The law recognizes two forms of sexual harassment: quid pro quo and hostile environment. Quid pro quo cases (“something for something”) must demonstrate that sexual favors were coerced in exchange for some form of favor such as keeping one’s job, securing a promotion, or getting a raise. Hostile environment cases must demonstrate that unwanted sexual behaviors created an environment that negatively affected a person’s ability to perform his or her duties.
Legal protections in the United States against sexual harassment in the workplace date back to Title IV of the Civil Rights Act of 1964 (P.L. 88-352), which prohibits workplace discrimination on the basis of race, color, religion, sex, and national origin. However, schools did not have legal precedents to guide their responses to incidents of sexual harassment until 1992, when the U.S. Supreme Court ruled in the case of Franklin v. Gwinnett County Public Schools. In this landmark decision, a student named Christine Franklin filed a complaint against a coach and teacher at her school, Andrew Hill, for sexual harassment and abuse. Starting in the fall of 1986, when Franklin was in 10th grade, Hill had sexually oriented conversations with her and asked whether she would consider having intercourse with an older man. The behaviors escalated to forcible kissing and excusing Franklin from class and “subjecting her to coercive intercourse” (p. 63). The school investigated Hill’s behavior and allegedly took no action against him; in addition, it discouraged Franklin from pressing charges against Hill. Hill resigned on April 14, 1988, on the condition that all charges against him be dropped.
Franklin’s lawyers used Title IX of the U.S. Education Amendments of 1972 to establish that students in schools that receive federal funding are protected from harassment based on sex and may be awarded financial damages. Although Title IX is most widely known for its impact in reducing disparities between men and women in athletics participation at the collegiate level, it was written so as to protect individuals from being discriminated against by any federally funded educational institution on the basis of sex.
The second important sexual harassment case that affected students in schools was Davis v. Monroe County Board of Education (1999). When she was in the fifth grade, a male classmate of LaShonda Davis tried to touch her breasts and told her, “I want to get in bed with you” and “I want to feel your boobs.” Davis reported this behavior to her mother and teacher, but the school did not do anything to support Davis or punish the perpetrator. This harassment continued, with Davis being subjected to verbal taunts, leers in class, and unwanted behaviors. Although Davis reported each of these incidents to her teachers, she still had to sit next to the offending student in class and nothing was done to stop the harassment. The incidents stopped six months later when her parents went to the police; they charged the boy with sexual battery, to which he pleaded guilty. During this time, Davis’s previously high grades had dropped, and her father discovered that she had written a suicide note. These events led to a second landmark Supreme Court decision that applied Title IX to cases of student-on-student sexual harassment.
In cases of sexual harassment, four main criteria must be met under the application of Title IX:
- School officials must have actual knowledge of the harassment.
- School officials must demonstrate deliberate indifference to harassment or take actions that are clearly unreasonable.
- School officials must have substantial control over both the harasser and the context in which the known harassment occurs.
- The harassment must be severe, pervasive, and objectively offensive such that it can be said to deprive the victim) of access to the educational opportunities of benefits provided by the school (Davis v. Monroe, 1999).
The combination of actual knowledge with the acts of deliberate indifference is essential in harassment cases brought under Title IX. The Office of Civil Rights has since clarified that the OCR does not make schools responsible for the actions of the harassing student, “but rather for its own discrimination in failing to take immediate and appropriate steps to remedy the hostile environment once a school official knows about it.” Finally, it is important to note that in cases decided in favor of the student, federally funded institutions may be held financially liable for damages.
Although Title IX and the OCR provide clear guidelines and protections for students experiencing sexual harassment, legal scholar Gigi Rollini (2003) argues that “the only victims [who] succeed under Davis are ones [who] are utterly debilitated by the harassment.” This is due to the fourth criterion, which requires students to demonstrate that the harassment was so severe that it deprived them of access to an education. This point shields the legal system from having to handle minor complaints, but it provides minimal protection to students who are experiencing harassment but manage to maintain their academic performance despite the abuse. In addition to protecting students from heterosexual harassment, Title IX has been used to defend the rights of students who have been targeted for sexual orientation harassment.
Title IX protections have been applied more broadly in cases such as Ray v. Antioch Unified School District (2000) and Montgomery v. Independent School District No. 709 (2000). In these cases, separate federal district courts (California and Minnesota, respectively) decided that schools could be held liable under Title IX for acting with “deliberate indifference” toward students who have reported persistent and severe sexual orientation harassment at school. These decisions applied the four criteria established in Davis v. Monroe, and held that Title IX could be effectively used to defend students in cases of sexual orientation harassment by their peers.
The case Henkle v. Gregory (2001) provides one example of how a student’s complaint led to changes in his school district. In this case, the federal district court of Nevada allowed the case, which sought punitive damages for the Title IX sexual orientation harassment of Derek Henkle, to proceed. The school district chose to settle this case and paid $451,000 in damages to the student. Part of the settlement included changes to several district policies on discrimination and harassment to include sexual orientation and gender expression. These cases indicate that students are using existing legal protections to not only find relief from their own sexual harassment, but also educate others and update the policies and practices of their schools to reduce the potential for harassing behaviors to be directed at other students.
- Meyer, E. (2009). Gender, bullying, and harassment: Strategies to end sexism and homophobia in schools. New York: Teachers College Press.
- Office for Civil Rights. (1997). Sexual harassment guidance: Harassment of students by school employees, other students or third parties. Retrieved April 19, 2008, from http://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html
- Rollini, G. (2003). Davis v. Monroe County Board of Education: A hollow victory for student victims of peer sexual harassment. Florida State University Law Review, 30, 987-1014.
- Roth, S. (1994). Sex discrimination 101: Developing a Title IX analysis for sexual harassment in education. Journal of Law & Education, 23(4), 459-521.