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Facts about Sexual Harassment in Education

Under Title IX of the Education Amendments of 1972, no individual may be discriminated against on the basis of sex in any education program or activity receiving Federal Financial Assistance. Sexual harassment of students is a form of prohibited sex discrimination.
Title IX protects any "person" from sex discrimination. Accordingly, both male and female students are protected from sexual harassment, even if the harasser and the person being harassed are members of the same sex.
There are two types of sexual harassment:
Quid Pro Quo - a school employee explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances, request for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Quid Pro Quo harassment is equally unlawful whether the student resists and suffers the threatened harm, or submits and avoids the threatened harm.
Hostile Environment - Sexually harassing conduct, such as unwelcome sexual advances, request for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, by an employee, another student, or by a third party, that is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.
Liability Of A School District For Sexual Harassment Of A Student By An Employee
A school district will always be liable for even one instance of quid pro quo harassment by a school employee in a position of authority, whether or not it knew, should have known, or approved of the harassment at issue.
A school district will also be liable for hostile environment sexual harassment by its employees if the employee acted with apparent authority or was aided in carrying out the sexual harassment of students by his or her position of authority with the school district.
In situations not involving the above situations, the school district is liable for sexual harassment of its students, by employees, if the district fails to take immediate and appropriate steps to remedy known harassment.
Liability Of A School District For Student-On-Student Sexual Harassment

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

In contrast to the variety of situations in which a school district may be liable for sexual harassment by it's employees, a school district will be liable for student-on-student sexual harassment if:
a hostile environment exists in a school's programs or activities;
the school district knows or should have known of the harassment; and
the school district fails to take immediate and appropriate corrective action.
Title IX does not make a school district responsible for the actions of the harassing student(s), but rather for its own discrimination in failing to remedy it once the school district has notice.
Liability For Sexual Harassment Of A Student By a Third Party
Sexually harassing conduct of third parties, who are not themselves employees or students at the school, such as a visiting speaker, delivery person, etc., can also cause a hostile environment in school programs and activities. For the same reasons a school district is liable for a hostile environment caused by its students, a school district will be liable if third parties sexually harass students if:
a hostile environment exists in a school's programs or activities;
the school district knows or should have known of the harassment; and
the school district fails to take immediate and appropriate corrective action.
However, the type of appropriate steps the school district should take will differ depending on the level of control the school district has over the third party harasser.
Effects Of Grievance Procedures On Liability
School districts are required by Title IX to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints, including sexual harassment complaints, and to disseminate a policy against sex discrimination. By having a strong policy against sex discrimination and accessible, effective, and fairly applied grievance procedures, a school district is telling its students that it does not tolerate sexual harassment and that students can report it without fear of adverse consequences.
The U.S. Department of Education Office For Civil Rights (OCR) Case Resolution
If OCR is asked to investigate or otherwise resolve incidents of sexual harassment of students, including incidents caused by employees, other students, or third parties, OCR will consider whether: (1) The school has a policy prohibiting sex discrimination under Title IX and effective Title IX grievance procedures; (2) the school appropriately investigated or otherwise responded to allegations of sexual harassment; and (3) the school has taken immediate and appropriate corrective action responsive to quid pro quo or hostile environment harassment.
If the school district has taken each of these steps, OCR will consider the case against the school district resolved and take no further action other than monitoring compliance with any agreement between the school district and OCR.
This information was taken from the OCR publication, "Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties."

 

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