BOND, SCHOENECK & KING, LLP
SCHOOL LAW ACTION MEMO
March 1997
LIMITING LIABILITY FOR PEER SEXUAL HARASSMENT
When six-year-old Johnathan Prevette was
disciplined earlier this school year for planting a kiss on
a classmate’s cheek, the fallout was heard around the
world. And nowhere was it heard more loudly than in
the office of the superintendent of Johnathan’s school.
While the nature of Johnathan’s behavior and the ages
of the students involved made the school district’s
labeling of the conduct as sexual harassment seem silly,
other districts around the nation breathed a sigh of relief
that it was not their administrators making the call. As
anyone dealing with these issues knows, there are rarely
easy answers to the question of what constitutes peer
sexual harassment. With the publishing of draft policy
guidelines by the Office of Civil Rights (“OCR”) and
the development of legal standards by the courts,
however, the answers are becoming clearer.
OCR Draft Guidance
On August 14, 1996, OCR issued a draft of its Policy
Guidance (“Guidance”) regarding peer sexual
harassment, i.e., harassment that occurs during school
activities or on school grounds by one student against
another. OCR is the federal agency charged with
enforcing Title IX of the Education Amendments of 1972,
which prohibits discrimination on the basis of sex,
including sexual harassment of students, in educational
programs and activities. OCR's Guidance sets forth
the standards and practices a school should follow in
the investigation and resolution of claims involving peer
sexual harassment.
Peer Sexual Harassment Defined
OCR’s Guidance defines peer sexual harassment as
a form of prohibited sex discrimination that creates a
hostile educational environment. Unwelcome sexual
advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature constitute sexual
harassment when the conduct is sufficiently severe or
pervasive to limit a student’s ability to participate in, or
benefit from, the educational program, or to create a
hostile or abusive educational environment. The
Guidance reminds districts that the educational program
of a school includes the school’s entire operation. Thus,
Title IX protects students in connection with all of the
academic, extracurricular, athletic, and other programs
of the school, regardless of whether they take place in
the school, on a school bus, or in a class or program
sponsored by the school at another location.
District Liability for Peer Sexual
Harassment
Under the Guidance, OCR will find a school has
violated Title IX for peer hostile environment sexual
harassment where: (1) a hostile environment exists; (2)
the school has notice of the harassment; and (3) the
school fails to take immediate and appropriate remedial
steps. Title IX does not make a school responsible for
the actions of the harassing students. Rather, Title IX
imposes liability on a district for its own discrimination
in permitting the harassment to continue once the school
has notice of it.
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© 1997 Bond, Schoeneck & King, LLP
What Constitutes Actionable Harassment
To be actionable as harassment, sexual conduct must
be both unwelcome and severe or pervasive. Conduct
is unwelcome when the student being harassed regards
it as undesirable or offensive; the student being harassed
must not have solicited or incited the objectionable
conduct. The Guidance cautions, however, that a
student’s mere acquiescence in the conduct or the failure
to complain is not determinative of welcomeness
because a student might not resist sexual conduct or
complain for fear of making an already bad situation
worse. The ages of the students and the nature of the
conduct are two of the more important factors OCR
will consider in determining whether the conduct was
welcome.
With respect to whether conduct of a sexual nature
is sufficiently severe or pervasive to create a hostile or
abusive educational environment, OCR advises that all
relevant circumstances should be considered, including:
(1) the degree to which the conduct affected one or
more students’ education; (2) the type, frequency, and
duration of the conduct; (3) the number of individuals
involved on either side of the conduct; (4) the age and
sex of the alleged harasser and harassee; (5) the size of
the school, location of the incidents, and context in which
they occurred; (6) other incidents of sexual harassment
at the school; and (7) other incidents of gender-based,
but non-sexual, harassment at the school, such as verbal
or physical aggression, intimidation, or hostility based
on sex, which, when combined with incidents of sexual
harassment, could create a hostile environment.
What Constitutes Notice to the School
A school will be deemed to have notice of a sexually
hostile environment when it actually knew “or in the
exercise of reasonable care, should have known” of the
harassment. The Guidance provides that a school can
receive notice in a number of different ways. A school
may receive notice directly as a result of a student’s
filing of a grievance under the school’s Title IX grievance
procedures, or a parent or student’s complaint to campus
security, a principal, bus driver, teacher, affirmative action
officer, staff in the student affairs office, or other
appropriate personnel. Indirect notice to a school is
also sufficient to impute knowledge to the school. Such
notice may come from an individual who witnessed the
harassment, a member of the school’s staff, a member
of the educational or local community, the media, or
flyers about the incident posted around the school. In
short, if an agent or responsible employee of the school
received notice, OCR would impute that notice to the
school.
A school can also be charged with constructive notice
when it “should have known” about the harassment.
Thus, where harassment is found to be widespread,
openly practiced, or well-known to students and staff,
notice of the harassment will be imputed to the school.
In addition, a school will be found to have constructive
notice when the school would have discovered the
harassment if it had conducted a “reasonably diligent
inquiry” of the matter.
Appropriate District Response
To avoid liability for peer sexual harassment of which
it has notice, a school must take timely and appropriate
steps to remedy the problem. The appropriateness of
a school’s response to a complaint of sexual harassment
will vary with the situation giving rise to the complaint.
At a minimum, however, once a student or parent has
reported an incident of alleged harassment, or where a
district otherwise becomes aware of a potential
harassment problem, the school must investigate and
take immediate steps to resolve the situation. Resolution
of the matter will vary depending on such factors as:
the source and nature of the information; the seriousness
of the alleged harassment; ages of the students involved;
the complainant's desire to pursue the matter; the
existence of other complaints of harassment by the
alleged harasser; the specificity of the information; and
the objectivity and credibility of the source of the
complaint.
Where a school determines that sexual harassment
has occurred, it must take effective corrective action.
First, appropriate steps should be taken to end the
harassment. Second, corrective action should address
the effects on the student who was the subject of the
harassment. And, third, a school must take steps to
prevent any further harassment and/or retaliation against
the student for reporting the harassment.
Instituting Grievance Procedures
Title IX requires schools to adopt and publish
grievance procedures providing for the prompt and
equitable resolution of sex discrimination complaints
(including complaints of sexual harassment) and to
disseminate a policy against sex discrimination. The
Guidance recommends that these procedures provide
for: (1) notice of the procedure to students, parents,
and employees; (2) application of the procedure to
complaints of harassment by students; (3) designation
of at least one employee to carry out the school’s Title
IX responsibilities; (4) investigation of complaints by an
impartial investigator, including the opportunity to present
witnesses and other evidence (a criminal investigation
alone may not be sufficient); (5) designated time frames
for the major stages of the complaint process; (6) notice
to the parties of the disposition of the complaint (the
requirements of the Family Educational Rights and
Privacy Act may prevent a school from informing a
complainant of any discipline imposed on a student found
guilty of harassment); and (7) steps to prevent
recurrence of any harassment and to correct its effects
on the complainant and others.
Developments in the Courts
Cases decided prior to the issuance of OCR's
Guidance indicate that courts are divided on the standard
for determining school district liability for student-onstudent harassment.
Some courts have chosen to apply the legal
standards governing co-worker sexual harassment in
the workplace to claims arising under Title IX. Doe v.
Petaluma City School District, 1996 WL 432298 (N.D.
Calf. 1996). Under this standard, districts that do
nothing to end gender-based peer harassment once they
are aware of it can be held liable for the harassing
conduct of their students. (This standard is the one that
was adopted by OCR in its Guidance). In applying this
standard in a case involving the verbal harassment of a
junior high school female by her male peers, a California
court warned that, given the statistics regarding
harassment in the schools (85% of girls and 76% of
boys report having been the victim of unwanted sexual
comments or touching), a district that fails to develop
and implement effective procedures for reporting and
remedying peer harassment will be held to have intended
the hostile education environment that "inevitably" results
from that failure.
A few courts have taken this "inaction equals unlawful
action" approach one step further by holding that district
administrators and other school authorities may be
personally liable for a student's sexually harassing acts
where the administrator or employee is in control of the
program or activity in which the discrimination occurs.
Mennone v. Gordon, 889 F. Supp. 53 (D. Conn. 1995).
This means that a teacher who witnesses, or is otherwise
made aware of, harassment occurring in his or her
classroom, may be named as an individual defendant in
a Title IX action, if he or she fails to respond
appropriately to a complaint.
Other courts have refused to hold that mere inaction
on the part of a school district or school authority
amounts to discrimination under Title IX. See, e.g.,
Rowinsky v. Bryan Indep. School Dist., 80 F. 3d 1006
(5th Cir. 1996). Under this approach, a Title IX claim
would not be stated by merely showing that a district
permitted an environment hostile to members of one
sex to exist and continue. Rather, courts employing this
approach would hold that a district is liable only if it
affirmatively treats the complaints of one sex differently
than similar complaints made by the opposite sex.
Regardless of which theory of liability ultimately
prevails, a district is well advised to: (i) facilitate the
early reporting of incidents of peer harassment by
implementing well-publicized and effective reporting
procedures; (ii) investigate complaints on a timely and
thorough basis; and (iii) put a complete end to
harassment, where harassment is found as a result of its
investigation.
Scope of Title IX’s Protection
It is OCR’s position that Title IX protects both male
and female students from sexual harassment by their
peers. This means that Title IX prohibits sexual
harassment even where the harasser and student being
harassed are members of the same sex. Title IX does
not, however, protect against discrimination based on
sexual preference, although such conduct may be
prohibited by local law. In addition, while Title IX does
not apply to discrimination on the basis of race, the
guidelines provided here can be followed when
addressing a student’s complaint of race discrimination
or harassment. See OCR's Investigative Guidance on
Racial Incidents and Harassment Against Students.
Conclusion
The key to minimizing district liability for peer sexual
harassment is preventing it. The following checklist may
help to assess your district’s current efforts to prevent
peer harassment and identify where your school may
need to supplement those efforts.
e.g., students enrolled in vocational or academic
classes that are nontraditional for their gender;
students placed at off-campus work sites; bus
riding students; etc.
[This checklist was extracted from Sexual Harassment
in American Secondary Schools: A Legal Guide for
Administrators, Teachers, and Students.]
For more information, contact :
In Albany, Richard C. Heffern at
(518) 462-7421;
In Buffalo, Jeremy V. Cohen or
Joseph L. Randazzo at (716) 853-7262;
In Syracuse, Donald E. Budmen or Virginia A.
Piekarski at (315) 422-0121.
Checklist: Preventing Peer Sexual
Harassment in Your School
1. Develop a specific policy against sexual
harassment and then disseminate it to all staff
and students. Make sure a procedure is in place
to inform new employees and students of the
policy.
2. Develop a grievance and investigation
procedure to handle complaints of sexual
harassment. Disseminate information about the
procedure to all staff and students. Designate
a Title IX compliance officer.
3. Develop a code of conduct for all employees,
students, vendors and visitors. Include it in
student and employee codes of conduct and
handbooks. Post it throughout the school.
4. Sensitize students and staff to the issue of sexual
harassment. Training programs, course
material, advisory pamphlets, and school-wide
conferences can help here.
5. Reach out to populations of students who are
particularly vulnerable to sexual harassment,
The Bond, Schoeneck & King, LLP School Law Action Memo is a publication for the clients and friends of Bond,
Schoeneck & King. The information contained in this Memo is not intended to be a substitute for professional
counseling or advice.