Laws and Policies

Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.” In 1992, Franklin v. Gwinnet County Public Schools was the landmark case whereby the U.S. Supreme Court ruled unanimously that students could sue for damages for sexual harassment and other forms of sexual discrimination under Title IX. The Franklin case involved a teacher who had a sexual relationship with a student, with the knowledge of other faculty members. The Davis ruling also set a precedent, this time in student-on-student sexual harassment. The Supreme Court ruled five to four that any school receiving federal money can face a sex-discrimination suit under Title IX for failing to intervene appropriately when a student complains of sexual harassment by another student.

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“It goes beyond kids acting inappropriately or unseemly to other kids, it goes to the responsibility of the schools and the people there to do something to stop it and intervene,” says Della S. Grossman, Ed.D., a clinical and forensic psychologist who specializes in sexual harassment and assault. The most common way that schools deal with sexual harassment is to draft policies addressing it. Many schools have sexual harassment policies that outline the steps in reporting it, stopping it and punishing those who do it. Some states, including California and Minnesota, have mandated that schools adopt a sexual harassment policy and distribute written copies to students.

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Duty to Train

School districts have a duty to provide ongoing education and inservice which go beyond perfunctory treatment of sexual harassment and instead sensitize employees and students to problems of harassment. The purpose of such a program is to educate and, where necessary, “clean up” past practices to transform the school culture. To accomplish this it is necessary to have students recognize the result and consequences of unhealthy sexual behaviors and attitudes. Students should know that they have a right to attend school in settings that are free from sexual harassment. They must know how to assess and respond to sexual harassment, including the procedure for filing a complaint.

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On May 6th, 2020 The United States Department of Education’s Office for Civil Rights (OCR) released a Final Rule implementing Title IX of the Education Amendments of 1972 (“Title IX”). The Final Rule takes effect August 14, 2020 and includes requirements for a minimum of 8 hours of training for Title IX Coordinators, investigators, decision-makers, and any person designated by a recipient to facilitate an informal resolution process, and awareness and response training for a minimum of 50% of all staff each year. (1959, 1960)

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Who do I Train?

All staff, students and parents need to be trained on what sexual harassment is and how to make a report. Title IX Coordinators, investigators, decision-makers, and any person designated by a recipient to facilitate an informal resolution need

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Train every student in your district from preschool on up. Train all district personnel both certificated and classified, full and part time, and train parents and guardians. Notify parents well in advance and invite them to view any videos or curriculum materials. Educate them on the issues, including their children’s right to a safe, respectful school environment.

 

Training materials and curricula are available for all grade levels. It is important to start at the earliest level. Behaviors including hitting, shoving, name calling, invasion of personal space and gender-based bullying have been identified as precursors to actionable sexual harassment and violence. Children must be sensitized to the hurtful nature of this behavior such that they not only act responsibly themselves but also know how to act when they observe or receive such treatment.

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How much Training is Sufficient?

At the middle and high school level, we recommend devoting at least one assembly and two full class periods a year on the subject of sexual harassment and conducting ongoing campaigns that emphasize and reward respect and responsibility within the student community. A sexual harassment curriculum can be appropriately incorporated into a course of study in social sciences, sociology, psychology, human sexuality, vocational education, health education, family life, or other related subject areas.

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For elementary age students, we recommend focusing on respect and responsibility, on training students to recognize and report bullying, teasing, and violence. Several elementary school districts report success with incorporating this training into school wide campaigns on respect. Devil’s Lake Public Schools in North Dakota has received statewide recognition for its elementary school campaign which includes regular student-designed assemblies on dignity, trust, and respect, a respect cheer and song, daily class discussions, video training, and the use of puppets (in grades K-2) to reinforce the lessons.

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A minimum of 8 hours of training for Title IX Coordinators, investigators, decision-makers, and any person designated by a recipient to facilitate an informal resolution process.

 

An awareness and response training is required for a minimum of 50% of all staff each year. (1959, 1960)

 

How to Shield Your District

The Supreme Court has emphasized that school districts are not liable for the original harassing conduct of one student to another or for adult to student sexual misconduct. They are liable for their own failure to take steps to prevent and to investigate. (Gebser v. Lago Vista Independent School District (1998). Having a good policy in place, with detailed complaint procedures which are followed by all personnel, will diminish the likelihood of harm to students and liability to the school district.

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More good news is that a proper investigation can shield the school district and its administrators in student sexual harassment cases. Under federal law a school district is not liable for hostile environment sexual harassment unless:

1. the school district knew the harassment was occurring;

2. the harassment was occurring in a context subject to the school district’s control; and

3. the school district’s deliberate indifference caused students to undergo harassment or made the students vulnerable to it, particularly by failing to take immediate and appropriate corrective action once it learned of the harassment.

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This liability shield is available so long as the school district’s response to the harassment is “not clearly unreasonable in light of the known circumstances.” (Davis v. Monroe). What is meant by “not clearly unreasonable” is near anyone’s guess, but a lot of latitude will be given to the institution’s decision making.

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Check out the OCR's checklist for addressing sexual harassment.

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Same-Sex Harassment

On March 4, 1998, the Supreme Court of the United States issued its decision in the case of Joseph Oncale v. Sundowner Offshore Services, Inc., and answered the question whether same-sex sexual harassment is, in fact, discrimination under Title VII. The petitioner, Joseph Oncale, was an employee of the respondent, Sundowner Offshore Services, Inc.,working on an oil platform in the Gulf of Mexico. He was a member of an eight man crew. The evidence submitted to the Court established that on numerous occasions the men forcibly subjected him to sex-related, humiliating actions in the presence of the rest of the crew. Oncale was also physically assaulted in a sexual manner by a fellow employee and threatened by several of the crew members. He complained of this treatment to his supervisor, but no remedial action was taken. As a result, he left his employment , stating that he “voluntarily left due to sexual harassment and verbal abuse.”

On March 4, 1998, the Supreme Court of the United States through Justice Scalia rendered a unanimous decision holding that sex discrimination consisting of same sex sexual harassment is actionable under Title VII (and by inference Title IX). The Court held that Title VII’s language of “because of sex” protects men as well as women and that Title VII does not bar a claim of discrimination “because of sex” merely because the plaintiff and defendant, or the person charged with acting on behalf of the defendant, are of the same sex.

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Important Take Aways from the Title IX New Final Rule

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The grievance procedures established by K-12 schools “may, but need not” include live hearings and cross-examination.” For the most part the regulations “require only that schools provide an equal opportunity to the parties,” leaving schools with the flexibility “to make the grievance process less formal or intimidating for students.” (1683)

 

Schools must provide to each party—and their parents—a description of the allegation and a copy of the investigative report on the incident. They also “must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.”

 

Live hearings and cross-examination might be appropriate for students approaching age 18, but certainly not for younger ones. Because “the Department agrees that schools themselves know best how to engage with their students,” school officials are “encouraged to use their discretion and expertise within the confines of the final regulations.” (1685)

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Learn how to do what you must do to protect students from harm and your district from liability.

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