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Research Bulletin

Phi Delta Kappa Center for Evaluation, Development, and Research
May 1998, No. 20

The Law Governing Sexual Harassment in Public Schools
By Martha M. McCarthy

Allegations of sexual harassment have steadily increased since the 1980s, due to a combination of greater public awareness of such behavior and an increase in legal remedies available to victims. Indeed, there has been an explosion in litigation during the past three years. Charges of sexual harassment, especially in school settings, generate considerable public attention and involve high stakes for all parties. This Research Bulletin briefly summarizes litigation involving the major federal provisions that are used to challenge sexual harassment in public schools and provides a few suggestions for school leaders.

EMPLOYEES AS VICTIMS

Most claims initiated by employees alleging sexual harassment in the workplace have been litigated under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e). Among other things, Title VII prohibits public and private employers with fifteen or more employees from discriminating on the basis of gender in hiring, promotion, compensation, and other terms, conditions, and privileges of employment.(1) The Supreme Court has recognized two types of sexual harassment that are subject to Title VII suits.

In quid pro quo harassment (giving one valuable thing for another), employment benefits, such as salary raises, promotions, or possibly the job itself, are offered or withheld based on the employee's willingness to submit to unwelcome sexual advances. Quid pro quo harassment can be difficult to prove; the employer may assert that the sexual activity was consensual or that the employee suffered adverse employment consequences for legitimate reasons rather than for refusing sexual favors.

The second type of sexual harassment creates a hostile environment in that unwelcome verbal or physical conduct of a sexual nature is sufficiently severe or persistent to create an abusive work setting. In 1986 the Supreme Court held that the hostile environment does not have to result in economic or other tangible losses; Title VII also protects employees from psychological injury.(2) Subsequently, the Court ruled that such harassment need not result in a diagnosed psychological injury to be actionable under Title VII.(3) The Court stated that in determining whether an environment is sufficiently hostile to violate Title VII, such factors should be considered as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."(4)

Proof of intentional gender discrimination is not required to establish that an employer is guilty of unlawful sexual harassment under Title VII. If the employer is aware or should be aware of the harassing behavior and fails to take action, liability can be established. This Title VII standard is essentially grounded in negligence; evidence indicates that the employer should have known of the harassment but, because of negligence, perhaps did not know.

In addition to Title VII protections, employees have Fourteenth Amendment protections against sexual harassment. They have a liberty right to bodily security under the Due Process Clause and a right to be free from purposeful sex discrimination under the Equal Protection Clause. If a person acting on behalf of the state impairs rights protected by the U.S. Constitution or laws, the victim can seek damages under 42 U.S.C. § 1983. Section 1983 suits can be initiated against school districts as well as school authorities.(5) Controversy has surrounded the circumstances involving sexual harassment that would violate constitutionally protected rights and thus trigger § 1983 liability,(6) so victims of sexual harassment in employment have usually relied on Title VII.

STUDENTS AS VICTIMS

The law regarding sexual harassment of employees is far more settled than is the law governing sexual harassment of students.(7) Since students are not protected by Title VII, they have used constitutional grounds or Title IX of the Education Amendments of 1972 to challenge alleged sexual harassment.(8) Title IX, which is enforced by the Office for Civil Rights (OCR) in the Department of Education, specifically bars gender discrimination in educational institutions that receive federal funds (20 U.S.C. § 1681). OCR can terminate federal aid to institutions found in violation of Title IX, and individuals also can initiate private suits for relief.(9) The dramatic increase in cases involving allegations of sexual harassment of students by school employees since 1992 is attributed primarily to the Supreme Court's conclusion in Franklin v. Gwinnett County Public Schools that students can seek damages from school districts for Title IX violations.(10)

In 1997, a quarter of a century after passage of Title IX, OCR finalized detailed guidelines, specifying that school districts must have policies and procedures for responding to students' complaints of sexual harassment, including same-sex harassment.(11) The Sexual Harassment Guidance further stipulates that the Title VII framework should be applied in Title IX claims, and that both laws prohibit quid pro quo and hostile environment harassment. However, the Supreme Court has not clarified whether the OCR's interpretation reflects the intent of Title IX, and some lower courts have disagreed with the OCR. Thus, the circumstances that constitute a hostile environment in violation of Title IX and the judicial criteria that should be applied in making such a determination remain somewhat ambiguous.

Like employees, students also have Fourteenth Amendment protections against sexual harassment and can sue school districts and school authorities for damages under 42 U.S.C. § 1983 because of impairments of their federal constitutional or statutory rights. Section 1983 claims are not as likely to succeed as are Title IX suits against school districts, but § 1983 is the only federal grounds for students to sue individuals (i.e., school authorities) for alleged violations of their federal rights in connection with sexual harassment.

Employees As the Perpetrators. In the Franklin case mentioned previously,(12) a female student alleged that a high school teacher/coach initiated sexual conversations, inappropriately touched her, and subsequently had coercive intercourse with her on school grounds. She contended that school authorities violated Title IX because they were aware of the harassing behavior but took no action. The Supreme Court held that Congress did not intend to restrict the remedies available to individuals for Title IX violations, and thus students could seek monetary damages from school districts for gender discrimination in the form of sexual harassment by school employees. The Court in Franklin, however, left some unanswered questions. For example, the Court did not clarify if intentional gender discrimination must be established to substantiate a hostile environment in Title IX cases or whether the Title VII negligence standard should be applied. Since the plaintiff in Franklin alleged intentional discrimination, the Court did not have to resolve this issue. Even if intentional discrimination is a prerequisite to finding a Title IX violation, there remains ambiguity regarding what evidence can establish such unlawful motive.

Lower courts have offered a range of interpretations. For example, several federal appellate courts have held that proof of intentional gender discrimination by school authorities is not required to establish that a school employee's sexual harassment of a student creates a hostile environment.(13) These courts have held that to substantiate a Title IX violation, the plaintiff must establish that the harassment based on gender was so severe or pervasive that it altered conditions of education and created an abusive environment. Liability will be assessed with evidence that school authorities should have known about the harassment and failed to respond appropriately.

Other courts have reasoned that Title IX was enacted pursuant to congressional spending powers and that conditions placed on the receipt of federal funds must be explicit. They have required evidence of intentional discrimination to violate Title IX, rejecting use of the Title VII "should have known" standard. The Fifth Circuit Court of Appeals in a trilogy of recent decisions ruled that under Title IX schools can be held liable for an employee's harassment of a student only if a supervisor (i.e., a person with authority over employees and the power to take action to end the behavior) has actual knowledge of the harassment and fails to act.(14) The Eleventh Circuit Court of Appeals recently went further, reasoning that the supervisor with such knowledge who fails to act must be the school superintendent or school board.(15) Since the Supreme Court has agreed to review one of the Fifth Circuit rulings, perhaps the Court will clarify to whom notice must be given to implicate Title IX and what standard should be applied to determine school district liability.

Whereas in the employment context, sexual behavior must be "unwelcome" to violate Title VII, this may not be necessary to abridge Title IX where school employees are the perpetrators. The OCR and some courts have taken the position that a sexual relationship between a school employee and minor cannot be considered consensual, as there is some element of coercion by the adult no matter how willing the child appears to be.(16) The Seventh Circuit Court of Appeals recently held that sexual advances by an adult school employee toward a thirteen-year-old student could never be considered welcome.(17)

Federal courts have been more consistent regarding the criteria to apply in assessing sexual harassment claims under the Federal Constitution than they have in Title IX suits. Although courts have recognized that students have a constitutional right to bodily integrity,(18) harassment victims carry a heavy burden of proof in establishing that a person acting on behalf of the state has violated their rights, which would entitle them to damages under § 1983. In a number of cases courts have rejected allegations of constitutional violations because sufficient state action was not established. Most courts have concluded that compulsory attendance laws do not create a custodial relationship in public schools that obligates school authorities to protect students from private actors, and they have not attributed the actions of individual teachers or staff members to the school district.(19) Courts have held that school boards must have notice of a pattern of persistent abuse by the employees and give tacit approval of the unconstitutional conduct or exhibit deliberate indifference to the conduct to establish the required causal link between the official policy of inaction and the harassment.

Some plaintiffs have asserted that sexual harassment has been caused in part by school districts' failure to screen or train employees appropriately.(20) The Supreme Court in 1997 recognized that municipal authorities can be liable under § 1983 if a hiring decision "reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision."(21) But the Court cautioned that the inadequate review of the employee's record in making the hiring decision would have to be directly linked to the subsequent violation of federally protected rights. The Supreme Court also has recognized that for governmental agencies to be held liable for failure to train employees, it must be established that one could predict the deprivation of constitutional rights from the deficiency in training, which is very difficult to prove.(22)

It is not impossible, however, to substantiate a constitutional violation in connection with sexual harassment of students. The Fifth Circuit Court of Appeals in 1994 held that school authorities can be liable under certain circumstances for supervisory failures resulting in molestation of a schoolchild.(23) In this case a teacher sexually abused a child, and the suit alleged that the principal and superintendent were aware of the abuse and failed to take appropriate action. The court awarded immunity to the superintendent, who had taken suitable steps upon notice of the abusive behavior, but denied immunity to the principal, who had not acted to stop the harassment even though he had ample notice of the school employee's inappropriate behavior.

Peers As Perpetrators. The most controversial type of sexual harassment from a legal perspective involves student-to-student or peer harassment. The American Association of University Women estimated in 1993 that four-fifths of American public school students had been victims of peer harassment.(24) The OCR guidelines interpret Title IX as imposing liability on school districts if school authorities were aware or should have been aware of the hostile environment caused by peer sexual harassment and failed to take prompt and appropriate action.(25) However, in 1997 the Eleventh Circuit Court of Appeals ruled that when a Georgia school board accepted federal funds, it was not placed on notice that it could be held liable for failing to take sufficient measures to prevent a student from sexually harassing a classmate.(26) Rejecting the use of Title VII's "knew or should have known" standard in Title IX cases, the court held that school authorities would have to bear direct responsibility for intentional gender discrimination to abridge Title IX. Yet, courts have reasoned that deliberate inaction in connection with peer harassment can constitute such unlawful intent.(27)

In 1996 the Fifth Circuit Court of Appeals held that no power relationship exists among peers, and thus, "unwanted sexual advances of fellow students do not carry the same coercive effect or abuse of power as those made by a teacher, employer or coworker."(28) According to this court, students must prove that the school district selected a particular course of action in responding to a sexual harassment complaint at least in part because of the complainant's gender. Given that differential treatment of one gender is required under this standard, it might appear that school authorities could reduce their legal vulnerability by turning a blind eye equally to harassment of female and male students.

A few courts, however, have voiced approval of applying the Title VII negligence standard in Title IX peer harassment cases, indicating that schools can be liable if personnel knew or should have known about the peer sexual harassment and did not take appropriate action.(29) For example, the Ninth Circuit Court of Appeals recently used the Title VII framework in finding a valid Title IX claim against a school district because of the inaction of school officials in supervisory positions who had notice of harassment and discrimination against a student by classmates and a student teacher.(30) The court also denied immunity under § 1983 to the supervisory personnel who allegedly abridged Title IX rights by their failure to respond.

Although most peer harassment claims initiated under the Fourteenth Amendment Due Process Clause have not been successful, with courts finding no evidence of a school policy or practice exacerbating the harassment,(31) two federal appellate courts recently have allowed peer sexual harassment claims to proceed under the Equal Protection Clause. In one case, a student had been harassed verbally and physically for several years by classmates because he was a homosexual, and school administrators allegedly turned a deaf ear to his requests for protection.(32) Recognizing that the student must show that the defendant school administrators acted either intentionally or with deliberate indifference to establish an equal protection violation actionable under § 1983, the Seventh Circuit Court of Appeals concluded that one or both of these conditions would likely be satisfied when the lower court reconsiders the case on remand. In the second case, the Ninth Circuit Court of Appeals recognized that a custodial relationship is not necessary to substantiate an equal protection impairment (like it is in due process claims).(33) Accordingly, the court concluded that school authorities who allegedly knew that a student teacher and peers inappropriately touched students were not entitled to immunity for the equal protection violation. The court also denied immunity under § 1983 to school officials who allegedly abridged Title IX rights by failing to respond to the harassment complaints. Noting that the supervisor was aware of specific risks of harm, the court recognized that complete inaction in the face of a claim of harassment cannot be considered reasonable conduct.

Courts have moved even more cautiously in peer harassment cases than in cases involving employee-to-student harassment. Nonetheless, recent decisions allowing Title IX claims to proceed against school districts and § 1983 claims against school authorities for Title IX violations should put school personnel on notice that peer harassment can no longer be dismissed by the notion that "kids will be kids."

SUGGESTIONS FOR SCHOOL LEADERS

Sexual harassment will not be tolerated in American public schools, particularly when employees are the perpetrators, and public concern about this topic is unlikely to dissipate. The legal standards to use in assessing harassment claims are continually evolving, and many uncertainties remain, such as how much fault must be established and by whom. Nonetheless, courts seem increasingly willing to award damages to harassment victims under Title VII and Title IX and under § 1983 if sufficient state action is established.

Regardless of legal liability that might result, school personnel should make every effort to curb sexual harassment in our schools. Some of these steps currently are legally required, whereas others make sense to maintain an appropriate educational environment. All school districts must have clear sexual harassment policies that provide grievance procedures for employees and students. These procedures must identify the persons responsible for coordinating Title VII and Title IX compliance. The policies should include at least two avenues for reporting allegations of harassment in the event that one avenue includes the alleged perpetrator. Employee and student handbooks should clearly define sexual harassment and describe the employment sanctions and student disciplinary action that will be taken against those who engage in sexual harassment. All employees, students, and parents should receive copies of the school's sexual harassment policies.

School authorities also should educate all staff members and students regarding what sexual harassment is, what harmful effects it has, how it can be avoided, and how to identify signs that harassment is taking place. An essential step is to provide inservice sessions for staff members and assemblies for students that focus on this topic. One strategy to engage staff members in a discussion of appropriate versus inappropriate behavior is to ask them whether they would be comfortable with certain actions and expression toward coworkers or students in the presence of their spouses and children and whether they would mind if their own family members were the targets of such actions and expression. Similarly, students can be asked whether they would be comfortable with the behavior in front of their parents or would want their siblings subjected to it. These discussions should provide useful guidance for individuals in assessing their own conduct and becoming more sensitive regarding behavior that others might find offensive.

Public school districts are not often accused of actually inflicting sexual harassment or of encouraging it, but they are being accused with increasing frequency of being indifferent toward such behavior. Any accusations of harassment should be promptly investigated, with corrective measures taken in a timely fashion. Educational programs and other prevention strategies are the best tools to eliminate sexual harassment in our schools.

ENDNOTES

1. On March 4, 1998, the Supreme Court ruled that same-sex harassment is actionable under Title VII, thus resolving the conflict among lower courts on this issue. Oncale v. Sundowner Offshore Servs., 1998 U.S. LEXIS 1599.

2. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

3. Harris v. Forklift Systems, 510 U.S. 17, 21 (1993).

4. Id. at 23.

5. Under 42 U.S.C. § 1983, the term "person" has been broadly defined to include school districts as well as individuals acting on behalf of the districts. See Monell v. Department of Social Servs. of City of New York, 436 U.S. 658 (1978). Whereas school authorities may be shielded from § 1983 liability by qualified immunity for actions taken in good faith, this defense is not available to school districts or other political subdivisions. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Gomez v. Toledo, 446 U.S. 635 (1980).

6. See, e.g., Braddy v. Florida Dep't of Labor and Employ. Security, 133 F.3d 797 (11th Cir. 1998); Bonenberger v. Plymouth Township, 132 F.3d 20 (3d Cir. 1997); Ierardi v. Sisco, 119 F.3d 183 (2d Cir. 1997).

7. For a more detailed discussion of sexual harassment litigation involving students, see Martha McCarthy, "Students as Victims of Sexual Harassment: The Evolving Law," Journal of Law and Education, in press.

8. In a few cases students also have asserted that privacy rights protected by the Fourth, Fifth, and Fourteenth Amendments have been abridged by sexual harassment in public schools. Victims also can bring suit under state tort law, and in some instances, perpetrators can be charged with child abuse or statutory rape.

9. Cannon v. University of Chicago, 441 U.S. 677 (1979).

10. 503 U.S. 60 (1992).

11. Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, and Third Parties, 62 Fed. Reg. 12,034 (1997).

12. 503 U.S. 60 (1992).

13. See, e.g., Oona R.- S.- v. McCaffrey, 122 F.3d 1207 (9th Cir. 1997); Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996); Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir. 1995).

14. Doe v. Lago Vista Indep. Sch. Dist., 106 F.3d 1223 (5th Cir. 1997), cert. granted, 118 S. Ct. 595 (1997); Canutillo Independent School District v. Leija, 101 F.3d 393 (5th Cir. 1996), cert. denied, 117 S. Ct. 2434 (1997); Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648 (5th Cir. 1997).

15. Floyd v. Waiters, 133 F.3d 786 (11th Cir. 1998).

16. See Sexual Harassment Guidance, 62 Fed. Reg. 12,034, 12,040 (1997); Bolon v. Rolla Pub. Schs., 917 F. Supp. 1423, 1429 (E.D. Mo. 1996).

17. Mary M. v. North Lawrence Community Sch. Corp., 131 F.3d 1220 (7th Cir. 1997).

18. See, e.g., Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990).

19. See, e.g., Floyd v. Waiters, 133 F.3d 786 (11th Cir. 1998); Plumeau v. School Dist. #40 County of Yamhill, 130 F.3d 432 (9th Cir. 1997); Becerra v. Asher, 105 F.3d 1042 (5th Cir. 1997), cert. denied, 118 S. Ct. 82 (1997); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412 (5th Cir. 1997). Although the Supreme Court has not rendered a decision involving public schools, in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989), it held that the Due Process Clause does not require a social service agency to protect its citizens' liberty interests against invasions by private actors, absent some type of custodial relationship.

20. See, e.g., Seamons v. Snow, 864 F. Supp. 1111, 1122 (D. Utah 1994), aff'd in part, rev'd and remanded in part, 84 F.3d 1226 (10th Cir. 1996); Black v. Indiana Area Sch. Dist., 1991 WL 477699 (W.D. Penn. 1991).

21. Board of County Comm'rs of Bryan County v. Brown, 117 S. Ct. 1382, 1391-1392 (1997).

22. Canton v. Harris, 489 U.S. 378 (1989).

23. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994), cert. denied, 513 U.S. 815 (1994).

24. American Association of University Women Educational Foundation, Hostile Hallways: The AAUW Survey on Sexual Harassment in America's Schools (1993).

25. 62 Fed. Reg. 12039-12040 (1997). OCR treats student-to-student and employee-to-student harassment similarly in terms of school district liability.

26. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (11th Cir. 1997). The Supreme Court has been asked to review this decision.

27. See, e.g., Burrow v. Postville Community Sch. Dist., 929 F. Supp. 1193 (N.D. Iowa 1996); Wright v. Mason City Community Sch. Dist., 940 F. Supp. 1412 (N.D. Iowa 1996); Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006 (W.D. Mo. 1995).

28. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1011 (5th Cir. 1996), cert. denied, 117 S. Ct. 165 (1996). See also Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996) (finding no gender discrimination in male football players harassing a former teammate).

29. See, e.g., Doe v. Petaluma City Sch. Dist., 949 F. Supp. 1415 (N.D. Cal. 1996); Nicole M. v. Martinez Unified Sch. Dist., 964 F. Supp. 1369 (N.D. Cal. 1997); Collier v. William Penn Sch. Dist., 956 F. Supp. 1209 (E.D. Pa. 1997).

30. Oona, R.-S.- v. McCaffrey, 122 F.3d 1207 (9th Cir. 1997).

31. See, e.g., Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993); D.R. v. Middle Bucks Area Voc'l Tech'l Sch., 972 F.2d 1364 (3d Cir. 1992), cert. denied, 506 U.S. 1079 (1993). These courts have reasoned that assaultive school children are not acting as agents of the state, so deliberate acts of school authorities would be required to establish a constitutional violation.

32. Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996). The school district subsequently agreed to pay more than $900,000 in damages to the victim. Mark Walsh, Law Update, Education Week, 15 January 1997, p. 9.

33. Oona R.- S.- v. McCaffrey, 122 F.3d 1207 (9th Cir. 1997).