Title
IX and Sexual Harassment Contents:
Title IX and Sexual HarassmentBy Susan J. SmithEducation 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:
Sexual
Harassment Let the Punishment
By Verna Williams and Deborah L. Brake |
Organizations for Sexual Harassment Issues These organizations contributed to the development of this digest. For additional resource organizations, visit our web site (www.edc.org/WomensEquity). |
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American Association
of University Professors Center for Research
on Women |
National
Association for Women in Education 1350 Connecticut Avenue, NW, Suite 850 Washington, DC 20036-6511 (202) 833-3331 National women's
Law Center NOW Legal Defense
and Educaiton Fund |
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.
Bullyproof:
A Teacher's Guide on Teasing and Bullying for Use with Fourth and
Fifth Grade Students Sexual harassment in middle school starts with bullying behavior in the elementary school. Guidebook helps teach children to intervene to stop bullying behavior. By Nan Stein and Lisa Sjostrom (1996). Center for Research on Women, Publications Department, Wellesley College, 106 Central Street, Wellesley, MA 02181-8259; (781) 283-2510. Web: (www.wellesley.edu/WCW/infopub.html). Do the Right Thing: Understanding, Addressing, and Preventing Sexual Harassment in Schools and Righting the Wrongs:
A Legal Guide to Understanding, Addressing, and Preventing Sexual
Harassment in Schools Flirting or Hurting?
A Teacher's Guide on Student-to-Student Sexual Harassment in Schools
(Grades 6-12) Hostile Hallways:
The AAUW Survey on Sexual Harassment in America's Schools
IQ Sexual Harassment:
What's Going On? A Look at a Disturbing Trend Among Teens
|
Sexual
Harassment on Campus: A Guide for Adminstrators, Faculty, and Students
Addresses many issues that have received little attention such as student-to-student harassment, formal and informal resolution, and when and how to use mediation. Coedited by Bernice R. Sandler and Robert J. Shoop (1996). Allyn and Bacon, 160 Gould Street, Needham Heights, MA 02194; (781) 455-1250. Web: (www.abacon.com). Sexual Harassment
Guidance: Harassment of Students by School Employees, Other Students,
or Third Parties Sexual Harassment: Research and Resources Third Edition The expanded report of NCRW's Sexual Harassment Information Project summarizes the wealth of research and resources on sexual harassment, including current legal and scholarly interpretations, patterns of behavior of the harassed, myths about harassers, anti-harassment policies and procedures, and efforts needed to bring about significant change. The National Council for Research on Women (1995). The National Council for Research on Women, 11 Hanover Square, 20th Floor, New York, NY 10005; (212) 785-7335. Web: (www.ncrw.org). Title IX at 25:
Report Card on Gender Equity Tune in to Your
Rights: A Guide for Teenagers about Turning Off Sexual Harassment
|
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).
With the passage of Title IX,1 and increasing awareness of sexual harassment in general, sexual harassment in schools has gained recognition as a serious problem. A growing number of students and parents have pursued court action against school districts that fail to remedy sexual harassment.
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.
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
Statement by U.S. Secretary of Education Richard W. Riley
"While the decision [in Gebser v. Lago Vista Independent School District] limits the situations where litigants can obtain damages from a school district in a private Title IX lawsuit, it does not undermine the fact that sexual harassment discrimination violates Title IX. . . .
"When a school district learns of sexual harassment discrimination it must act immediately to end the harassment, eliminate the effects of the harassment on the victim and other students, and prevent the harassment from recurring. . . .
"The Supreme Court’s decision explicitly recognized that the Department can enforce administratively its Title IX regulation that requires schools and school systems to have well publicized policies against discrimination based on sex, including sexual harassment discrimination; to have effective and well-publicized procedures for students and their families to raise and resolve these issues; and to take prompt and effective action to equitably resolve sexual harassment complaints. . . .
"Schools owe students a safe environment that is conducive to learning and that affords children equal educational opportunity regardless of sex."
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).
Gender
Stereotypes: The Links to Violence
Provides practical solutions to the pervasive problems of sexual abuse and dating violence. Addresses the issues of stereotyping and gender expectations which compound adolescents’ vulnerability to violence. From the Equity in Education Series. (25 pp.) 1995•#2763•$4.00 Gendered Violence:
In Touch with Teens:
Sexual Harassment
and Teens |
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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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