Assessing the progress of the nation's schools in confronting sexual harassment is a challenge, since this form of sex discrimination first was recognized in the employment setting in 1976, fully 12 years after Congress enacted Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace, and four years after Title IX's enactment. Just as in the employment context, sexual harassment in school is a barrier of imposing proportions to girls and women trying to move ahead, affecting female students in educational institutions ranging from elementary schools to post–graduate schools.

The Supreme Court made clear in its unanimous 1992 decision in Franklin v. Gwinnett County Public Schools that Title IX prohibits this form of sex discrimination. Despite this clear statement, the pervasiveness of sexual harassment and the devastating impact it has on its victims and their ability to pursue an education remain constant. Simply put, sexual harassment remains a significant impediment to gender equity for girls and women across the board.

Looking Back. There are no benchmark data from the early 1970s regarding sexual harassment; however, the effort to combat and eradicate this barrier reaches back to just a few years after Title IX's enactment. In 1977, one year after the first district court decision recognizing sexual harassment in the workplace, a district court, in Alexander v. Yale University, identified such misconduct in colleges as a violation of Title IX. The court found that Title IX prohibits making educational benefits contingent upon sexual demands, a form of sexual harassment now known as 'quid pro quo.' Three years later, in 1980, the National Advisory Council on Women's Educational Programs recommended that OCR issue a federal policy on sexual harassment so that schools and colleges would understand their responsibility to stop or prevent sexual harassment. During the mid–1980s, two federal courts issued opinions in cases involving medical students, again recognizing sexual harassment as a violation of Title IX. In 1992, the Supreme Court ruled in Franklin, a case involving a high school student subjected to a sexually hostile environment created by a teacher, that Title IX prohibits sexual harassment. It also ruled that persons harmed when schools violate the statute may recover damages.

Sixteen years after the National Advisory Council on Women's Educational Programs made its recommendation, OCR issued a policy guidance on sexual harassment. This long–awaited policy fills an important need, outlining Title IX's requirements in this area and providing schools with much needed help in defining, addressing, and preventing sexual harassment. The guidance makes clear that inaction is never the right response to secual harassment and urges schools to adopt policies and procedures that help prevent such misconduct in the first instance.

Despite these significant advances, some recent court decisions threaten to limit students' protection from sexual harassment, harking back to the days when courts dismissed such 'personal' matter, which employers should not be expected to control. For example, one federal district court dismissed a Title IX claim of student–to–student sexual harassment in 1994, reasoning that student actions are not programs or activities for purposes of Title IX. In 1996 a federal appeals court ruled that schools can be liable for student–to–student sexual harassment only when they treat the complaints of boys differently than those of girls–– effectively advising schools to ignore complaints of all students. These courts opinions suggest that sexual harassment is just a fact of life that should be tolerated and not regulated or eradicated through the judicial system, an attitude long abandoned in the context of employment. These decisions ignore the scope of the problem and the impact harassment has on its victims' ability to receive an education.

The Scope of Sexual Harassment. Sexual harassment is widespread, affecting girls and boys, students in elementary through postsecondary schools. Originally, efforts to address secual harassment focused on students harassed by faculty. In recent years, additional focus has been placed on student–to–student harassment. Regardless of the form, research has shown sexual harassment to be a barrier to students across the board as they pursue educational opportunities.

According to a 1993 study by the American Association of University Women (AAUW) Educational Foundation, 81 percent of students surveyed in eighth through 11th grades had experienced some form of sexual harassment, with girls experiencing harassment at a slightly higher rate than boys––85 percent versus 76 percent, respectively. Similar results were reported most recently by a 1996 survey conducted by the USA Today/Weekend. AAUW found that sexual harassment had a stronger emotional impact on girls, causing many to lose interest in school and diminishing their academic performance.

Sexual harassment affects students of all ages. The AAUW Educational Foundation's study found African American girls experienced harassment even before they reach grade six. Other studies indicate that, at the college level, approximately 30 percent of undergraduates and 40 percent of graduate students had experienced some form of sexual harassment, with student–to–student sexual harassment the most common occurrence by far––about 90 percent of students reported experiencing this form of harassment. The breadth of the problem also is reflected in the increasing number of complaints filed at the Department of Education's Office for Civil Rights. In 1988, OCR received 28 sexual harassment complaints; by 1996, that number had increased to 152.

Inaction by Educational Institutions. 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, only 8 percent of the respondents to a study conducted in 1993 by the NOW Legal Defense and Education Fund and Wellesley College Center for Women reported that their school had and enforced a policy on sexual harassment. 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. Some schools have adopted policies, such as Framingham High School in Massachusetts, which enlists the support of all teachers to help students who have been harassed. However, far too many schools have not developed meaningful policies that are comprehensible and accessible to students and parents.

Title IX Enforcement. As useful as the newly released sexual harassment policy guidance is, it is no substitute for systemic and targeted enforcement on the part of OCR. Beyond issuing the guidance and addressing individual Title IX complaints in this area, OCR has not made use of its authority to conduct compliance reviews to ensure that educational institutions have policies in place and are addressing sexual harassment appropriately. In addition, OCR needs to make a greater effort to ensure that educational institutions are aware of the new policy and their obligations under Title IX. This important piece of the enforcement effort is critical to eradicating sexual harassment.

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