What Does Sexual Harassment At School Look Like?
Courts and schools see sexual harassment as unwelcome conduct, of a sexual nature, so severe, pervasive and objectively offensive that it deprived the victim of access to the school’s opportunities and benefits
“unwelcome conduct” Physical contact obviously counts, but so do gestures in the hallway, songs on the playground and posts on social media.
“of a sexual nature” One student can harass another for any reason, but it is harassment if sex or sexuality is the focus. The gender and identity of the two students do not matter — harassment is harassment.
“severe, pervasive and objectively offensive” The victim cannot escape: in the bathroom the harasser’s friends warn them to keep quiet; they regularly see the harasser on the bus and in the cafe; other students tell them it’s all their fault the harasser is in trouble.
“deprived of access to the school’s benefits and opportunities” The victim cannot fully take part in school: their grades fall, they skip classes or they keep their grades up but it takes twice as much effort.
When a student believes they have been harassed, they may report it with a formal complaint. If the Title IX Coordinator learns of harassment on their own, they may file a complaint themselves.
School officials will act on the assumption that the accused (the ‘respondent’) is innocent. They will offer both the respondent and the ‘complainant’ free, individualized supportive measures — help with schedules and deadlines, minimized contact, escorts — designed to restore or preserve equal access to an education.
Officials may not take punitive measures or disciplinary action against a respondent without an investigation into the complaint. But if the complaint threatens a student’s safety, officials can remove a student on an emergency basis. For example, in May 2022 Simsbury High School ordered a student to stay home after classmates staged a public protest against his continued presence.
Officials will provide the respondent with formal notice of the complaint. It will give them the allegations in enough detail to allow them to prepare a response. It will notify them that they have the right to an advisor to inspect and review the evidence.
The district will designate one person to investigate. They must be trained in Title IX regulations but may not be the Title IX Coordinator. They will investigate but someone else will make the final decision on responsibility.
The investigator will gather all relevant information. The parties may present evidence and identify witnesses. The investigator will talk to students, officials, parents and all other relevant sources of information. They may collect evidence from social media.
If the investigator requests a party’s attendance, they may bring an advisor. Evidence of the complainant’s prior sexual activity is not relevant. The investigator may not look at confidential information without a party’s consent.
After the investigator finishes their work but before they issue their report, they will give both parties ten days to inspect, review and respond to the evidence they gathered. The investigator will then make a report that summarizes the evidence. The Superintendent will appoint a ‘decision-maker‘ to receive the report.
Within ten days of receiving the report the parties may submit a written response to the decision-maker. Each side may submit questions to be asked to parties and witnesses, including follow-up questions.
The decision-maker will review all the evidence, judge the preponderance of the evidence and issue a written determination. Their decision will say what behavior allegedly occurred, find the facts as to what did occur and decide if the conduct amounted to sexual harassment.
Both parties will have ten days to appeal the decision. An appeal must either offer new information or show that either the investigator or decision-maker had a bias or failed to follow procedure.
A finding of responsibility for harassment stays on the respondent’s record for seven years. Since the decision will be noted in the student’s disciplinary file, upon graduation from high school the finding will be erased.
When the School Drops the Ball
Officially allowing sexual harassment to continue — “deliberate indifference“— amounts to discrimination on the basis of sex. It is illegal under Title IX. Victims of it generally take a school district to court because officials heard about harassment but did too little to protect the victim. The administration will then have to defend the reasonableness of its officials’ steps to stop it from continuing.
Sadly, transgender students and those in the LGBQ+ community suffer more than their share of harassment. For example, during the 2021-22 school year the principal of a Connecticut magnet school told a victim of homoerotic harassment that because the school could not do much about it, he would just have to ignore it.
Contact An Experienced Lawyer To Discuss Your Child
If you believe your child has been involved in harassment of any kind at school, it is important that you understand your options. To schedule a consultation with education attorney Gregory Smith, complete his Contact form and he will be in touch promptly.