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Student-on-student harassment

by David J. Welsh, Ph.D., LSSP

Most of us have heard about incidents in which children as young as first-graders were disciplined for “sexual harassment” because of seemingly innocent behaviors such as a peck on a classmate’s cheek. If you’re like me, your reaction was a mixture of amusement and amazement, and you chalked the incidents up to overreaction.

But two undeniable realities exist beyond these isolated but headline-grabbing overreactions. First, a surprising number of school-age children do report sexual harassment by peers. One 1993 survey found that as many as four out of five secondary-age students had reported incidents of sexual harassment at school. Secondly, court decisions make it clear that schools will be held accountable for addressing student-on-student sexual harassment and can be sued for damages by the victims’ parents.

One such case, Davis vs. Monroe County Board of Education, began in 1993 when a male Georgia fifth-grader subjected a female classmate to five months of verbal and physical sexual harassment. The harassment ended when the girl and her mother took criminal action against the boy. Later, they sued the school district on the grounds that its failure to take action to stop the harassment violated Title IX, the federal law that prohibits schools receiving federal funds from discriminating on the basis of sex. In May 2000, the U.S. Supreme Court handed down a landmark decision in the case. It found that schools can be held liable (and parents can sue for damages) when school officials have knowledge of student-on-student sexual harassment and fail to take reasonable steps to stop it.

The Davis decision and others like it make one thing clear: Educators have an inescapable responsibility to prevent student-on-student sexual harassment and intervene directly when it occurs. However, to be able to do that, educators must understand what kinds of behavior constitute sexual harassment.

What is student-on-student sexual harassment?
Guidelines from the U.S. Department of Education’s Office for Civil Rights (OCR) make a distinction between two types of sexual harassment: (a) quid pro quo (literally meaning “this for that”) harassment, where academic opportunities or benefits are linked with sexual conduct, and (b) hostile environment harassment, where unwelcome conduct of a sexual nature is considered so severe, pervasive and offensive that it deprives the victim of access to educational opportunities or benefits.

Given this distinction, student-on-student harassment falls into the hostile environment category, but the OCR goes to great lengths to explain that “all relevant circumstances” must be considered when determining whether or not a hostile environment exists. Such circumstances might include the type, frequency and duration of the conduct; the number of individuals involved; the ages and genders of the alleged harassers and victims; and the size of the school, locations of the incidents, and context in which they occurred. The OCR stresses the importance of using “common sense and judgment” in defining sexual harassment so that schools do not overreact to simple acts of childish behavior or immature conduct.

So what behaviors might constitute peer-on-peer sexual harassment? According to the OCR, if male students repeatedly taunt a female peer about her breasts, it might constitute a hostile environment. However, a comment from one student to another indicating that she has a nice figure probably does not. Similarly, a simple request for a date would not create a hostile environment, but persistent requests in an intimidating or threatening manner might.

What can educators do?
When students behave toward each other in ways that might be considered sexual harassment (meaning the behavior might deprive a student of the opportunity to fully benefit from the educational program), one conclusion seems inescapable: Doing nothing is always the wrong response! Everyone in the school building—teachers, paraprofessionals, counselors, coaches, nurses and principals—has a responsibility to be aware, informed and responsive. Beyond the administrative safeguards of written policies and procedures pertaining to sexual harassment, educators should consider the following suggestions:

  1. Be aware of your district’s policies and procedures pertaining to sexual harassment of students by students. Who is in charge of investigating allegations, and what is the procedure for filing a grievance?
  2. Send a clear and consistent message to your students that you will not tolerate harassment. When you see such behavior occurring, tell the offender to stop and take appropriate disciplinary action.
  3. If a student reports harassment, pay attention! Don’t minimize the student’s concerns or justify the behavior of the harassers. Avoid making statements such as “Boys will be boys,” or “You need to learn how to stand up for yourself.” Report all such complaints to the appropriate administrator and document that you’ve done so.
  4. If necessary, provide increased adult supervision of activities or environments in which incidents have occurred. Extra precautions might also be necessary in order to prevent reprisals against the victim.
  5. Incorporate age-appropriate lessons into the curriculum to increase awareness of sexual harassment and promote respect for others. One excellent resource is a videotape series called Flirting or Hurting? produced by the WGBY television station and the Wellesley College Center for Research on Women. To order a copy, call (800) 228-4630 or check out the online teacher’s guide at www.wgby.org/edu/flirt.

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The legal information provided on this website is for general purposes only. It is not intended as a substitute for individual legal advice or the provision of legal services. Accessing this information does not create an attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our online system, MLSIS.
 

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