The federal statute Title IX outlaws sexual harassment in school. A civil rights attorney for the victim of harassment will take a district to federal court if they knowingly allowed the perpetrator to abuse their client.
“Judge Rules Against New Fairfield Schools in Sexual Harassment Lawsuit.” — Danbury News-Times
School officials ‘discriminate on the basis of sex’ when their indifference allows harassment to create a “hostile environment.” Victims can sue when sexual hostility costs them their ability to take part in classes and activities.
“Suit Says Trumbull BOE Failed to Protect Student after Report of Sex Assault.” — Connecticut Post.
Sexual harassment at school happens more often than parents expect. Out of embarrassment and fear their children may choose to keep quiet about the pain they have suffered. Families may also fail to recognize harassment as the civil rights violation it is, thinking instead that the victim has “only” been bullied.
UNWELCOME SEXUAL CONDUCT BETWEEN STUDENTS
The discrimination we call sexual harassment starts with ‘unwelcome conduct of a sexual nature’.
Sexual conduct between students can take place anywhere at school. It can happen on the bus or on a playing field. It can happen on a field trip.
Sexual conduct 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.”
It includes all that one student can say, write or do to another. 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.
Gender and gender identity do not matter. Students of the same sex can sexually harass each other. A student can target another for their gender identity, transgender status or gender transition.
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.
Sometimes conduct is not what it appears. Officials at a seventh-grade boy’s middle school in Danbury suspended him for sexual misconduct. A staff member thought she saw him gesture sexually towards a female classmate. Mr. Smith filed suit in federal court. In the complaint he alleged that officials had disciplined the boy merely for his sex. They assumed his gesture was sexual simply because a male had made it. They had no evidence that it offended the classmate.
TITLE IX OUTLAWS SEXUAL HARASSMENT AT SCHOOL
Title IX of the Educational Amendments Act of 1973 outlaws discrimination on the basis of sex. It applies to all public schools and most private ones. The law itself says nothing about sexual harassment. In 1999 the Supreme Court of the United States made clear that one student’s harassment of another counts as discrimination if it keeps the victim from taking part in classes and activities.
Under Title IX parents can take a school to court for letting discrimination happen. In cases where one student has harassed another, the victim’s Title IX attorney must establish two elements. First, the unwelcome conduct harassed the student so seriously and persistently that it kept them from learning. Second, officials knew about this “hostile environment” but did not do enough to stop it.
“SEVERE AND PERVASIVE” SEXUAL HARASSMENT
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 Title IX 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 knew, officials must do more than 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. Officials must follow their district’s own policies on discrimination. 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 the federal civil rights law on sexual harassment, contact Title IX 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.