Sexual Harassment, Title IX, and the Supreme Court
Under Title IX of the Education Amendments of 1972, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....”
The Supreme Court did not address a case on the merits of Title IX and sexual harassment in K-12 education until 1990’s Franklin v. Gwinnett County Public Schools. Franklin involved a high school sophomore in Georgia with whom a male teacher developed a “special” friendship by having private meetings with her, allowing her to enter classes late, and engaging her in sexually oriented conversations.
According to a 2022 study, 11.7% of recent high school graduates reported having been victims of misconduct by educators, including inappropriate comments and sexual relationships.
During this time, the student’s boyfriend notified the teacher’s supervisor (the school’s band director) about the teacher’s conduct to no avail. At least one student who informed an assistant principal about the teacher’s behavior was admonished for doing so. The teacher ultimately subjected the student to three acts of “coercive intercourse” at school.
When informed of the teacher’s actions, administrators discouraged the student from pursuing her complaint due to the negative publicity it might have caused. At the same time, the band director attempted to dissuade her from speaking out. Officials began investigating the student’s charges but discontinued doing so when the teacher resigned at the end of the school year, and the band director voluntarily retired.
In an unreported order, a federal trial court and the Eleventh Circuit rejected the student’s claim, and the Supreme Court unanimously reversed in her favor. The court expanded the scope of Title IX, interpreting it as implying a private right of action allowing her to sue for financial damages.
Although Franklin does not set clear standards for establishing liability, it is important because, with it, the Justices enabled the students and others to pursue Title IX claims on the basis that denying them opportunities to do so would have left them without legal recourse.
Gebser v. Lago Vista Independent School District arose when a teacher in Texas made sexually suggestive comments to a middle school student who had joined the book discussion club the teacher sponsored. The teacher later initiated sexual contact with the student after visiting her home on the pretext of giving her a book, eventually regularly engaging her in sexual relations, always off school property. The student did not complain because she was uncertain about what to do and wished to continue having the teacher for the class.
More than a year later, when a police officer discovered the teacher and the student, who was then in high school, engaged in sexual relations, the teacher was arrested. Unlike in Franklin, board officials promptly fired the educator and revoked his teaching license. When the student and her mother filed suit seeking monetary damages under Title IX for the teacher’s misbehavior, a federal trial court, in an unreported order, and the Fifth Circuit rejected their claims.
On appeal in 1998, the Supreme Court affirmed that the board was not liable. Creating a two-part test, the Justices ruled that boards cannot be liable unless an official with the authority to institute corrective measures had actual notice of and was deliberately indifferent to such misconduct. The Court concluded that because the board promptly and decisively punished the teacher, the student and her mother could not proceed with their claim.
Recommendations for Practice
SBOs, their boards, and other education leaders may wish to consider the following suggestions when devising written, up-to-date directives explaining proper educator behavior. Policies should:
- Prohibit all forms of educator misconduct, clearly and unambiguously banning sexually related contact with students, whether verbal, physical, or electronic, such as photographs, and sexually offensive notes or letters, whether hard copy or electronically.
- Include procedures by which students can file complaints by: (1) using clear, specific language on how and with whom they can file complaints; (2) identifying multiple persons with whom complaints can be lodged to ensure that the accused is not the party with whom a complaint must be filed; and (3) ensuring that the accused receive procedural due process with the presumption of innocence.
- Ensure that investigations are completed in a fair and timely fashion by (1) establishing time frames within which complaints must be filed and hearings conducted, consistent with procedures in staff handbooks; (2) identifying who chairs and serves on review panels; (3) describing the parties’ rights of access to documentary evidence and witnesses; (4) addressing the right to call and cross-examine witnesses as well as to present evidence; (5) explaining appeals procedures; and (6) including assurances safeguarding the privacy rights of all parties.
- Identify progressive sanctions up to and including dismissal, depending on the nature of the misconduct, consistent with procedures in faculty and staff codes of conduct.
- Be included in faculty, staff, student handbooks, school websites, and materials sent home to parents.
- Mandate professional development for staff to make them more aware of how to address and avoid incidents of sexual harassment.
- Require age-appropriate instruction for all students to teach them how to protect themselves.
- Offer sessions to parents and community members on how educators are taking steps to protect their students.
These policies and procedures should be reviewed regularly to ensure they are up-to-date with the latest federal and state law developments.