Providing Students with the Protection They Deserve: Amending the Office of Civil Rights' Guidance or Title IX to Protect Students from Peer Sexual Harassment in Schools

Article excerpt

I. Introduction

A female was asked to describe oral sex, stabbed in the hand, called a "whore," hit, grabbed in the buttocks, and backed up against a wall where two males held her arms and started yanking off her shirt as a male, who stated that he was going to have sex with her, removed his pants.1 Another male told this same female that he could touch her anywhere he wanted to and no one would do anything about it.2 He touched her breasts and buttock, and when she complained, she was told by a person in authority to "be friendly."3 Another female was "thrown to the ground; laid on top of... in 'a sexual manner'; had her buttocks, breast, and genitals fondled"; and was told that she was going to be raped.4 When she made a written complaint to someone in authority, it was torn up before it was even read and she was told not to be a whistleblower.5 A third female, who was developmentally disabled and severely physically impaired, was repeatedly removed from supervision and taken to undisclosed locations by a male with a known history of sexual misconduct.6 The male took her to secluded areas to sexually assault and rape her.7 During one assault, the female bled and vomited on herself. When persons in authority discovered the assault, they told the female not to tell anyone about the attack and to forget it ever happened.8

As troubling as these assaults are, they become even more alarming when one realizes that these attacks were experienced by American school children. The knowledge that the females in these situations are girls as young as ten years old, and were assaulted on school grounds during school hours, further adds to the distress.9 And in each of these situations, teachers and principals were aware of the attacks but did little, if anything, to stop them.10

Reports of peer sexual harassment in American schools are growing at a staggering rate.11 One potential reason for the increase in peer sexual harassment stems from schools' confusion about their legal responsibility to respond to peer sexual harassment complaints. This confusion arises because schools must contend with two different legal standards: a constructive notice standard to protect themselves from losing federal funding, and an actual notice standard to protect themselves from private lawsuits. Under the constructive notice standard, a school can be found liable, and thus lose its federal funding, if the school knew or should have known about the peer sexual harassment. Under the actual notice standard, a school can only be found liable, and thus owe money damages, if the school knew about the peer sexual harassment. As a result of this continuing confusion, schools end up vacillating between under-protecting students from harassers and over-punishing students for conduct that does not rise to the level of sexual harassment. Thus, schools and students would benefit greatly from the promulgation of one standard for peer sexual harassment and the subsequent clarification of the two issues that the circuit courts have been unable to agree on: (1) who in the school needs to be notified of a peer sexual harassment problem for the school to have "officially received notice" requiring action on its part; and (2) whether a school simply needs to attempt to address a peer sexual harassment problem, or whether the school is required to actually effectively remedy the peer sexual harassment problem.12

When school districts need to know what the federal laws require of them, they turn to the Department of Education.13 If the school's questions concern sexual harassment, the school will be directed to the Department's Office of Civil Rights ("OCR") for assistance.14 The OCR writes Regulations and Guidance to help schools understand their responsibility under Title IX of the Education Amendments of 1972 ("Title IX").15 Unfortunately, the current Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties ("Revised OCR Guidance") only addresses what schools are required to do to protect themselves from losing their federal funding through the administrative process, rather than what school should do to protect themselves from private lawsuits seeking money damages. …