IX and Sexual Harassment
Education Development Center
Sexual harassment, defined as unwanted and unwelcome behavior of a sexual nature, affects students in educational institutions ranging from elementary to postgraduate schools. In fact, the Report Card on Gender Equity from the National Coalition for Women and Girls in Education (NCWGE) gave progress in eliminating sexual harassment the lowest rating (a "D+") in its assessment of nine key areas of education affected by Title IX over the past 25 years.1 Concluding that "sexual harassment remains a significant impediment to gender equity for girls and women across the board," the Report Card cited the following statistics:
These findings were contained in a 1993 Louis Harris and Associates study commissioned by the American Association of University Women’s Educational Foundation which surveyed more than 1,600 public school students from across the United States.3 In this study, students were asked to indicate how often, over the course of their school careers, they had experienced unwelcome or unwanted behaviors that are defined as sexual harassment. The behaviors were defined for students in the following way: "made sexual comments, jokes, gestures, or looks; showed, gave, or left you sexual pictures, photographs, illustrations, messages or notes; wrote sexual messages/graffiti about you on bathroom walls, in locker rooms, and so forth; spread sexual rumors about you; said you were gay or lesbian; spied on you as you dressed or showered; flashed or "mooned" you; touched, grabbed, or pinched you in a sexual way; pulled at your clothing in a sexual way; intentionally brushed against you in a sexual way; pulled your clothing off or down; blocked your way or cornered you in a sexual way; forced you to kiss him/her; or forced you to do something sexual, other than kissing."
Sexual harassment is a problem affecting both genders. Two-thirds of all students surveyed reported being the targets of sexual comments, jokes, gestures, or looks: 76 percent of the girls and 56 percent of the boys. Eleven percent of the students reported being forced to do something sexual other than kissing: 13 percent of the girls and 9 percent of the boys.4
The experience of sexual harassment seems to have an effect on all students’ educational, emotional, and physical development, although girls report more problems than boys. For example, 33 percent of girls who suffered sexual harassment said they did not want to attend school compared with 12 percent of boys; 32 percent reported not wanting to talk as much in class compared with 13 percent of boys; 28 percent found it harder to pay attention in school compared with 13 percent of boys; and 18 percent of girls reported thinking about changing schools compared with 6 percent of boys.5
How early in one’s school career does sexual harassment begin? According to the study, a student’s first experience of sexual harassment is most likely to occur in the middle school/junior high years of 6th to 9th grades: 47 percent of the students who have been harassed fall into this group (40 percent of the boys and 54 percent of girls). Thirty-two percent (32 percent) experienced harassment before 7th grade (34 percent of girls, 32 percent of boys). Forty-two percent (42 percent) of African American girls and 40 percent of Hispanic girls have been targeted this early, compared with 31 percent of white girls. Some students (6 percent) first experienced unwanted advances before the third grade—notably 10 percent of Hispanic girls. 6 Special education students face additional challenges in dealing with sexual harassment in school, and students with cognitive disabilities may be at an even greater risk of being sexually harassed by other students due to their increased vulnerability.7
The detrimental effects of sexual harassment are only compounded by schools’ failure to have policies and procedures in place to address this issue meaningfully. For example, in a 1993 study conducted by the NOW Legal Defense and Education Fund and the Wellesley College Center for Research on Women, only 8 percent of the respondents reported that their school had and enforced a policy on sexual harassment.8 Further, the study found that schools without policies are less likely to take action against an alleged harasser: schools with policies took action in 84 percent of cases, compared to schools without policies doing so only 52 percent of the time.9
Who is doing the harassing and why? It is generally believed that power, not sexual attraction, is the impetus for sexual harassment. In the school setting, adults who work as teachers, administrators, and other school staff have power over students. Some abuse that power in the form of sexual harassment. When Lee, Croninger, Linn, and Chen re-analyzed the data from the 1993 AAUW survey, they found that, over the course of their school careers, sizable proportions of students (especially girls) reported being harassed by school employees: principals (2 percent), teachers (16 percent), and staff (44 percent).10 However, students also harass their peers. In fact, in their analysis, Lee et al. found that 96 percent of the students who reported being harassed had been harassed by a fellow student.11 Further, more than half of these students (males and females) say that they have committed at least one act of harassment against someone else at school. The pervasiveness of peer-to-peer harassment and this study’s finding about students who are both victims and perpetrators raises new issues about why students harass and how to effectively combat harassment among students. Additional research is needed in this area.
The U.S. Supreme Court has made it clear that Title IX applies to sexual harassment. Guidelines released by the U.S. Department of Education’s Office for Civil Rights (OCR) in March of 1997 are meant to clarify schools’ responsibilities in preventing it and resolving allegations of sexual harassment once they arise.12 The OCR guidelines are accessible on the Internet (www.ed.gov/offices/OCR).
Sexual harassment in schools is a symptom of ongoing gender bias. Parents, teachers, administrators, and students all need to work together to eliminate this form of discrimination in the classroom and in the hallways. Implementing a clear policy against sexual harassment is key to preventing incidents. Further, expectations for gender equitable education enable students, educators, and administrators to recognize bias and harassment. It all begins with awareness of the issue. Following are suggestions for students and staff to help increase awareness:
National Women’s Law Center
OCR’s Sexual Harassment Guidance
Clearly, sexual harassment has provoked both overreaction and underreaction by educators. The guidance draws on the OCR’s expertise in investigating harassment complaints. While acknowledging the complexity of sexual harassment, the guidance urges institutions to use their judgment and common sense to avoid violating Title IX.
The foundation of the guidance is a unanimous Supreme Court decision in 1992, in Franklin v. Gwinnett County Public Schools, that held that Title IX bars sexual harassment and allows victims to recover damages from institutions that violate the statute. Later conflicting court rulings on other issues, however, have complicated institutions’ efforts to design anti-harassment policies to comply with Franklin.
The OCR’s guidance provides a solid foundation for analyzing claims of sexual harassment, sorting through these conflicting legal decisions, and establishing sound principles. For example, the guidance notes that Title IX covers student harassment of other students—not just employees’ harassment of students. On this issue, the guidance generally applies well-established principles developed in litigation on sexual harassment in the workplace to make clear what kind of conduct violates Title IX’s prohibition against sex discrimination. The guidance, however, acknowledges that differences between work and educational settings may justify some departure from the workplace standards.
* The continuum of behavior covered by sexual harassment includes rape, a criminal activity. Therefore, a student in those circumstances could press legal charges against the harasser and/or file a complaint with school officials.
Sexual Harassment in the School Setting
Sexual harassment is more than a peck on the cheek. Sporadic and trivial incidents of objectionable behavior simply are not sexual harassment. Labeling or treating them as such does a disservice to the many students harmed by degrading and offensive sexual conduct. Real sexual harassment encompasses a wide range of conduct that can be classified in two categories: quid pro quo (in Latin, meaning literally, "this for that") and hostile environment harassment. Title IX bars both types, which may occur simultaneously.
In quid pro quo situations, a person in authority links some aspect of a student’s education to the student’s response to sexual overtures. The classic example is a professor who demands sex for an "A" in his course, but quid pro quo harassment may include more subtle threats or promises.
Hostile environment harassment does not necessarily involve sexual blackmail (although it may), and its perpetrators may be college employees, students, or other people on a campus. The guidance defines this type of harassment as unwelcome verbal or physical conduct that is sufficiently severe, pervasive, or persistent to create an abusive or hostile environment from the perspective of the affected student and a reasonable person in that student’s shoes. The more severe an incident is, the less frequent it must be to meet this standard. For particularly severe and egregious conduct, such as sexual assault, once is enough. Less severe conduct, such as abusive language, must occur frequent-ly to create a sexually hostile environment.
Schools cannot ignore sexual harassment of students by other students. Stereotypes about the way in which men and women, boys and girls interact will no longer suffice. Drawing on Congress’s intent that students be able to learn in an environment free from all forms of sex discrimination, including sexual harassment, the guidance makes clear that schools cannot allow behavior that creates a hostile environment and prevents a student from learning or participating in school activities. This conclusion is consistent with the workplace standards that protect employees on the job, standards applied by various federal courts to education cases.
Title IX Requirements
Title IX does not ban flirtation. The guidance makes clear that "unwelcomeness" is a key component in defining sexual harassment among students and, at the postsecondary level, in employee-student relationships. Sexual overtures from one student to another, or from an employee to a college student, are not sexual harassment if the advances are welcome. The guidance acknowledges that consensual sexual relations between students and employees of postsecondary institutions are possible.
In handling disputes about whether harassment occurred or whether the sexual conduct was welcome, institutions should consider "the totality of the circumstances." These include the degree of influence the employee has over the student, the student’s ability to consent (a student’s age or certain types of disabilities might affect this), statements by any witnesses about the alleged harassment, and the relative credibility of the people involved (have other complaints been filed against the alleged harasser, or has the complainant made false accusations against others in the past?).
Title IX does not suppress academic discourse, even if it is offensive. Classroom discussion of ideas that some students find distasteful or embarrassing does not constitute sexual harassment. Indeed, at public institutions, the First Amendment protects such discussions when they are consistent with the educational mission. For example, the guidance noted, it would not violate Title IX if a creative writing professor’s required reading list included excerpts from literary classics that contained explicit descriptions of sexual conduct, including "scenes that depict women in submissive and demeaning roles." If students’ essays, read aloud in this professor’s class, contained sexually derogatory themes about women, this academic discourse also would not be considered in violation of Title IX. In contrast, a pattern of derogatory language targeting women in a class would create a hostile environment and would not be protected speech.
Responding to Sexual Harassment
Despite the complexities of making determinations in some cases, it is clear that inaction is the wrong answer. The guidance states that refusing to address persistent or serious sexual harassment will land institutions in trouble. They must take prompt and appropriate corrective action, whether the harasser is a college employee, a fellow student, or anyone else on the campus, such as a member of a visiting football team.
Foremost in determining a response should be the severity and nature of the harassment. The punishment must fit the crime. Waiting until graduation to enforce disciplinary action against a student who raped another student would not meet this test. Institutions also must ensure that their response does not penalize the victim—for example by rearranging the victim’s schedule or living arrangement to limit contact with the harasser, instead of modifying those of the harasser. Depending on the type of allegations, institutions also may need to take interim measures to protect a complaining student pending the outcome of an investigation.
Guidance Promotes Common Sense
Procedures that are fair to all parties involved are critical to the integrity of any sexual harassment investigation. Title IX requires all institutions to implement prompt and equitable procedures to address sex discrimination, and public institutions must also comply with the due process clause of the U.S. Constitution in disciplining students and teachers. The guidance makes clear that due process does not mean tilting the scales in favor of the accused by limiting the complainant’s access to evidence or legal representation.
Several other lessons can be drawn from the guidance. Paramount among them is that institutions should exercise common sense in handling incidents of sexual harassment. Although Title IX does not require institutions to adopt policies specifically prohibiting sexual harassment or to set up grievance procedures for handling complaints of sexual harassment, the guidance makes clear that doing so will help institutions convey to both employees and students what conduct is prohibited and how violations will be addressed. Institutions should train employees in how to identify and report sexual harassment to designated officials who can then take appropriate corrective action. Failure to do so places institutions at risk of legal liability.
While no policy statement can address every set of facts that will arise at institutions, the guidance clarifies some overarching principles and gives educators the specifics they need to deal with sexual harassment, and in the process, to create the learning environment Title IX’s framers envisioned for our daughters and sons.
This article is adapted from "Guide to Fighting Sexual Harassment," which appeared in the April 18, 1997, issue of the Chronicle of Higher Education.
National Association for Women in Education
Sexual harassment is a public problem which requires institutions to develop public strategies to address it. However, individuals often need an array of personal strategies to use when sexual harassment strikes. Here are some actions that individuals can take when faced with sexual overtures, sexist remarks, sexual jokes, etc. Not everyone will be comfortable with all of these responses nor are all appropriate for every situation.
This article is excerpted from a longer version that appeared in the Fall 1997 issue of About Women on Campus, the newsletter of the National Association for Women in Education.
American Association of University Professors
Virtually unknown, and thus widely overlooked, is the requirement that a college or university must designate an individual to coordinate its compliance with Title IX. The coordinator bears responsibilities that include "investigation of any complaint" alleging gender discrimination [including sexual harassment]. Under federal regulations the institution "shall notify all its students and employees of the name, office address, and telephone number of the employee or employees appointed pursuant to this paragraph" (34 C.F.R. § 106.8(a)). Does your institution have a Title IX coordinator? Have you been notified about how to contact that individual?
Informal reports suggest that many institutions have failed to designate Title IX coordinators. Some have coordinators but have not publicized their names. On rare occasions, an administration may even designate a coordinator but neglect to notify that individual about the assignment. From a legal standpoint these situations all contravene federal requirements. From a practical standpoint, they are regrettable in light of the continuing discrimination problems in the academy. The Department of Education has authority to cut off federal funds to institutions that violate Title IX. Realistically, though, the department would be unlikely to impose that penalty for failure to name a Title IX coordinator.
It is lamentable that, 25 years after the enactment of Title IX, the simple requirement of naming a coordinator is so widely overlooked. The department reminded institutions about this obligation in its March 13, 1997, "Sexual Harassment Guidance" concerning sexual harassment of students. The guidance includes a passage on Title IX coordinators that raises several issues beyond the basic requirements. One is the possibility that the coordinator might herself or himself be implicated in a discrimination allegation. To anticipate this problem, a college or university may choose to designate more than one individual. Another issue is the potential usefulness of tracking complaints so that recurrent problems can be identified. On this point the guidance suggests the utility of having one overall coordinator, so that multiple complaints against a student or employee might be flagged. A final issue, perhaps most important, is the need to train Title IX coordinators on matters such as the definition of sexual harassment and the operation of the institution’s internal procedures.
The National Coalition for Sex Equity in Education recently published an article calling for increased support for Title IX coordinators. Too often the coordinators have other primary assignments and devote little attention to gender discrimination problems. Better institutional support and recognition, more training, and networking among coordinators would serve to enhance their effectiveness. The authors suggest steps that the U.S. Department of Education might take. These include creating an advisory group on Title IX coordinators, developing and sharing lists of Title IX coordinators, conducting surveys, and sponsoring national and regional conferences. A new name, Title IX Gender Equity Coordinators, might also be helpful in promoting understanding of their role.
Readers concerned about gender discrimination in the academy can take several simple actions. Find out if your institution has a Title IX coordinator. If not, ask that one be appointed. Make sure that information on how to contact the individual is widely distributed. Call the coordinator, discuss the person’s responsibilities, and ask whether appropriate resources are provided. Invite the coordinator to meet with the American Association of University Professors’ (AAUP) chapter, the faculty senate, or other groups. Explore whether the coordinator is fully conversant with institutional policy and procedures on discrimination and harassment. The individual would, ideally, also be familiar with AAUP’s policies on these subjects.
Further information is available from the Department of Education Customer Service Team at 800-421-3481 or from the web site (www.ed.gov/offices/OCR).
This article appeared in the journal of the American Association of University Professors, Academe, (March- April 1997, vol. 83).
NOW Legal Defense and Education Fund
Supreme Court Decisions
The Supreme Court decided its first Title IX school sexual harassment case in 1992. That case, Franklin v. Gwinnett County Public Schools, involved sexual harassment of a high school student by a teacher.2 The Court recognized that private individuals bringing Title IX suits could sue schools for monetary damages. Since Franklin, Title IX sexual harassment litigation has burgeoned. In a 1993 case jointly litigated by NOW Legal Defense and Education Fund and Equal Rights Advocates, Doe v. Petaluma City School District, a federal court issued a landmark ruling recognizing that Title IX prohibits student-to-student sexual harassment.3 In March 1997 the federal agency that enforces Title IX, the U.S. Department of Education’s Office for Civil Rights (OCR), issued a policy guidance describing schools’ potential liability for sexual harassment of students. The OCR guidance confirmed schools’ responsibility for preventing and remedying sexual harassment.4
While Franklin clarified that harassed students could sue schools for money damages under Title IX, it did not decide when and how schools will be held liable. In June 1998, the Supreme Court addressed that question in Gebser v. Lago Vista Independent School District.5 Like Franklin, Gebser involved sexual harassment of a student by a teacher.
In a deeply split 5 to 4 ruling, the Court held that school districts are liable for money damages under Title IX only when a school official with authority to take corrective measures has actual knowledge of the harassment, and has acted with deliberate indifference.6 Applying that standard to the facts, the Court rejected Gebser’s Title IX claim. Even though the principal had received complaints about the teacher making inappropriate remarks in the classroom, the Court concluded that those complaints did not put the school district on notice of the teacher’s sexual harassment of Gebser.
The Court also found that the school district’s failure to have a grievance procedure or formal anti-harassment policy, in violation of the Title IX regulations, did not, in and of itself, establish liability. Nonetheless, the Court emphasized that the Department of Education can enforce Title IX administratively, and made clear that schools are required to take corrective action once they know about sexual harassment. The Court also recognized that students who are sexually harassed by teachers suffer "extraordinary harm" and that the teacher’s conduct "undermines the basic purposes of the educational system."
Gebser marks a sea change in Title IX liability standards, at least for cases in which plaintiffs seek money damages. Before Gebser, many courts held schools liable for incidents of sexual harassment by a teacher without asking whether a high level official knew about the harassment or failed to act. Importantly, Gebser does not reach claims for injunctive relief, where, for instance, a plaintiff is seeking better sexual harassment policies or training, or asking for any other kind of non-monetary relief. Gebser also does not affect other types of legal claims, such as claims brought against individual harassers under 42 U.S.C. § 1983, or claims against school districts or individuals under state tort law or education laws.
Gebser’s effect will be determined as lower courts around the country apply the new guidelines in the Court’s opinion. Clearly, the new liability standard puts the onus on students and parents to complain, thus ensuring that school districts have "actual notice" of harassment. Actual notice can be established through written or oral complaints to school officials witnessing the harassment, or observing other evidence of harassment, such as fliers about the incident.7 Students and parents must also be careful to notify school officials who have authority to take corrective action. Under Gebser, actual notice to school officials or employees who do not have such authority will not bind the school district.
Determining which school official should be notified of incidents of sexual harassment will differ from case to case. At a minimum, notifying Title IX coordinators, school board members, or school district superintendents should satisfy the standard, as should notifying school officials with direct authority over the harasser, such as principals or assistant principals. In cases of peer sexual harassment, a broader range of school officials should be deemed to have authority to take corrective action than in cases of teacher-student harassment. Arguably, any teacher or adult in the school community has the authority to discipline or reprimand a student who is sexually harassing another student. To be extremely cautious, however, parents, students, and advocates may wish to notify the Title IX coordinator, the principal, school board members, or the superintendent in all sexual harassment cases.
Under Gebser, once a school district knows about sexual harassment, it will be held liable if a school official with authority to take corrective action acted with deliberate indifference. While courts have not yet interpreted this standard, factors that may constitute deliberate indifference include: failure to appoint a Title IX coordinator, discouraging students or parents from complaining, actively disregarding known sexual harassment, or taking steps that are known to be ineffectual.
While litigation will never, on its own, solve a problem as deep-seated and multi-faceted as sexual harassment in schools, it hopefully will contribute to the solution by raising awareness of schools’ legal obligation to act. The bottom line is that students, parents, and schools share the same goal: preventing sexual harassment from happening. Schools can meet that goal by instituting effective anti-harassment policies and grievance procedures, conducting anti-harassment training, and sending a strong message that sexual harassment will not be tolerated.
The law in this area is rapidly developing. If you have a question about a Title IX sexual harassment case or would like to discuss strategies for bringing information about Title IX to your school district, please consult the list of resource organizations included in this issue of the Digest, or visit the Title IX room at the WEEA Equity Resource Center’s web site at www.edc.org/WomensEquity.
Sexual Harassment: Effective Policies for Prevention
The first step in preventing sexual harassment is developing an effective policy to combat it. Some key elements include:
National Coalition for Women and Girls in Education, Report Card on Gender Equity, (Washington, D.C.: National Women’s Law Center, 1997).F
The U.S. Supreme Court’s Gebser v. Lago Vista Decision: The Impact on Title IX
Statement by U.S. Secretary of Education Richard W. Riley
Excerpted from a U.S. Department of Education July 1,1998, press release. Full text is on the Internet (www.ed.gov/PressReleases/07-1998/lago.html).
The WEEA Digest is published by the WEEA Publishing Center, a project at Education Development Center, Inc., under contract with the U.S. Department of Education, Office of Educational Research and Improvement. Opinions expressed herein do not necessarily reflect the position of the U.S. Department of Education and no official endorsement should be inferred.
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