Ending Sexual ENFORCEMENT IS KEY

ARASSMENT well as legal remedies, have resulted in orga- AFFECTS STUDENTS’ nized efforts by schools to curb such harass- WELL-BEING AND ment. Nonetheless, sexual and -based their ability to succeed harassment remain pervasive problems in K-12 Hacademically. Supreme schools and on college campuses. Court rulings have established that sexual harassment of students While sexual harassment disproportionately constitutes in and affects and women, studies show that boys violates Title IX. and men also experience harassment. When any students experience sexual or gender-based Efforts to address -based harassment have harassment on campus or in the classroom, the increased as knowledge of this issue has spread. hostile environment created by such conduct In particular, awareness campaigns by educa- can undermine educational opportunities for tional institutions and Title IX advocates, as those students and their peers.

What Constitutes Harassment? Harassment can take many forms. It includes physically threatening, harmful, or humiliating. verbal acts like name-calling, posting of Harassment of students may come from other inappropriate images and graphics, writ- students or from school employees such as ten statements, or other actions that may be teachers, coaches, or other staff. To constitute

Title IX at 40 | 37 KEY FINDINGS sexual harassment, the conduct must be of a sexual or gender-based nature.

1. Any form of harassment based on sex is unlawful under Title IX, including harassment based on gender WHEN HARASSMENT INVOKES TITLE IX stereotypes. The applies whether the harassment Harassment prohibited by Title IX includes involves students of the opposite or of the same sex, and any unwelcome or unwanted behavior based whether it is conducted in person, online, or through on sex, including conduct of a sexual nature. other media. It also can include harassment of a student because he or she does not conform to stereo- 2. Despite efforts to curb sexual harassment, includ- typical notions of or , ing , this form of discrimination is such as harassment of a male student because still prevalent in schools and on college campuses. he is on the dance team or exhibits effeminate Both male and female students report being sexually mannerisms, or harassment of a female student harassed, with consequences that can undermine their because she takes shop class or wears short hair academic success. and baggy clothes. Although Title IX does not 3. More than half of girls and 40% of boys in grades 7 specifically prohibit discrimination on the basis through 12 reported being sexually harassed during of or gender identity, when UIFoTDIPPMZFBS"NPOHMFTCJBO HBZ CJTFYV- lesbian, gay, bisexual, or transgender (LGBT) al, and transgender students, harassment is even more students are subjected to harassment because of FYUFOTJWFTBZUIFZIBWFCFFOWFSCBMMZIBSBTTFE  failure to conform to gender stereotypes, Title BOESFQPSUQIZTJDBMBTTBVMU IX applies.

4. Being called gay or lesbian in a negative way is a Title IX’s protection extends to sexual harass- common form of harassment in middle and high ment in all of a school’s programs or activities, schools. Boys and girls were equally likely to experience whether the harassment occurs on school UIJTGPSNPGIBSBTTNFOUJOo  BMUIPVHI property, on a school bus, or at an off-site - SFBDUJPOTEJòFSFE XJUIPGCPZTBOEPGHJSMTJEFO school event. Schools are obligated to respond tifying it as their worst experience with harassment. to sexual harassment charges if the conduct 5. Nearly two-thirds of college students aged 18–24 is severe or pervasive enough that it creates a experience some form of sexual harassment. The hostile school environment—meaning that it numbers for men and women are similar, although interferes with or limits a student’s ability to women report greater emotional and educational dis- participate in or benefit from school, including ruption from harassment. all activities and services.

6. When sexual harassment occurs, Title IX requires that Harassment does not have to include intent schools take immediate, effective action to eliminate to harm or be directed at a specific target. The the hostile environment, prevent its recurrence, and harasser and the victim do not have to be of the remedy the effects on the victim. These steps are essen- opposite sex, and the harassment does not need tial for creating an environment in which all students can to take the form of a sexual advance. succeed. Any form of , including , constitutes sexual harassment and is covered under Title IX as well as other statutes. The U.S. Department of Education’s Office for Civil Rights (OCR), which enforces Title IX, recently

38 | Title IX at 40 reaffirmed in its April 2011 Guidance that rape is always severe enough to create a hostile school environment.1

A school- or district-wide anti- policy does not free a school from complying with Title IX. Regardless of any policies in place, if sexual or gender-based harassment is suffi- ciently severe, pervasive, or persistent, a school is obligated under Title IX to take effective steps to end the harassment.

BULLYING, CYBERBULLYING, AND SEXUAL HARASSMENT Many forms of bullying, including and girls,” when severe, can actually be prohibited cyberbullying, constitute sex-based harass- harassment. ment that is prohibited under Title IX. Such harassment includes demeaning a student In order to clarify schools’ obligations under because of his or her gender or sexual activity. Title IX with regard to harassment, OCR issued For example, harassment may include com- a Guidance document in October 2010 specify- mon behaviors such as using cell phones or ing that Title IX prohibits sex-based bullying the Internet to target students by calling them and harassment that interferes with a student’s sexually charged epithets like “slut” or “whore”; education, whether it is conducted in person or spreading sexual rumors; rating students on in electronic form. The Guidance states, “bully- sexual activity or performance; disseminat- ing fosters a climate of fear and disrespect that ing compromising photographs of a student; can seriously impair the physical and psycho- or circulating, showing, or creating emails or logical health of its victims and create condi- websites of a sexual nature. Conduct often tions that negatively affect learning, thereby dismissed as just “boys being boys” or “mean undermining the ability of students to achieve their full potential.”2

Scope of Harassment at the K-12 Level Bullying and other forms of harassment are ELEMENTARY SCHOOL prevalent in schools. Recent surveys have A 2010 nationwide survey of more than 1,000 found that both male and female students are students and 1,000 teachers at elementary affected in large numbers, although girls face schools, conducted by the Gay, Lesbian and harassment more frequently than boys. Harass- Straight Education Network (GLSEN), found ment can have serious emotional consequences that sexual harassment is common even though for these students; it can also cause educational most schools have anti-bullying and/or anti- problems such as difficulty concentrating on harassment policies in place:4 schoolwork, , and poor academic t ćSFFRVBSUFSTPGBMMFMFNFOUBSZTDIPPM performance.3 students (75%) reported that students at their school are called names, made fun of, or bul- lied with at least some regularity.

Title IX at 40 | 39 SEXUAL HARASSMENT RESOURCES t/FBSMZIBMGPGBMMUFBDIFST  SFQPSUFE that they hear students make sexist remarks Crossing the Line: Sexual Harassment at School. at their school. American Association of University Women (AAUW). http://www.aauw.org/learn/research/crossingtheline.cfm/. MIDDLE AND HIGH SCHOOL Sexual harassment is part of everyday life at Title IX Protections from Bullying & Harassment in many middle and high schools. A nationally School: FAQs for Students. /BUJPOBM8PNFOT-BX$FOUFS representative survey of 1,965 students in (NWLC). Available at http://www.nwlc.org/resource/title-ix- grades 7–12 found that nearly half of stu- protections-bullying-harassment-school-faqs-students. dents (48%) experienced some form of sexual Cyberbullying and Sexual Harassment: FAQs about harassment during the 2010–2011 school year.5 Cyberbullying and Title IX. NWLC. Available at http://www. The majority of those students (87%) said it nwlc.org/resource/cyberbullying-and-sexual-harassment- had a negative effect on them. Nearly all the faqs-about-cyberbullying-and-title-ix/. behavior documented in the survey was peer- to-peer sexual harassment. Harassment Is Sexual Harassment: FAQs about Title IX and Pregnancy Harassment. NWLC. Other findings include the following: Available at http://www.nwlc.org/sites/default/files/pdfs/ titleixpregnancyharassmentfactsheet.pdf. t(JSMTXFSFTJHOJĕDBOUMZNPSFMJLFMZUIBO boys to face sexual harassment, although the Drawing the Line: Sexual Harassment on Campus. AAUW numbers for both were high, with 56% of Educational Foundation. Available at http://www.aauw.org/ girls and 40% of boys reporting that they had learn/research/upload/DTLFinal.pdf. been sexually harassed. Harassment-Free Hallways: How to Stop Sexual t4FYVBMIBSBTTNFOUCZUFYU FNBJM 'BDFCPPL  Harassment in School. AAUW Educational Foundation. or other electronic means affected 30% of Available at http://www.aauw.org/learn/research/upload/ all students. Many of the students who were completeguide.pdf. sexually harassed through cyberspace were also sexually harassed in person. t7FSCBMIBSBTTNFOUXBTUIFNPTUGSFRVFOUMZ cited behavior, reported by 46% of girls and t /FBSMZIBMGPGFMFNFOUBSZTDIPPMUFBDIFST 22% of boys. Physical harassment was also (47%) believe that bullying, name calling, or disturbingly common, particularly among harassment is a very serious or somewhat girls. Unwelcome touching was reported by serious problem at their school. 13% of girls and 3% of boys, while 4% of girls t 4UVEFOUTXIPEPOPUDPOGPSNUPUSBEJUJPOBM and less than 1% of boys said they had been gender norms are more likely than others forced to do something sexual. to say they are called names, made fun of, t #FJOHDBMMFEHBZPSMFTCJBOJOBOFHBUJWF or bullied at least sometimes at school (56% way was reported by girls and boys in equal versus 33%). numbers (18%), although reactions differed, t 0OFUIJSEPGTUVEFOUT  IBWFIFBSELJET with 21% of boys and 9% of girls identifying at school say that girls should not do or wear it as their worst experience with harassment. certain things because they are girls. Even t ćFTVSWFZSFWFBMFEBDZDMFPGIBSBTTNFOU  more (39%) have heard their peers say that with many victims reporting that they vic- boys should not do or wear certain things timized others. Most students who admitted because they are boys. to sexually harassing another student (92% of

40 | Title IX at 40 girls and 80% of boys) were targets of sexual t .PSFUIBOPOFUIJSEPGUIFTFTUVEFOUT   harassment themselves. were physically harassed (e.g., pushed or shoved) at school in the past year because HARASSMENT OF LGBT STUDENTS of their sexual orientation, and 27% were Another national survey looking specifically physically harassed because of their gender at the experiences of LGBT students in sixth expression. through twelfth grades found that the over- t 0OFJOĕWF  XFSFQIZTJDBMMZBTTBVMUFE whelming majority of these students face some (e.g., punched, kicked, injured with a form of sex-based harassment:6 weapon) because of their sexual orientation, t /FBSMZ OJOF PVU PG UFO -(#5 TUVEFOUT  and 13% because of their gender expression. were verbally harassed at school because of t .PSFUIBOIBMGPG-(#5TUVEFOUT  XFSF their sexual orientation; 64% were harassed harassed or threatened by their peers via because of their gender expression. electronic media.

Sexual Harassment on College Campuses Sexual harassment is prevalent on college ing a campus environment that is free from campuses and can prevent students, both male bias and harassment is important both for and female, from receiving the full social and ensuring success in education and for shaping academic benefits of higher education. Creat-

Effects of Sexual Harassment on the Educational Experience of College Students, by Gender

48% Avoided the person that bothered or harassed them 26% 27% Stayed away from particular buildings or places on campus 11% Found it hard to study or pay attention in class 16% 8% Had trouble sleeping 16% 6% Got someone to protect them 16% 4% Changed their group of friends 12% 7% 13% Lost their appetite/not interested in eating 4% MaleMale 10% $13.87 Female Did not participate as much in class 6% 9% Male Stopped attending a particular activity or sport 5% FemaleF 9% Skipped a class or dropped a course 4%

0% 10% 20% 30% 40% 50%

NOTE: Base = Respondents who experienced harassment SOURCE: AAUW Educational Foundation, Drawing the Line: (n=1,225); 659 female and 556 male college students ages 18–24. Sexual Harassment on Campus, 2005.

Title IX at 40 | 41 the attitudes and behaviors that will govern the ferent responses. Women are more likely to nation’s future workforce and broader society. be upset, angry, or afraid after being sexually harassed, and are also more likely to drop a A research report from the American Associa- class, avoid an area or activity, or otherwise tion of University Women, Drawing the Line: change their behavior in ways that affect Sexual Harassment on Campus,7 found that their educational experience. sexual harassment on campus is widespread yet t .FOBSFNPSFMJLFMZUIBOXPNFOUPIBSBTT  often goes unreported: although substantial numbers of both t /FBSMZUXPUIJSETPGDPMMFHFTUVEFOUT JODMVE- are involved; 51% of male students admit ing 62% of women and 61% of men, experi- to sexually harassing someone in college, ence some type of sexual harassment. compared with 31% of female students. t 'FXFSUIBOPGUIFTFTUVEFOUTUFMMB A campus culture that tolerates inappropriate college or university employee about their verbal and physical contact and that intention- experiences, and an even smaller number ally or unintentionally discourages reporting report them to a Title IX coordinator. these behaviors undermines the emotional, intellectual, and professional growth of millions t -(#5TUVEFOUTBSFNPSFMJLFMZUPCF of young adults and violates Title IX. Sexual harassed; nearly three-quarters (73%) say harassment on campus takes an especially they have experienced sexual harassment on heavy toll on young women, making it harder campus. for them to get the education they need to take t .FOBOEXPNFOBSFFRVBMMZMJLFMZUPCF care of themselves and their families in today’s harassed, but in different ways and with dif- economy.

Middle and High School Students Speak: Emotional Impact of Sexual Harassment Title IX Protection Against Sex-Based Harassment “I felt threatened for my personal safety.” –9th-grade boy ENFORCEMENT AND REDRESS In 1992, the Supreme Court recognized that “Very scared.” sexual harassment is a type of sex discrimi- –10th-grade , on being touched nation prohibited by Title IX and held that in an unwelcome, sexual way monetary damages are available in an action brought to enforce Title IX.8 In the 1998 case of “Everyone was saying I was gay, and I felt the need to run away Gebser v. Lago Vista School District, the Court and hide.” established the standard for recovering dam- ages in a harassment case: A harassed student –9th-grade boy must show that a school official with authority to take corrective measures had “actual knowl- “I thought of .” edge” of the harassment and responded with –8th-grade girl, on being the target of sexual rumors “deliberate indifference”—a higher standard than exists for employees who are sexually i"OUIHSBEFHVZQBTTFECZNFBOETBJE SFBMMZTPGUMZ A8IBUT harassed.9 VQ TFYZ BOEUIFOLFQUPOXBMLJOH*USFBMMZDSFFQFENFPVUw –7th-grade girl A year later, in Davis v. Monroe County Board of Education, the Supreme Court ruled that SOURCE: AAUW. Crossing the Line: Sexual Harassment at School, 

42 | Title IX at 40 schools may also be liable for damages under College Students Speak: Title IX for peer-on-peer harassment. To Educational Impact of Sexual Harassment recover damages, the harassed student must “I felt violated and could not focus on my classes. I also felt show that the school had actual knowledge of limited in where I could go on campus.” the harassment and responded with deliberate – Female, 4th year indifference, and that the harassment was “so severe, pervasive, and objectively offensive that “They [harassers] distract from the working environment and it can be said to deprive the victims of access make it harder to concentrate because you become paranoid.” to the educational opportunities or benefits provided by the school.”10 The Court made – Male, no year given clear that these standards are limited to private actions for monetary damages.11 “It makes me feel very uncomfortable and it affects my willing- ness to accept the advice or lectures offered by professors.” In addition to filing a for damages, a – Female, 4th year student who has been harassed can file a suit for injunctive relief or seek a remedy from i*OTDIPPMJGZPVMFUUIJOHTHFUUPZPV ZPVBSFOUBCMFUPQFS- OCR. OCR has repeatedly made clear in its GPSN#FTUUIJOHJTUPKVTUTIBLFJUPòBOELFFQHPJOHw Guidance documents that if a school knows, or – Male, no year given should know, that a hostile environment exists, it is “responsible for taking immediate effective “I felt uncomfortable and did not want to be in class.” action to eliminate the hostile environment – Female, no year given and prevent its recurrence.” A school also has a responsibility “to remedy the effects on the SOURCE: AAUW Education Foundation. Drawing the Line: Sexual Harassment victim that could reasonably have been pre- on Campus,  vented had the school responded promptly and effectively.”12

In 2009, in a unanimous decision, the Supreme nondiscrimination, designate at least one Court clarified that Title IX is not the exclusive employee to coordinate its efforts, and adopt mechanism for addressing gender discrimi- and publish grievance procedures for prompt nation in schools.13 Plaintiffs are also able to and equitable resolution of complaints of sex bring suits under 42 U.S.C. § 1983 for gender discrimination, including sexual harassment discrimination in schools that violate the Equal and sexual violence. Protection Clause, so multiple avenues of relief 2. Schools must ensure that their employees are exist for those who have experienced discrimi- trained to identify harassment and report it nation in education on the basis of sex.14 to appropriate school officials. In addition, schools must provide so officials REQUIRED PROCEDURES FOR with the authority to address harassment RESPONDING TO HARASSMENT know how to respond properly. An April 2011 Guidance document from OCR 3. When a harassed student or other party files noted the seriousness of sexual harassment, a complaint, the school must investigate including sexual violence, and spelled out Title the allegations in a prompt, thorough, and IX’s procedural requirements for schools in impartial way. Both parties must have an responding to reported incidents:15 to present witnesses and 1. Institutions covered by Title IX are required other evidence. In determining whether to create and widely distribute a notice of sexual harassment occurred, the school must

Title IX at 40 | 43 use the “preponderance of directly with the alleged perpetrator. In cases the evidence” standard of of sexual assault, even voluntary is proof; in other words, the not appropriate. complainant must show that 5. Both parties must be notified in writing it is more likely than not about the outcome of the complaint and any that the sexual harassment appeal. occurred. To create a school environment in which all 4. It is improper for a school students can succeed, students must feel com- to require a student who fortable acknowledging and reporting harass- complains of harassment ment, and schools must respond in accordance to work out the problem with Title IX requirements.

NCWGE Recommendations t$POHSFTTTIPVMEFOBDU technological developments affecting cyber- legislation to ensure that stu- bullying and harassment. dents receive the same level t &EVDBUJPOBMJOTUJUVUJPOTBUBMMMFWFMTTIPVME of protection from harass- create clear and accessible sexual harassment ment in school that employ- policies to protect and educate students. ees receive in the workforce. Schools, like These policies should be part of school employers, should be obligated to prevent discipline policies and codes of conduct and harassment and to address any harassment should include provisions for effectively that they know about, or should know about. protecting students after harassment has Also, harassment should be deemed to create occurred.16 These policies also should protect a hostile environment when it is sufficiently against harassment based on actual or per- severe or pervasive to deny a victim access to ceived LGBT status. the educational opportunities and benefits provided by the school. t 5JUMF*9DPPSEJOBUPSTBOEUIFJSSFTQFDUJWF schools/universities should proactively dis- t $POHSFTTTIPVMEQBTTUIF4UVEFOU/PO seminate information and conduct Discrimination Act, which would establish in the school and campus community to a federal ban on discrimination and harass- ensure that students and employees are aware ment in public K-12 schools based on a of sexual harassment policies, as well as the student’s actual or perceived sexual orienta- school’s process for filing complaints. tion or gender identity. Congress should also pass the Safe Schools Improvement Act, t 4DIPPMTNVTUTBGFHVBSEIBSBTTNFOUWJDUJNT which would require schools and districts by providing close follow-up, including to develop comprehensive student conduct working with victims’ families, until the policies that include clear prohibitions danger of continued harassment has passed. regarding bullying and harassment. t 4UVEFOUT GBDVMUZ TUBČ BOEQBSFOUTHVBSE- t 0$3TIPVMEDPOEVDUQVCMJDFEVDBUJPOBOE ians should talk openly about attitudes and technical assistance activities to guide school behaviors that promote or impede progress districts in their efforts, particu- toward a harassment-free climate in which larly in light of the October 2010 and April all students can reach their full potential. 2011 Guidance documents issued and recent

44 | Title IX at 40 References 1. U.S. Department of Education Office for Civil 10. Davis v. Monroe County Board of Education, Rights (OCR), Dear Colleague Letter on Sexual 526 U.S. 629, 650 (1999). Harassment and Sexual Violence (April 4, 2011). 11. Ibid. at 639; Gebser, 524 U.S. at 283. Available at http://www2.ed.gov/about/offices/list/ ocr/letters/colleague-201104.pdf/. 12. OCR, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other 2. OCR, Dear Colleague Letter on Bullying and Students, or Third Parties, Title IX (January 19, Harassment (Oct. 26, 2010). Available at http:// 2001). Available at http://www.ed.gov/about/offices/ www2.ed.gov/about/offices/list/ocr/letters/col- list/ocr/docs/shguide.html/. league-201010.pdf/. 13. Fitzgerald v. Barnstable School Committee, 555 3. D.J. Chesire. Test of an Integrated Model for U.S. 246, 25–59 (2009). High School Sexual Harassment (Doctoral disserta- tion). 2004. Available from Proquest Dissertations 14. Although the facts of the Fitzgerald case had and Theses database (UMI No. 3196663). to do with sexual harassment, the Supreme Court’s holding applies more broadly to all types of cases 4. Gay, Lesbian and Straight Education Network regarding sex discrimination in schools. (GLSEN), Playgrounds and Prejudice: Elementary School Climate in the . 2012. http:// 15. OCR, Dear Colleague Letter on Sexual Harass- www.glsen.org/binary-data/GLSEN_ATTACH- ment and Sexual Violence (April 4, 2011). Available MENTS/file/000/002/2027-1.pdf/. at http://www2.ed.gov/about/offices/list/ocr/letters/ colleague-201104.pdf/. 5. American Association of University Women (AAUW). Crossing the Line: Sexual Harassment at 16. AAUW Educational Foundation, Harassment School. 2011. http://www.aauw.org/learn/research/ Free-Hallways: How to Stop Sexual Harassment in crossingtheline.cfm/. School (2004). Available at http://www.aauw.org/ learn/research/upload/completeguide.pdf. 6. GLSEN, The 2009 National School Climate Survey. http://www.glsen.org/binary-data/GLSEN_ ATTACHMENTS/file/000/001/1675-2.pdf/. 7. AAUW Educational Foundation, Drawing the Line: Sexual Harassment on Campus, 2005. Avail- able at http://www.aauw.org/learn/research/upload/ DTLFinal.pdf/. 8. Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). 9. Gebser v. Lago Vista Independent School Dist. 524 U.S. 274 (1998).

Title IX at 40 | 45