Focus: School Law

District Vulnerability in Student Harassment Cases

by Nathan L. Essex

In a rare case in Texas, two parents filed a $5 million Title IX lawsuit against the Eanes Independent School District for failure of school officials to protect their daughters from sexual assault by another girl in their kindergarten class.

Student-on-student sexual harassment in public schools was addressed for the first time by the U.S. Supreme Court in a landmark case, Davis v. Monroe County Board of Education, in 1999 when the court ruled that school officials may be charged when the harassing student’s behavior is so severe, pervasive and objectively offensive that it denies the victim equal access to an education. The court ruled further that harassment claims are valid when school officials are clearly unreasonable and deliberately indifferent toward the harassing conduct.

The parents in the Eanes case contended their daughters were repeatedly subjected to sexual assaults by a third child during nap breaks and playground activities. The assaults allegedly occurred after the abusive child’s mother warned school officials that there might be a problem involving the abusive child.

Prudent Measures
Based on the parent’s warning, how vulnerable were school officials regarding liability? One pivotal issue centered around the point at which school officials were actually warned by the harassing child’s mother that her daughter was capable of abusing other students based on having been a victim of sexual abuse.

Second, did school officials have prior knowledge of alleged acts of sexual assault committed by the accused child before they responded?

Third, what measures were taken to protect the two girls, and were these actions taken immediately by school officials upon being informed of the allegations?

In a recent development in the Eanes case, a federal judge ruled in favor of the school district when facts revealed the district had no prior knowledge that the children had been sexually abused. However, based on the U.S. Supreme Court’s posture regarding student-on-student sexual harassment, it would be prudent for school officials to consider the following measures to minimize legal challenges involving sexual assault:

• Create awareness among teachers that sexual harassment is illegal under Title IX of the Education Amendment of 1972.

Sexual assault constitutes sexual discrimination involving unwanted physical contact of a sexual nature perpetrated against another person of the same or different gender. It denies the victim an equal opportunity to participate and receive the benefit of an education.

Faculty and staff should be informed of all levels of harassment and the specific behaviors associated with each level. Consequences for violating school or district policies should be included as well as procedures for reporting suspected cases of sexual harassment. Therefore, teachers will be able to inform students of inappropriate behavior and of the actions that will be taken by the school for engaging in inappropriate behavior.

• Provide comprehensive education and awareness training programs for students.

Students must be made aware that sexual harassment is unlawful and in violation of school or district policy. They should be informed of all types of harassing behavior and the consequences for violating the harassment policy.

Appropriate training should be provided consistent with the students’ ages and maturity. Students must be informed of expectations regarding their behavior in school. Openness, honesty and respect for others should be emphasized and infused into the school’s culture.

• Be certain that policies reflect a zero tolerance toward student-on-student misconduct.

Clearly defined policies should be written and communicated to students and parents informing them that sexual harassment is unlawful and is a form of discrimination. School officials should convey through policy implementation that sexual harassment is totally unacceptable.

Everyone involved with the school should be aware that this type of undesirable behavior will not be tolerated and appropriate and fair disciplinary measures will be taken if anyone is found guilty of violating the harassment policy. These expectations should be communicated in the classroom and at parent-teacher meetings.

• Swiftly investigate complaints filed by students based on the seriousness of sexual harassment.

School officials must promptly investigate any claims of sexual misconduct. These investigations should be thorough, based on factual information and executed in a discreet manner.

Due process requirements also must be met during these investigations to ensure students’ individual rights are not violated. Disciplinary measures, if taken, should be based on school or district policy and should meet the requirements of fundamental fairness.

Parental Awareness
• Involve parents appropriately when there are allegations their children are either the aggressor or the victim of sexual harassment.

Parents should be informed of allegations regarding sexual harassment involving their children. Parental involvement at the appropriate stages will create awareness of the circumstances surrounding the allegations. It may also lessen the likelihood of legal challenges because they would have been appropriately informed and involved during the investigation.

• Maintain maximum confidentiality regarding sexual harassment allegations.

Confidentiality applies to conducting the actual investigation as well as protecting students involved in the investigation. Personal reputations may be damaged if confidentiality is breached.

All complaints should be well-documented along with the appropriate administrative response. Administrative records should be maintained in a secure file and only made available to authorized individuals such as teachers, counselors when necessary and parents if requested.

Nathan Essex, a professor of education law, is president of Southwest Tennessee Community College in Memphis, Tenn. E-mail: nessex@-southwest.tn.edu