Federal and state laws prohibit sexual harassment in school. A Connecticut sexual harassment attorney can take a board of education to court for knowingly allowing it to take place in one of its schools. The law will hold a board liable no matter who commits the harassment, whether it is another student, a teacher or a member of the staff.
“Judge Rules Against New Fairfield Schools in Sexual Harassment Lawsuit.” — Danbury News-Times
Administrators can be held responsible for sexual harassment in school when they let two things happen. First, they fail to act reasonably against harassment’s “hostile environment.” Second, they let that sexual hostility keep the victim from taking part in classes and activities.
“Suit Says Trumbull BOE Failed to Protect Student after Report of Sex Assault.” — Connecticut Post.
An experienced sexual harassment lawyer knows that misconduct happens in school more often than parents expect. Out of embarrassment and fear their child or teen may not tell them about the humiliation they have suffered at school. Once they do learn about it, families may understandably fail to see it as the civil rights violation it is, thinking instead their child has ‘only’ been bullied.
UNWELCOME SEXUAL CONDUCT BETWEEN STUDENTS
Sexual harassment in school starts with ‘unwelcome conduct of a sexual nature’.
Sexual misconduct between students can take place anywhere at school. It can happen on any school-sponsored activity. It can happen on the bus, on a playing field or on a field trip.
Sexual misconduct takes many forms. The United States Department of Education’s Office of Civil Rights lists these: “touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating e‐ mails or Web sites of a sexual nature.”
Misconduct includes all that a student can say, write or do to another. It need not take place at school. It can take place in person, on a phone or on the internet. It can happen only once. It may not be aimed at anyone in particular. It may not have been meant to offend.
Sexual conduct is “unwelcome” when it offends. It is not welcome just because the victim does not complain. The student might be afraid the perpetrator will harm them if they report it. A coach can hug a player on the field for scoring a goal. But the same coach may not be free to hug the same player alone in his office.
“SEVERE AND PERVASIVE” SEXUAL HARASSMENT
To be illegal, sexual harassment must be both severe and pervasive.
Sexual conduct is ‘severely’ hostile when a reasonable student finds it abusive. Everyday teasing, taunting and name-calling cannot be severely hostile. Everyday socializing and comments cannot be severely unwelcome. But some conduct is so abusive — rape, for instance — that it is severe even if it happens only once.
In Doe v. New Fairfield the New Fairfield police confirmed that an older boy sexually assaulted the victim multiple times at his house. In Doe v. Trumbull the victim alleges that a classmate picked her up at school, drove her to his house and raped her.
Sexual conduct is ‘pervasively’ hostile when the victim cannot escape its effect. Perhaps the victim cannot avoid the perpetrator’s presence. Maybe other have students joined in. Off-campus cyber-bullying can reinforce hostility already happening at school.
In Doe v. New Fairfield the victim encountered her assailant in the cafeteria and on the bus. His sister and her friends told Jane it was her fault he was in trouble. They said he hadn’t done much wrong. They said everyone at school would always know her as the victim. In Doe v. Trumbull the rapist’s friends threatened to kill Jane if she got him in trouble. They promised to hurt her if she encouraged other victims to come forward.
Severe and pervasive conduct creates a hostile environment. A hostile environment keeps the victim from taking part in school. They need not leave school entirely. It is enough if they cannot attend the same classes or take part in the same activities.
The victim in Doe v. New Fairfield never left school, but her grades suffered. In Doe v. Trumbull the victim now attends private school. Her assailant still attends Trumbull High School.
OFFICIALS PERMIT HARASSMENT TO CONTINUE
In a private lawsuit a Connecticut sexual harassment attorney must show that school officials knew about the conduct. It does not matter who they heard it from. It does not matter whether someone complained about sexual harassment by name.
Once they know, officials cannot show ‘deliberate indifference’. This essentially means they must take reasonable steps to stop the harassment and cure its effects. They must act promptly. Waiting for the victim to file a complaint is not acceptable. Neither is waiting for law enforcement to investigate.
They must take must thorough and effective measures. They must make the victim feel less vulnerable. The district must have a policy on discrimination, and officials must follow it. They cannot persist with ineffective measures.
In Doe v. New Fairfield the Court ruled in Jane Doe’s favor. It held that a jury could have found the Board acted unreasonably. In regard to the perpetrator’s presence, there was evidence of indifference. Officials denied Jane could have seen him in the cafeteria. The superintendent insisted they could not expel him without Jane testifying in person. To fix the problem of his presence they relied on him to voluntarily withdraw from school. They could not guarantee Jane that he would never return.
In regard to the steps they took, there was evidence they were minimal and ineffective. Nobody investigated the sister and the other harassers. No one referred the matter to the district’s Title IX Coordinator for investigation, even though they had taken that step for other victims. On five occasions Jane’s parents asked officials for help against the classmates. Each time they persisted with inadequate measures. They suggested Jane not sit with them in the cafeteria. They told her to talk to the social worker. They even asked the parents for suggestions as to what they should do.
In Doe v. Trumbull officials did not follow their own policy. They did not refer the harassment to their Title IX Coordinator. They did not investigate the harassing students. They persisted with the same plan of action long after everyone saw it had no effect on the harassers.
Under President Obama the Office of Civil Rights interpreted “discrimination on the basis of sex” to include the sex a person identified with, not the one they were born with. Under President Trump the Department of Education has taken a different approach. The question may be settled by the United States Supreme Court.
For more information on how federal civil rights laws apply in school, contact Connecticut sexual harassment attorney Greg Smith. And for a free consultation on the facts of your case, you may call him at (413) 822-3040 or use the contact form on this site.