William Kritsonis, School Law, Ch 10 Harasssment

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Sexual Harassment of Students by School Employees

• William Allan Kritsonis, PhD

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Introduction

• Title IX of the Education Amendment of 1972 and
  The Department of Education implement regulations
  prohibiting sex discrimination.
• The Supreme Court, Congress, and the Federal
  executive departments recognize sexual harassment
  of students.
• The guidance focuses on a schools responsibility
  under Title IX and the Title IX regulations to
  address sexual harassment against students.

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Sexual Harassment

• Sexual harassment unwelcomed conduct of a
  sexual nature ie. Sexual advances, requests for
  sexual favors, verbal, non-verbal or physical
  contact of a sexual nature.
• Note sexual harassment of a student can deny or
  limit on the basis of sex, the students ability
  to participate or receive benefits.

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Application of Title IX

• Applies to all public and private schools.
• Protects male and female students against sex
  discrimination.
• Prohibits bullying by groups or individuals.
• Gender-based harassment and/or sexual harassment
  constitute a hostile environment.
• Assurance of compliance mandates.

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Determining the Schools Responsibility

• In assessing sexually harassing conduct, schools
  must consider the following
• Does the conduct deny or limit the students
  ability to participate or benefit from the
  program based on sex?
• If so, does the nature of the schools
  responsibility address that conduct of the
  harasser and the context in which the harassment
  occurred?

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Two Types of Sexual Harassment

• Quid Pro Quo harassment
• Hostile environment
• Note A hostile environment can occur even if
  the harassment is not targeted specifically at
  the individual complaintant.

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Welcomeness

• Statements by any witness to the alleged
  incident.
• Evidence about the relative credibility of the
  allegedly harassed student and the alleged
  harasser.
• Evidence that the alleged harasser has been
  found to have harassed others.
• Evidence of the allegedly harassed students
  reaction or behavior after the alleged
  harassment.
• Evidence about whether the student claiming
  harassment filed a complaint or took action to
  protest the conduct immediately after the
  occurrence.
• Other contemporaneous evidence.

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Harassment by Teachers

• Sexual harassment of a student by a teacher can
  be discrimination in violation of Title IX.
• The employer (teacher) is in violation of Title
  IX when he/she inappropriately use their
  position.
• The teacher or employer is also responsible for
  the ending and recurrence of the harassment.
• Ultimately, it is the schools obligation to take
  immediate action on the case.

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Grievance Procedures

• Schools and Universities are required by Title IX
  regulations to adopt and publish grievance
  procedures.
• When students or parents file a complaint.
• Schools should discuss confidentiality standards
  and concerns with the complainant initially.

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Due Process

• Public school employees have certain due process
  rights under the United States Constitution. The
  Family Educational Rights and Privacy Action
  (FERPA) does not override federally protected due
  process rights.

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Conclusions

• Title IX was designed to protect students from
  sex discrimination.
• In order to prevent or redress sexual misconduct
  on students by school employees, administrators
  must formulate, interpret, and apply Title IX
  regulations.

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Questions or Comments?