You do what you can to make sure your children are safe. Unfortunately, you cannot be there to protect your children every minute they are at school. School is supposed to be a safe place, but sometimes students or teachers engage in unacceptable behavior. Therefore, it is important to understand your rights and your child’s rights. This is especially true when it comes to sexual harassment in learning environments.
Who is liable for sexual harassment in school? The perpetrator is liable, and the school is often liable. We can give you a brief review of your child’s rights and what steps to take if these issues arise in your child’s school.
How the Law Defines Sexual Harassment in Schools
When it comes to school, sexual harassment (also called “sex-based harassment”) can take on many disturbing forms. The United States Department of Education notes that sexual or sex-based harassment is “unwelcome conduct of a sexual nature” that can include:
- Physical conduct of a sexual nature;
- Unwelcome sexual advances;
- Verbal conduct of a sexual nature;
- Nonverbal conduct of a sexual nature;
- Requests for sexual favors;
- Sexual violence; and
- Harassment based on someone’s sex, gender, or perceived sexuality.
If the harassment rises to the level of interfering with a student’s ability to participate in school activities, that harassment has created a hostile environment that must be addressed.
Schools Must Take Proactive Steps to Prevent and Eliminate Sexual Harassment
Schools that receive federal funding must comply with Title IX of the Education Amendments of 1972. Title IX states that school environments cannot exclude, deny benefits to, or discriminate against students on the basis of their sex. These rules against harassment apply to teachers, students, and third parties in the school environment.
If a school knows or should know about sex-based harassment occurring in the school environment, they must immediately investigate the matter. They must also quickly take effective steps to eliminate, remedy, or prevent harassment.
When Is a School Liable for Sexual Harassment?
In the 2020 case Karasek v. Regents of the University of California, the Ninth Circuit Court of Appeals (which includes Oregon) outlined the basic standard for proving that a school is liable for sexual harassment. The five main elements a victim of harassment must prove are:
- The school had control over the harasser and the environment where the harassment occurred;
- The victim suffered harassment so severe, pervasive, and objectively offensive that it deprived them of access to school benefits and opportunities;
- A school affiliate with authority to address the harassment had actual notice of the harassment;
- The school was unreasonably and deliberately indifferent in light of what it knew; and
- The school’s indifference made the victim vulnerable to harassment.
Successfully proving these elements relies heavily on the facts of your case. Also, schools have a lot of discretion regarding how they choose to handle the sexual harassment reports they receive.
What Can Parents and Students Do to Hold Schools Accountable for Sexual Harassment?
Unfortunately, federal law gives schools a lot of leeway when taking disciplinary action against perpetrators of sexual harassment. In Karasek, the court noted that the University of California’s reaction to a number of harassment complaints was inadequate, but it did not subject the school to Title IX liability. Do not let this discourage you. If you act quickly and stay persistent, there are ways to increase the likelihood of getting a Title IX harassment decision in your favor. We can discuss them below.
Make a Formal Complaint in Writing Each Time Harassment Occurs
The Congressional Research Service notes that courts across the country do not agree about what kinds of reactions make schools liable for sexual assault. However, victims of harassment are more likely to receive legal relief if they notify the school of harassment and suffer additional harassment after the school fails to respond appropriately. Of course, we do not want our children to suffer harassment once, let alone multiple times. But if your child communicates a pattern of harassment and you make a written complaint to the proper school authorities each time, you have a better chance of holding the school accountable for their deliberate indifference.
It is important to keep the lines of communication open with your child in a way that makes them feel safe to share. If they feel free to share, they will tell you about multiple harassment episodes so you can establish that it is a consistent problem. It is also essential to read the school’s harassment policies and procedures when your child starts attending and immediately after learning of harassment. This way, you know to whom you must send written complaints if there is an issue.
Keep Track of Changes in Your Child’s School Participation and Achievement
Have you noticed a drastic change in your child’s grades? Have they dropped multiple extracurricular activities in a short amount of time? Speak to your child about what might be preventing them from participating like before. If harassment is the reason their engagement changed, collect details about that harassment. Is your child failing in a class where they previously exceled because they have to sit near their harasser every day? Did your child drop sports or band because their harasser is consistently part of the group? Having the details of these connections between declines in participation and harassment can make it easier to prove that the harassment was so pervasive that it deprived your child of access to school opportunities.
Take Reasonable Steps to Find Out If Other Students Suffered Harassment
The Sixth Circuit has held that a Title IX claimant has to prove they suffered additional harassment after notifying their school. The Ninth Circuit does not agree. In Karasek, the court indicated that victims could hold a school accountable after one instance of harassment if:
- The school had a pattern of ignoring reports of harassment;
- The school had control over the parties and environments involved in the harassment reports; and
- The victim suffered harassment as a result of the school’s pattern.
If you know of other instances of inappropriately addressed harassment that occurred at your child’s school, you can prove the school is liable because of the environment it fostered.
It is important to be sensitive about other students’ privacy, but reasonably gather what information you can about other harassment events at your child’s school. Having knowledge of other events can help you remedy your child’s harassment issues more quickly.
We Can Help You Protect Your Child
Sexual harassment is devastating to its victims and their loved ones. If your child has suffered this kind of pain, we are very sorry. We know there is a lot of emotional work you need to do to be there for your child. Let us do the legal work to hold the right parties accountable. At D’Amore Law Group, we have over 30 years of experience. Our sexual misconduct attorneys are compassionate, knowledgeable, and committed to securing justice for those who have suffered harassment. We strive to protect the community around us with our legal expertise. You can call us or contact us online for a free case evaluation.
