William Kritsonis, School Law, Ch 10 Sexual Harassment

1
Sexual HarassmentTeacher v. Student

• William Allan Kritsonis, PhD

2
What is Sexual Harassment

• Sexual harassment is a serious problem for
  students at all educational levels. Students in
  elementary and secondary schools, as well as
  vocational schools, apprenticeship programs,
  colleges and universities can be victims of
  sexual harassment. It is different from flirting,
  playing around, or other types of behavior that
  you enjoy or welcome.

3

• Sexual harassment can be requests for sexual
  favors or unwelcome sexual behavior that is bad
  enough or happens often enough to make you feel
  uncomfortable, scared or confused. It may
  interfere with your schoolwork or your ability to
  participate in extracurricular activities or
  attend classes. Sexual harassment can happen to
  girls and boys.

4

• Sexual harassment can be
• verbal (comments about your body, spreading
  sexual rumors, sexual remarks or accusations,
  dirty jokes or stories)
• physical (grabbing, rubbing, flashing or mooning,
  touching, pinching in a sexual way, sexual
  assault)
• visual (display of naked pictures or
• sex-related objects, obscene gestures)
  Sexual harassment can happen to girls and boys.

5
Two Kinds of Sexual Harassment

• There are two kinds of sexual harassment
• quid pro quo
• hostile environment

6
Quid Pro Quo

• Quid pro quo sexual harassment occurs when a
  teacher offers you a better grade or treats you
  better if you do something sexual. It could also
  be a threat to lower your grade or treat you
  worse than other students if you refuse to go
  along with a request for a sexual favor.

7
Hostile environment

• Hostile environment sexual harassment occurs when
  unwanted sexual touching, comments, and/or
  gestures are so bad or occur so often that it
  interferes with your schoolwork, makes you feel
  uncomfortable or unsafe at school, or prevents
  you from participating in or benefiting from a
  school program or activity. This type of
  harassment does not have to involve a threat or
  promise of benefit in exchange for a sexual
  favor.

8
Sexual Harassment is Against the Law

• The federal law prohibiting sexual harassment in
  schools is Title IX of the Education Amendments
  of 1972 (Title IX), which prohibits any person,
  on the basis of sex, to be subjected to
  discrimination in an educational program or
  activity receiving federal financial assistance.
  Also, it is illegal to intimidate, threaten, or
  coerce a person who has taken action under Title
  IX.

9
Landmark Cases

• Doe v. Taylor ISD, 1994
• Franklin v. Gwinnett County Public Schools, 1992
• Gonzalez v Ysleta ISD, 1993
• Rabe v Lewisville ISD, 1994
• Molina v Pasadena ISD, 1989
• Gebser v Lago Vista ISD

10
Doe v. Taylor ISD, 1994

• The case was based on a sexual relationship
  between a teacher/coach and a minor student.
  Rather than seeking redress under state law for
  assault or negligence of some sort, the student
  alleged that her constitutional rights had been
  violated. The student alleged that the
  Constitution protects her from physical sexual
  abuse at the hands of her teachers. The Fifth
  Circuit agreed, thus opening the door to
  potential liability.

11
Franklin v. Gwinnett County Public Schools, 1992

• In this case, petitioner Franklin, a student in a
  high school alleged that she had been subjected
  to continual sexual harassment and abused by a
  teacher, Andrew Hill. After the complaint was
  filed, Mr. Hill resigned on the condition that
  all matters pending against him would be dropped,
  and the school would close its investigation.
  The District Court subsequently dismissed the
  complaint on the ground that Title IX does not
  authorize an award damages, he the Court of
  Appeals affirmed.

12
Gonzalez v Ysleta ISD, 1993

• In this case doing nothing could lead to an
  accusation of deliberate indifference, which
  could lead to liability. An Ysleta ISD teacher
  was accused of sexually molesting a first grader.
  School officials had conducted an investigation
  after two previous reports of the teachers
  improper contact with students, such as letting
  them sit on his lap and putting his arm around
  their waists. Following the investigation, the
  school board decided to transfer the teacher to a
  different school rather than terminating the
  teacher, as was customary in the district when
  instances of child abuse arose. The molestation
  continued after the transfer. The parents of the
  student sued the school district in federal
  court, alleging that by not terminating the
  teacher, the district was deliberately
  indifferent to the students welfare.

13
Gebser v Lago Vista ISD

• School districts cheered when the Supreme Court
  held in Gebser v Lago Vista ISD that school
  officials are not responsible for a teacher's
  sexual harassment of a student unless they
  actually knew of the behavior and purposely
  looked the other way. In Gebser, Alida Gebser, a
  high school student, sued her school district for
  sexual harassment based upon the illicit actions
  of her teacher, Frank Waldrup. Waldrup instigated
  sexual relations with Gebser, coupled with
  suggestive comments in the classroom, when she
  was 14 years old and continued this behavior
  until discovered by the police approximately 1½
  years later.

14
Gebser v Lago Vista ISD continued

• Gebser had not reported the relationship to
  school officials, testifying that she was unsure
  what to do and didn't want to lose Waldrop as a
  teacher however, other parents had complained to
  the principal about Waldrop's use of
  inappropriate comments in class. Gebser's suit
  claimed that under Title IX the school district
  was vicariously liable for Waldrup's illicit
  behavior. In a 5-4 decision, the Supreme Court
  held that liability under Title IX does not
  extend to a school district unless an official
  "who at a minimum has authority to institute
  corrective measures on the district's behalf has
  actual notice of, and is deliberately indifferent
  to, the teacher's misconduct."

15
Rabe v Lewisville ISD, 1994 Molina v Pasadena
ISD, 1989

• A teacher with a continuing contract was writing
  a student notes, going over her house when her
  parents were not home, and kissing her on the
  lips constituted good cause for termination on
  grounds of immorality in the case of Rabe v
  Lewisville ISD, 1994. Even if the student
  consents to the relationship, grounds for
  termination may be established. As noted in the
  Molina v Pasadena ISD, 1989 decision, Even if
  the student were an adult, the fact that a
  student was as student is the controlling point.
  It is this status and this relationship that
  constitutes immoral conduct.

16
Common sense rules to prevent false claims

• Try not to be alone with students particularly in
  isolated locations.
• Avoid physical contact with student which could
  be misunderstood as sexual in nature.
• Avoid any written communications with students
  which could be misconstrued as personal or
  romantic.
• Avoid off-the cuff comments on students physical
  appearance or discussing personal topics which
  could be construed as sexual.
• If a student confides in you regarding a personal
  topic of sexual nature, either invite another
  adult to join the conversation or report in
  writing immediately.

17
Resources

• Code of Ethics and Standard Practices for Texas
  Educators website www.sbec.state.tx.us
• Equal Rights Advocates Sexual Harassment at
  School Know Your Rights website
  http//www.equalrights.org/ublications/kyr/shchool
  .asp
• FindLaw website http//caselaw.findlaw.com
• Sexual Harassment and Students website
  http//cmswashingtonea.org/wea/PUBLICAT/LEGAL/SEXH
  AR5.HTM
• Walsh, J., Kemerer, F., and Maniotis, L. (2005).
  The Educators Guide to Texas School Law.
  University of Texas Press, 6th Edition.