Preventing and Responding to Sexual Harassment in Schools
- Slides: 36
Preventing and Responding to Sexual Harassment in Schools SUE FRIETSCHE, WOMEN’S LAW PROJECT MEGAN BLOCK, WOMEN’S LAW PROJECT
This presentation is for informational purposes only and is not for the purpose of providing legal advice.
Title IX “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. ” 20 U. S. C. § 1681(a). The definition of “on the basis of sex” may change based upon current cases before the Supreme Court of the United States.
Scenarios Discuss the scenario at your table with your neighbors. While discussing, please determine: 1. Why is it sexual harassment? Is there problematic behavior? Is there a problematic response? 2. Why is it not sexual harassment? Why was the behavior acceptable/appropriate? Why was the response acceptable/appropriate?
Sexual Harassment and Violence 56% of girls and 40% of boys in grades 7 -12 are sexually harassed in any given school year. 56% of girls ages 14 -18 who are pregnant or parenting are kissed or touched without their consent. Nearly 1 in 3 girls ages 14 -18 reports having survived sexual violence. Students with disabilities are 2. 9 times more likely than their peers to be sexually assaulted. 38% of LGBTQ girls, 24% of Latinx girls, 23% of Native American girls, and 22% of black girls report being touched or kissed without their consent. More than half of LGBTQ students ages 1321 are sexually harassed at school.
What is Sexual Harassment? Unwelcome conduct of a sexual nature that is so severe or pervasive that it adversely affects a student’s education or creates a hostile or abusive educational environment. Examples can include: unwelcome sexual advances, unwanted requests for sexual favors, and other unwanted verbal, nonverbal, or physical conduct of a sexual nature.
Breaking Down the Definition: Severe or Pervasive For conduct to constitute harassment, it must be severe or pervasive. The more severe the conduct, the less frequently it needs to occur for it to be considered harassment.
Proposed Changes to Title IX At the end of 2018, the U. S. Department of Education proposed changes to Title IX regulations. One of the proposed changes is narrowing the definition of sexual harassment to: “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity. ” Also requires harassment to occur on campus
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Pop Quiz Write the following on an index card: ü Your school district; ü The name of the Title IX Coordinator; and ü The percentage of students, teachers, and parents who can identify the Title IX Coordinator.
Reporting Internally Right now, a student need only report to a “responsible employee. ” Who are the responsible employees in your school? A “responsible employee” includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty
Title IX Coordinator Title IX Coordinators: MUST be trained regularly on Title IX, including regulations, and agency guidance, and the school’s policies and grievance procedures. MUST NOT have any conflicts of interests. Coaches, athletic directors, superintendents, principals, general counsel, disciplinary board members, and the dean of students may have a conflict of interest. MUST be listed, along with the Coordinator’s office address, telephone number, and email address, on the school’s website.
Proposed Changes Schools would only be liable for sexual harassment if a small subset of employees with “authority to institute corrective measures, ” such as the Title IX Coordinator had, “actual knowledge” of alleged misconduct. Only schools responding with “deliberate indifference” would be held responsible. Michigan State University would have had no responsibility to stop Larry Nassar from sexually abusing girls because the victims reported the abuse to coaches and trainers instead of the Title IX Coordinator.
Reporting A student has told you they have experienced sexual harassment. Now what? Take the report of harassment seriously. Acknowledge the student’s feelings. Wait until a parent or guardian is present before taking a statement from the student.
What Do I Actually Say? I’m sorry that happened to you, and I’m really glad you trusted me enough to tell me. You aren’t alone– other people often feel the same way. It sounds like these issues might really be interfering with your well-being. I want you to know that it wasn’t your fault. There are people who can help you through this. I know it takes a lot of courage to speak up. That must have been terrifying …
Pair and Practice You have the opportunity to verbally engage with a student who experienced sexual harassment. What would you say the first time you met with the student? You have the opportunity to verbally engage with a student who sexually harassed another student. What would you say the first time you met with the student?
Relationship to Law Enforcement If the alleged harassment involves sexual assault or other severe conduct, schools should also contact local law enforcement. However, this does not eliminate the school’s duty to perform its own investigation.
Investigating Sexual Harassment Once a school has notice of sexual harassment, it should take immediate and appropriate steps to investigate what occurred. The school should also take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one exists, and prevent harassment from occurring again. This is the case regardless of whether the harasser is an employee, another student, or a third party.
Investigating Sexual Harassment STEP 1 Meet with the student and parent(s) of the student being harassed. Explain the avenues for informal and formal action, including filing a Title IX complaint and the grievance procedure and how that procedure works. This information should be provided even if the student did not complain but a responsible school employee observed the harassment. Regardless of whether the student who was harassed, or his/her parent, decides to file a formal complaint, the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.
Investigating Sexual Harassment Confidentiality If a student or parent of a minor student asks that the student’s name not be disclosed to the harasser, the school should inform them that a confidentiality request may limit the school’s ability to respond. The school should also remind them that Title IX prohibits retaliation, and that the school will take steps to prevent retaliation and will take strong responsive actions if retaliation occurs. In all investigations, schools should make every effort to prevent disclosure of the names of all parties involved, except to the extent necessary to carry out the investigation.
Investigating Sexual Harassment STEP 2 Investigate the sexual harassment The investigation must be prompt, thorough, and impartial. The specific steps of the investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student(s) involved, etc. In some cases, interim measures may be appropriate during the investigation.
Investigating Sexual Harassment STEP 3 If the school determines that sexual harassment has occurred, it must take reasonable, timely, ageappropriate and effective corrective action. The corrective action should be proportionate to the severity of the harassment. Examples of corrective action include: Counseling, warning, or taking disciplinary action against the harasser Directing the harasser to have no further contact with the harassed student Providing special training if a classroom environment has become hostile
Investigating Sexual Harassment Responsive measures should be designed to minimize the burden on the student who was harassed. In some situations, schools may have to provide additional services to the student who was harassed to address the effects of the harassment. For example: A school may have to provide an independent reassessment of student work if a teacher gave a student a low grade because the student failed to respond to the teacher’s sexual advances; Other additional services: allowing the student to retake a course with a different instructor, providing tutoring, reimbursement for professional counseling
Proposed Changes to Supportive Measures Under the proposed regulations, supportive measures must be “nondisciplinary, ” “non-punitive, ” “without fee or charge, ” and “without unreasonably burdening the other party. ”
Investigating Sexual Harassment STEP 4 Inform the harassed student of the outcome of the investigation and whether it counseled, disciplined, or otherwise sanctioned the harasser.
Retaliation Students who report sexual harassment often experience the following reactions from schools: They are held responsible for the sexual harassment or assault. They are punished and/or suspended. They are removed from activities and classes. Biased enforcement of the dress code
Dress Codes as Retaliation • Gender- and race-based dress codes • Enforcement through physical touching • Shame-based punishment • Sends the message that girls are to blame for boys’ conduct
A gender-neutral dress code: Portland A shirt with pants or skirt, or equivalent (dresses, leggings, or shorts). Fabric covering breasts, genitals and buttocks must be opaque. Shirts and dresses must have fabric in the front and on the sides (under the arms). Clothing must cover undergarments (waistbands and straps excluded). Hats must allow the face to be visible. Hoodies must allow the face and ears to be visible.
Retaliation LGBTQ+ students, students of color, and students with disabilities are not only more likely to be harassed, but they also face worse retaliation from schools. Schools are more likely to ignore and punish women and girls of color who report harassment due to harmful stereotypes that label them as “promiscuous, ” “angry, ” and “aggressive Schools are more likely to ignore or punish students with disabilities who report harassment due to harmful stereotypes that label them as “asexual” and the fact that they may have difficulty describing the harassment Schools are more likely to ignore or punish LGBTQ+ students who report harassment due to harmful stereotypes that label them as “promiscuous” and “draw attention to themselves. ”
Retaliation Students accused of sexual harassment usually experience the following responses from schools: Their behavior is dismissed or cannot be proven (“he said/she said”) No action is taken to stop them from harassing the other student If anything, they are only told to “Stop it. ”
What are some barriers that schools face? Time Money Resources
Best Practices When a school has notice of sexual harassment, it should: Take the complaint(s) seriously Engage parents and professionals Investigate Provide and connect students to resources and support Utilize resources Hold students accountable Implement remedies Create and enforce safety plans Ensure a safe learning environment
What happens if best practices aren’t followed? OCR COMPLAINT Anyone can file a complaint for free. No lawyer necessary. File within 180 days of discriminatory conduct TITLE IX FEDERAL CLAIM Can go straight to court File within 2 years of discriminatory conduct Court can award new policies, hiring, climate surveys, monitoring, $$$ to victim OCR investigates, mediates OCR issues Letter of Findings and Resolution Agreement Court can award attorney’s fees to winner (hourly rate X # hours worked) OCR can order new policies, hiring, climate surveys, monitoring, loss of $$$ Average cost per lawsuit: $350, 000
Recovery and Healing But here is what happens when a school proactively addresses sexual harassment.
Questions?
Contact Information Sue Frietsche sfrietsche@womenslawproject. org 412 -281 -2892 Megan M. Block megan@unionlawyers. net 412 -391 -7711
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