Staff-to-Student Sexual Harassment
Many are aware of the practical implications of sexual harassment of students by school staff, but such situations can also have considerable legal implications, as well.
While the legal aspects of staff-to-student sexual harassment take a back seat to the moral and emotional considerations, the legal framework provides school administrators with a helpful basis for drafting policies, conducting investigations, and making decisions.
Title IX of the Education Amendments of 1972 prohibits disparate treatment of students in federally funded programs based on sex, and this treatment includes sexual harassment.
A Landmark Decision
The landmark staff-student sexual harassment case, Gebser v. Lago Vista Independent School District, was decided by the U.S. Supreme Court in 1998. The controversy in Gebser arose out of a sexual relationship between a teacher and a student.
Prior to the school's discovery of the teacher's sexual advances toward the student, other students had complained about sexually inappropriate statements by the teacher, but that matter was apparently put to rest at a parent meeting in which the teacher denied the statements, apologized for any offense, and gave assurances that he would make no inappropriate statements in the future.
After discovery of the relationship by authorities, which led to the teacher's arrest and termination of his employment, the student filed suit, alleging that the school was liable for the teacher's advances under Title IX.
The Supreme Court held that Title IX did indeed provide a cause of action against a school for staff-student sexual harassment. To be successful under such a claim, the court explained, a student would have to show the following:
- The student was subjected to actual sexual harassment under law.
- A school official with appropriate authority to end the harassment must have had actual notice of the harassment and failed to respond to it.
- The failure must have been so egregious as to rise to the level of deliberate indifference.
The court explained that because the student in Gebser could not show that any official of the school had actual notice of the teacher's offensive actions until the events that led to the teacher's arrest, the school could not be held liable for the teacher's sexual advances under Title IX.
Lessons from Sexual Harassment Case Law
More recent decisions have illuminated further the contours of a Title IX claim. While these decisions are not necessarily controlling outside the specific jurisdictions in which they were decided, they provide persuasive guidance to courts and school districts facing staff-student sexual harassment claims.
Gebser made clear that a staff member's sexual advances, whether or not resisted by a student, can constitute sexual harassment under Title IX. Additionally, "sex specific language that is aimed to humiliate, ridicule, or intimidate" a student can also rise to the level of sexual harassment under Title IX, according to the 4th U.S. Circuit Court of Appeals' 2007 case Jennings v. University of North Carolina.
For example, sufficiently egregious staff statements about students' bodies, sexual desires, sexual stereotypes, or other sex-based slurs can tread on students' rights to be free of sex-based harassment under Title IX. Some cases have turned on whether an appropriate official had actual notice of harassing conduct.
An "appropriate official" is, at a minimum, one who has authority in the school to take corrective action to end the discriminatory harassment. It is not always clear who such an individual might be in each school context.
In a 2009 case, Plamp v. Mitchell School District, the 8th U.S. Circuit Court of Appeals rejected a student's Title IX claim based on a teacher's inappropriate sexual comments and advances. The court explained that although the student could show that guidance counselors or other teachers may have been aware of the objectionable behavior, the student could not show knowledge by one with authority to correct the action because she had no evidence that a principal or higher official knew of the inappropriate conduct.
Many courts in Title IX cases have grappled with the question of whether a school had actual knowledge of staff-student harassment. This issue is more complicated when a school's officials have received prior complaints about inappropriate comments by a teacher.
To meet the actual knowledge standard, a school must have knowledge of "misconduct that would create risks so great that they are almost certain to materialize if nothing is done," according to the 6th U.S. Circuit Court of Appeals' 2008 case of Hansen v. Board of Trustees of Hamilton Southeastern School Corporation.
In this case, at least, a court held that a student plaintiff can meet this standard by showing that a school had knowledge of misconduct that would be so risky that you would be sure it would be carried out if nothing was done.
A student Title IX plaintiff can meet this standard, the Hansen court explained, by showing that a school or district was aware that the teacher was a "serial harasser" even if it was unaware of specific action by the teacher toward the plaintiff.
Even where a student can show a sufficiently powerful school official had actual knowledge of harassing behavior by a staff member, in order to successfully assert a Title IX claim, the student must still show that the school was deliberately indifferent. Courts have found that a school is not deliberately indifferent where it takes reasonable actions calculated to end the complained-of harassment. While this standard is not onerous, critics complain that it is uncertain.
Practical Recommendations for School Leaders
Staff-student harassment leads to numerous unwanted consequences for schools on many levels. Such conduct can erode student and parent confidence and result in significant legal concerns. As a school administrator, however, you can take many proactive steps to combat sexual harassment and to reduce your districts' vulnerability to Title IX harassment claims:
- Designate one or more employees responsible for coordinating Title IX compliance and dispute resolution, and publish their names, titles or roles and contact information. These steps are mandated under the regulations interpreting Title IX, according to the Code of Federal Regulations provision that requires schools to have a Title IX coordinator.
- Also pursuant to the Title IX regulations, publish and disseminate an antiharassment policy and grievance procedures to receive and address any student and faculty sexual harassment complaints under Title IX.
- Conduct wide-ranging Title IX trainings for staff at each level to outline your policies and the contours of appropriate and inappropriate interactions between staff and students. Make sure your training loops in all who might have contact with students, including administrators, teachers, coaches, maintenance workers and bus drivers. Although these issues can sometimes be uncomfortable to discuss and some staff might complain that these principles "go without saying," schools that take a proactive approach may well find that staff are less likely to commit violations and more likely to report their colleagues' indiscretions, all to the benefit of the students.
- Make sure that vendors, contractors, volunteers and others who come into contact with your students when working with you also are aware of your expectations for appropriate conduct and communications. For example, is the individual refilling the soda machine acting appropriately at your school?
- When complaints of sexually harassing or otherwise inappropriate behavior come in, investigate them fairly and completely, and take action reasonably calculated to end any inappropriate actions. Learn from past mistakes, and take protective steps in the future. ? Investigate resources offered by the U.S. Department of Education. The department's Office for Civil Rights revised its pamphlet "Sexual Harassment: It's Not Academic," which provides guidance for schools on Title IX compliance. Read www.ed.gov/about/offices/list/ocr/docs/ ocrshpam.pdf
- Consult counsel on all of the above and any other steps you take to prevent and address sex discrimination and sexual harassment. In addition to Title IX concerns, sexual harassment claims may involve a host of other legal issues, including state-specific matters, employment concerns, tort challenges, or even free speech issues. From drafting your policies to investigating complaints to defending claims, use your school attorney as a resource to help you avoid legal traps.