Perspective: Student-on-student sexual harassment 

Your personnel can be the first line of defense—or liability

Frances E. Rogers ( frogers@lcwlegal.com ) is an associate with Liebert Cassidy Whitmore ( www.lcwlegal.com ), an education, labor and employment law firm.

Last school year seemed to be a particularly troubling one, in which the media were replete with instances of student-on-student harassment and hazing. In some instances, unfortunately, the incidents ended in death or serious injury. No school board member, administrator, teacher or coach wants to see a student suffering from the taunts of the student’s peers, but with budget cutbacks, reductions in force and increased class size, it’s no wonder that our teachers and administrators are stretched too thin to easily identify, investigate, and remedy student-on-student harassment.

But school districts must beware: We have yet to see a case where a court, and more important, a jury, has sided with a district where one of its officials had actual knowledge of student-on-student sexual harassment but failed to take any steps to address it simply because of the district’s economic realities. There has been an evolution in the case law over the last 11 years since the U.S. Supreme Court decision in Davis v. Monroe County Board of Education. Moreover, there has been a tremendous increase in litigation against districts for alleged failures to adequately address student-on-student sexual harassment brought under Title IX of the Educational Amendments of 1972.

The Supreme Court didn’t intend to open the floodgates of liability for districts based on student-on-student harassment. Indeed, for all intents and purposes the legal standard would appear rather high. In order to impose liability under Title IX for student-on-student sexual harassment the following elements must be met: 1) the district must exercise substantial control over both the student-victim and the context in which the known harassment occurs; 2) the victim must suffer harassment that is sexual in nature and that is so severe, pervasive and objectively offensive that it deprives the victim of access to the educational opportunities or benefits provided by the school; 3) the district must have actual knowledge of the harassment; and 4) the district must be so deliberately indifferent that the harassment continues.

It is because of this ostensibly high legal standard that, once litigation begins, districts often seek a summary judgment or similar legal procedure to dismiss the case as not rising to the level of actionable student-on-student sexual harassment. In doing so, the district seeks to avoid the unbridled passions of a jury.

However, if a district is not lucky enough to have a case dismissed as a matter of law from the outset, the chances of succeeding at trial are greatly diminished. Jury awards are staggering in cases of student-on-student sexual harassment. Juries can easily be so moved by the cruelty of students in some cases that passion overtakes reason in considering whether the district itself should be liable for the conduct of its students. To take a case in point: A Michigan jury had awarded a student $800,000 last year for sexual harassment and assault at the hands of other students before a federal court set aside the verdict. That court acted in part because the jury’s finding that the sexual harassment violated Title IX was against the great weight of evidence.

The lesson for school boards here: Don’t let the case get to a jury. Better yet, don’t let it get to court in the first place. Several preventative measures that school boards and administrators can take now could mean the difference between dismissal of a case as a matter of law and facing the disdain of a compassionate jury. As case law reveals, these measures can even help prevent a Title IX student-on-student sexual harassment claim from proceeding. Even more important: Preventative measures like these can help address sexual harassment at an early stage, thereby hopefully lessening student exposure to painful harassment by peers.

1. Think of district personnel, particularly teachers and coaches, as your first line of defense—or your first line of liability. This is probably the single most important consideration. In order for a district to be liable for student-on-student sexual harassment, an official who has authority to address the alleged discrimination and to institute corrective measures on the district’s behalf must have actual knowledge of the harassment. Federal courts, including those in California, recognize that personnel duties can vary from district to district; therefore, determining whether an official with actual knowledge of alleged harassment had authority to address it may be a fact-based inquiry—that is, a question for the jury. Why risk letting jurors decide that? Instead, Those personnel whose duties include supervising or working directly with students must be equipped with the tools to identify and address student-on-student sexual harassment. This means having written relevant policies and procedures in place. It also means training, training, training.
2. Have written policies and procedures for personnel and students alike. One of the most basic measures a district can take is to ensure that it has a comprehensive anti-discrimination and anti-harassment policy that includes up-to-date procedures for reporting and investigating, one that provides guidance to personnel, parents and students alike. Indeed, these written policies and procedures are required under the Education Code. Written policies and procedures must also be brought to the attention of everyone. Set aside a time and place to discuss the policies and procedures with personnel and a time and place to discuss them with students and with their parents. At a minimum, ensure that the district is complying with the mandates of Education Code sections 231.5 and 48980.
3. Investigate early and often. Districts may be liable for student-on-student harassment if an official with authority to address the alleged harassment has actual knowledge of the harassment but still fails to take corrective measures. The actual knowledge standard does not mean that what the district does not know cannot hurt it. The actual knowledge standard also does not mean that the official must have actual knowledge that the taunting or harassment is specifically sexual in nature. The test is whether the appropriate official possessed enough knowledge of the harassment that he or she reasonably could have responded with remedial measures to address the kind of harassment upon which the student’s legal claim is based. Do not rest the fate of your case on the one question of whether district personnel had actual knowledge of student-on-student harassment. It is better to show that the district investigated and remedied early and often, because courts will rarely second-guess a district’s choice of remedies to address student harassment as long as the choice was not clearly unreasonable. Designate at least one staff member (maybe more, depending on the size of district) who is specifically trained in investigating student-on-student harassment and whose job duties include such investigation. Train all other personnel to identify potential harassment and instruct them to make prompt, immediate reports to the designated investigator.
4. Don’t wait for harassment to rise to the level of being legally actionable. While it is true that legal liability does not attach unless or until the harassment is either singularly egregious or severe and pervasive, this does not mean that a district can simply dismiss lesser forms of harassment until they rise to that level. Courts are likely to dismiss an action where the facts, as alleged by the student-victim, are not sufficiently, objectively severe and pervasive to impose liability under Title IX. By interceding early, investigating, and taking action where appropriate, districts can prevent the harassment from rising to the level where liability can be imposed.
5. If the corrective measure fails, try, try again. A school district is not deliberately indifferent to known student-on-student harassment if it takes a remedial measure that is not clearly unreasonable. This does not mean that the district’s duty is discharged as long as some corrective measure is implemented. If the district has actual knowledge that the corrective measure has failed to remedy the student-harasser’s conduct, the district may be considered deliberately indifferent if it fails to take another measure to address the recidivism. Pay attention to whether a corrective measure has ended the harassment, and take action immediately if the corrective measure has failed.

Sadly, taking these measures will not eradicate student-on-student harassment in our schools. It can and will still happen. However, measures such as these can help to prevent liability and in some cases even prevent a claim from reaching a jury.