Student Sexual Harassment Guidance

Student Sexual Harassment: Powerful Guidance Provided by Federal Agency

By Mary Jo McGrath, Attorney at Law
Founder, McGrath Systems, Inc.

Strong, clear guidance was published March 13, 1997 by the federal government regarding sexual harassment of students by peers, employees and third parties. The OCR is the agency mandated by law to interpret and enforce the federal legislation prohibiting sexual harassment in our schools. These guidelines cover issues of defining what sexual harassment is and what standards should be used to investigate and resolve allegations in these matters.

Highlights, along with commentary, include:

  • How to distinguish annoying sex-based conduct from that which rises to the level of sexual harassment. It is emphasized that conduct must be so severe, persistent or pervasive that it adversely affects a student’s education or creates a hostile or abusive educational environment before it is considered sexual harassment. Annoying behavior or one time occurrences that are not severe do not add up to sexual harassment.
  • The age of the student needs to be considered in determining how the school should respond. Good judgment and common sense are essential elements in designing an appropriate response to allegations and remediation of the situation.
  • A general student disciplinary or behavior code may be used to address allegations of sexual harassment so long as it effectively ends the sexual harassment which was occurring and prevents reoccurrence. Conduct which is not unlawful sexual discrimination may yet be misconduct and warrant appropriate discipline. It is not an “all or nothing” deal.
  • Labeling conduct as sexual harassment before the facts are determined can be inflammatory and unnecessary. After a prompt, thorough and objective investigation is conducted, the determination of whether the conduct rises to the level of sexual harassment should be made – not before the fact by calling it a “sexual harassment’ investigation.
  • Same sex conduct of a sexual nature may be sexual harassment; for example, a group of girls directing sexually explicit comments toward another girl. Non-sexual discriminatory conduct based on the student’s sexual orientation is not addressed under federal Title IX laws, rather state and local laws apply.
  • Any employee who receives notice of harassment may be required to report the conduct to other school officials for proper handling. Not every employee who receives notice is equipped to take steps to end the harassment or prevent the recurrence. Every employee needs to know that they are responsible to get the information to the appropriate person, especially when young children are involved. The OCR recognizes that court jurisdictions differ in their interpretation of this issue and encourages further review consistent with the guidelines.
  • Schools may avoid liability for the effects of hostile environment sexual harassment if they act with speed and efficacy. Ignored complaints may result in the school paying for counseling and other services to remedy the harm.
  • The Guidance addresses the difficult issue of the conflict between a complainant’s desire for anonymity and the accused due process rights. The OCR describes factors to consider in balancing the needs of all, which include the nature of the harassment, the age of the students involved and the number of incidents and students involved. In all cases every effort should be made to prevent public disclosure except to the extent necessary to carry out a thorough investigation.

In addition to the OCR’s clear stand on the why’s and how’s of eliminating sexual harassment, courts and legislatures across the land are slamming shut loopholes in the law. Administrator liability is found for employee references which omit information regarding allegations of sexual misconduct. Secret settlement agreements allowing mobile molesters to move on are deemed illegal. The issues of sexual harassment and abuse must be addressed head-on. Side-stepping and expediency are ended as a way of handling these issues.

The demand for educator awareness and expertise is growing daily.
Be wise – get quality training now. The fool hardiness of being
penny-wise and pound foolish has never been so true. MJM

Spring 1997

“Editors’ note: This article is general in nature and is not intended to replace professional, legal advice.”

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