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Wherever there are public and private schools and organizations that provide activities for children, there are stories about school sexual harassment and abuse. In West Virginia, a fifth-grade teacher started a “sex club” with some of her students. She brought them to her home to “teach” them, by demonstration, about sex. In a Vermont school for deaf children, the night supervisor made several visits to a student’s room to engage the girl in sex. In a Florida private preschool program, two 5-year-olds were alone in a playground slide tunnel and one was accused of sexually molesting the other. In a New Jersey school, a student was raped in the stairwell while classes were in session. A Philadelphia jury convicted a priest and teacher in January for the rape of a 10-year-old altar boy, in a case that also resulted in a monsignor’s incarceration for assigning known pedophile priests to unsuspecting parishes.

Although these cases may seem extreme, they are real. Unfortunately, they are not isolated incidents. For the majority of children, sexual harassment and abuse is an everyday part of life. The American Association of University Women Educational Foundation’s survey on sexual harassment found that 4 of every 5 students — boys and girls — in grades 8 through 11 had experienced some form of sexual harassment at school. According to the report, this harassment ranges from rumors being spread about students to children being touched in a sexual way.

Title IX

Any school or organization that accepts federal funds has a vested interest in preventing sexual harassment. Gwinnett v. Franklin[1] seized the attention of attorneys representing schools and other organizations and those representing children alleging sexual harassment or abuse. In this 1992 case, the U.S. Supreme Court unanimously held that monetary damages can be awarded for sexual harassment complaints brought under Title IX of the Education Amendments of 1972.[2]

Title IX prohibits discrimination on the basis of sex in education programs and activities. Under the law, such discrimination can include sexual harassment, abuse, or violence, ranging from sexual coercion and battery up to sexual assault and rape. Compliance with title IX s a requirement for any public and private elementary, secondary school, school district, or college or university that receives federal funds.

What attorneys need to know

If you are a defense or plaintiff attorney in a case involving sexual harassment or abuse, you need to assess the strength of your case. The following information should help you do this in cases against schools and other agencies that accept federal funding.

A school or other agency has a duty to respond promptly to allegations of Title IX violations. If the school or agency has actual knowledge about sexual harassment, abuse, or violence that creates a hostile environment — or if it reasonably should know about it — then the law requires the school to put an immediate end to the behavior, take steps to prevent its recurrence, and address its effects on students and faculty. The same is true even if a child or parent chooses not to pursue legal action against the school; if the school is aware of a potential Title IX violation, it is obligated to address it. A criminal investigation into allegations of sexual abuse or harassment does not release the school from this responsibility.

A school must have procedures in place intended to prevent sexual harassment or violence. Under the law, each school is required to publish a policy barring sex discrimination in its education programs and activities. The policy must be widely distributed and available on demand. The policy also should lay out a path for dispute resolution, directing Title IX inquiries to the school’s Title IX coordinator or to the federal Department of Education’s Office of Civil Rights.

Every school must have a Title IX coordinator who is responsible for compliance with Title IX. The coordinator oversees the investigation of allegations of sexual abuse or harassment and is responsible for addressing any patterns or systemic problems that arise during the review of such complaints. Schools are required to notify students and employees who the Title IX coordinator is and how to contact this individual.

If any of the above elements are missing — or if the school failed to implement its duty to respond swiftly and effectively to a complaint — a strong case exists for the plaintiff. A simple example would be if a student told a school administrator he felt uncomfortable when a teacher rubbed his shoulders and the administrator listened but didn’t investigate the complaint and the behavior continued.

If these elements were in place at the time of the alleged harassment or abuse, and if it can be demonstrated that the school followed through immediately when a complaint was filed, then there is a strong case for the defendant.

Burden of proof in Title IX cases

If you are either an attorney considering a lawsuit against a school or an attorney responding to a lawsuit, the concept of burden of proof should be examined. The burden of proof applies to whether the school violated Title IX by behaving inappropriately — not whether students or staff engaged in sexual harassment. Students cannot violate Title IX; only schools can be sued under Title IX. Moreover, students are not agents of the school, so their actions don’t represent the actions of the school.

The mere existence of student harassment is not enough to demonstrate liability. The school’s actions in response to a complaint is key. As an example, if a student tells an administrator that a teacher fondled him, the administrator has a duty to investigate and take appropriate action. If it can be shown that there was such a report but the school administration failed to act reasonably and appropriately and the harassment continued or worsened, the school may be culpable. Title IX does not make a school responsible for students’ actions, but rather for its own actions once the school has notice of alleged sexual harassment. Inaction may constitute discrimination in violation of Title IX.

Because a school or institution itself, not the harasser, may be culpable of discrimination, federal courts have held that there is no violation of civil rights laws if harassment occurs, as long as the school or institution investigates an allegation in good faith. This is true even if the school or institution ultimately refuses to discipline a harasser on the basis of a reasonable belief that the accused is innocent.

In cases such as these, the presence of an expert witness is often critical to a determination of liability. The expert witness reviews the case and renders an opinion as to whether a school or organization acted appropriately and reasonably under the circumstances, and whether there was a breach of professional standard of care that was a proximate cause for the sexual harassment or abuse.

Summary

The unfortunate reality is that children are sexually harassed and abused by other students and staff in schools and other organizations that have a responsibility to protect them from such harm. The fact that this occurs, however, does not make an entity liable for this behavior unless it knows about it (or has reason to know) and turns a blind eye to it. The question to ask in such cases is: Did the school or agency act reasonably under the circumstances of what was known or should have been known?