any steps to investigate the alleged incidents that the father reported in his December 5, 2017 email. However, according to the assistant principal, school staff did begin monitoring the bathroom, as requested. [The boy] would come to the front office when he wanted a bathroom break and the assistant principal, nurse or counselor would stand in the doorway of the boys’ bathroom.”

The father followed up with an email to a school social worker in February 2018 regarding a statement the social worker made during their first meeting about the sexual assault allegation. The father said he was informed the social worker understood his son to be transgender. The father said the school’s principal told him that his son is not treated that way, so he was wondering where the social worker had obtained this information.

The social worker replied that there had been a “confidential discussion among school personnel” after the girl’s mother filed the report and during the discussion “it was noted that [the boy] wears girl clothes occasionally.” She said there was “no formal discussion” about the child’s gender identity, expression or possible gender transition following the report. She said the principal was correct in saying the boy was not being designated as a transgender student. She said generally it would be up to a parent to notify the school about gender identity concerns.

In a follow-up interview with OCR, the social worker said she did not recall that she or anyone else told the father his son is transgender and said school officials discussed the boy wearing girls’ clothes and that his parents allowed him to do so. The principal concurred, telling OCR that the social worker didn’t use the term transgender to refer to the student and neither did anyone else.

OCR said the school district should have followed up on reports that the boy had been sexually harassed by other students when his father informed school officials about it.

“OCR received no information that demonstrated the district took any steps to investigate these incidents,” the Letter of Findings says.

Lawsuit filed 

The girl’s mother filed a Title IX lawsuit against the School District in federal court on May 29, 2020.

In November 2019, Broyles — the mother’s attorney — told the conservative website The College Fix that she “in the dark” about OCR investigation and speculated that “politics” were delaying the investigation.

The lawsuit filed on May 29 says that, “[the girl’s] constitutionally protected right to be free from sexual harassment at school, and particularly in girls-only privacy facilities, was violated as the plainly obvious consequence of the district’s [transgender students] policy.”

The lawsuit seeks an unspecified amount of damages. Alliance Defending Freedom, an anti-LGBTQ group involved in the case, in May 2018 sent a letter to the school system an ante litem notice of its intent to file a lawsuit over the alleged incident. The mother of the girl requested a $300,000 settlement and a change of the school system’s policy that transgender students are treated according to their preferred gender identity.

The Alliance Defending Freedom declined to comment for this story.

The lawsuit also alleges that the district retaliated against the girl and her mother, which is contradicted by OCR’s findings.

“As a direct and proximate result of defendants’ retaliatory actions, plaintiff has suffered physical and psychological trauma, emotional distress, and educational disruption,” the lawsuit says. “Plaintiff was excluded from participating in and denied the benefits of defendant CSD Board’s education program as a further result of its retaliatory conduct.”

Dude said he was curious about the timing of the lawsuit and whether the plaintiffs knew in advance what OCR’s conclusions were.

“I can only guess that maybe there’s a feeling there’s a different standard between an OCR investigation and a court standard,” he said. “It does seem odd to me.”

Dude said the district admits that it made mistakes with regard to Title IX in its handling of the case.

“Our procedures when we first came to the district were pretty lax,” he said. “That was something we were working on.”

In its statement, the School District was unequivocal in its support for transgender students.

“City Schools of Decatur is proud to be a school district that supports all of our students regardless of their gender identity,” the School District said. “While this position has made the district a lightning rod for those who feel otherwise, we will stand by our values and continue to protect the rights of students.”

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