Cleveland State Law Review Volume 55 Issue 4 Article 9 2007 Overcoming a Hostile Work Environment: Recognizing School District Liability for Student-on-Teacher Sexual Harassment under Title VII and Title IX Heather Shana Banchek Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Education Law Commons How does access to this work benefit ou?y Let us know! Recommended Citation Note, Overcoming a Hostile Work Environment: Recognizing School District Liability for Student-on- Teacher Sexual Harassment under Title VII and Title IX. 55 Clev. St. L. Rev. 577 (2007) This Note is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. OVERCOMING A HOSTILE WORK ENVIRONMENT: RECOGNIZING SCHOOL DISTRICT LIABILITY FOR STUDENT- ON-TEACHER SEXUAL HARASSMENT UNDER TITLE VII AND TITLE IX * HEATHER SHANA BANCHEK I. INTRODUCTION .................................................................... 578 II. BACKGROUND...................................................................... 581 A. Current Climate of U.S. Schools.................................. 581 B. Statutory Protections .................................................. 583 1. Title VII of the Civil Rights Act of 1964 ............. 583 2. Title IX of the Educational Amendments of 1972.................................................................. 585 C. Sexual Harassment: Definitions and Types................. 585 1. Quid Pro Quo Sexual Harassment ....................... 585 2. Hostile-Work-Environment Sexual Harassment ........................................................... 586 3. Sexual Harassment in School Settings ................. 588 4. Administrative Guidelines ...................................589 5. Court Adoption of the Guidelines ....................... 590 D. Sexual Harassment Laws: Application to Student-on-Teacher Sexual Harassment...................... 592 III. WHERE WE ARE TODAY...................................................... 593 A. Employers May Be Liable for Non-Employee-on-Employee Sexual Harassment....... 594 B. Schools May Be Liable for Teacher-on-Student Sexual Harassment...................................................... 596 C. Schools May Be Liable for Student-on-Student Sexual Harassment...................................................... 597 D. Schools May Be Liable for Student-on-Teacher Harassment................................................................... 598 1. Plaza-Torres Analysis.......................................... 599 2. Policy Considerations........................................... 601 IV. RECOMMENDATIONS............................................................ 602 A. Revise School Anti-Harassment Policies..................... 602 * Ms. Banchek graduated from Cleveland-Marshall College of Law in May 2007. She would like to thank Professors Kathleen C. Engel, Sandra J. Kerber and Barbara Tyler for all of their help throughout the writing process. She would also like to thank her husband Scott and the rest of her family and friends for their support. 577 Published by EngagedScholarship@CSU, 2007 1 578 CLEVELAND STATE LAW REVIEW [Vol. 55:577 B. Develop Proactive Training Programs for School Communities.................................................... 604 C. Enact State Legislation................................................ 604 V. CONCLUSION........................................................................ 605 I. INTRODUCTION In October of 2000, Henar Plaza-Torres was excited to begin a teaching career with Petra Roman Vigo School in Puerto Rico as a junior-high school mathematics teacher.1 A mere four months later, in February of 2001, Ms. Plaza-Torres resigned because she could not endure the continuous sexual harassment by two of her students.2 Ms. Plaza-Torres had reported the incidents of sexual harassment to her school administration over a two month period, but the school refused to exercise its authority to discipline the students and prevent their continued misbehavior.3 Ms. Plaza-Torres filed a complaint in the U.S. District Court in Puerto Rico, which alleged that the school lacked an anti-harassment policy to adequately address student-on-teacher sexual harassment, and that certain school officials failed to take appropriate remedial measures to correct the sexual harassment and hostile work environment that led to her constructive discharge.4 Ms. Plaza-Torres is not alone. Unfortunately, specific studies on the prevalence of sexual harassment of teachers by students are limited due to the relatively recent recognition of the problem. By analogy, however, studies that indicate that respect for authority is declining among teenagers provide helpful indications of possible causes of the problem.5 For example, one study conducted in 1997 revealed that six percent of elementary school teachers, twenty-three percent of middle school teachers, and twenty percent of high school teachers reported experiencing verbal abuse from students.6 Another study conducted in 1999 revealed that “19 [sic] percent of [United States] public schools reported weekly student acts of disrespect for teachers.”7 Even these statistics may not accurately represent the rate of student- 1Plaza-Torres v. Rey, 376 F. Supp. 2d 171, 177 (D.P.R. 2005). 2Id. at 175, 177. 3Id. at 184. 4Id. at 175. 5Terry Nihart et al., Kids, Cops, Parents and Teachers: Exploring Juvenile Attitudes Toward Authority Figures, 6 W. CRIMINOLOGY REV. 79, 80-81 (2005); see also John O’Neil, Cover Story: Classroom Management, NAT’L EDUC. ASSN., Jan. 2004, http://www.nea.org/ neatoday/0401/cover.html (noting that public attitudes have consistently identified lack of discipline as one of the top concerns facing schools since 1969 when Phi Delta Kappa first began conducting its annual Gallop poll of public attitudes toward schools). 6Ethics Resource Center, Statistics: Discipline Issues, http://www.ethics.org/ character/stats_discipline.html (last visited Jan. 19, 2006) (reporting the results of a 1997 study on school violence, which was conducted with a nationally represented sample of 1234 regular public elementary, middle, and secondary schools in the fifty states and the District of Columbia). 7 JILL F. DEVOE ET AL., U.S. DEP’TS OF EDUC. & JUSTICE, INDICATORS OF SCHOOL CRIME AND SAFETY: 2005 at v (2005), http://www.ojp.usdoj.gov/bjs/pub/pdf/iscs05ex.pdf; see also https://engagedscholarship.csuohio.edu/clevstlrev/vol55/iss4/9 2 2007] OVERCOMING A HOSTILE WORK ENVIRONMENT 579 on-teacher harassment, as teachers may underreport harassment in order to preserve their dignity and their jobs.8 Despite the prevalence of student harassment against teachers, many school administrators disregard teacher complaints. Inaction rarely has legal repercussions for schools or their administrators.9 As a result, administrators do not feel obligated to take action against student perpetrators to remove sexual harassment from the work environment of their teachers. When school districts refuse to take appropriate action to protect their teachers from sexual harassment perpetrated by their students, teachers are forced to choose between their economic well-being and their emotional well-being.10 In the past, courts have been reluctant to hold schools accountable for student-on- teacher sexual harassment. The United States Supreme Court has not directly ruled on the issue of school liability for student-on-teacher sexual harassment.11 As a result, teachers who have been sexually harassed by their students and who have brought claims against their schools for failure to intervene have struggled to survive summary judgment and, as a result, school districts avoid legal liability.12 There is NAT'L CTR. FOR EDUC. STAT., INDICATORS OF SCHOOL CRIME AND SAFETY (2005), http://nces.ed.gov/programs/crimeindicators. 8The author bases this assumption on the apparent similarity between student-on-teacher sexual harassment and rape in terms of the victim’s reluctance to report out of embarrassment and fear. Rape is “the most underreported violent crime in America” because victims fear police response, minimize the importance of reporting, discredit the possibility of a favorable outcome, or prefer to protect their own privacy. Rape Trauma Services, Rape and Sexual Assault: The Demographics of Rape, http://www.rapetraumaservices.org/rape-sexual- assault.html (last visited Feb. 14, 2006) (citing D.G. KILPATRICK, ET AL., THE NAT’L CTR. FOR VICTIMS OF CRIME, RAPE IN AMERICA: A REPORT TO THE NATION (1992)) (emphasis omitted). 9Note that the U.S. Supreme Court has not directly ruled on the issue to establish a cause of action for teachers to assert against a school. Plaza-Torres, 376 F. Supp. 2d at 180. As a result, many jurisdictions have been unwilling to recognize a teacher’s cause of action and complaints filed by victimized teachers are often dismissed on summary judgment. See, e.g., Seils v. Rochester City Sch. Dist., 192 F. Supp. 2d 100, 113-14 (W.D.N.Y. 2002). 10 See PEGGY CRULL, WORKING WOMEN'S INST., THE IMPACT OF SEXUAL HARASSMENT ON THE JOB: A PROFILE OF THE EXPERIENCES OF 92 WOMEN 4 (1979) (indicating that psychological symptoms, including fear, anger, and nervousness, affect ninety-six percent of harassment victims); see also Jennifer L. Vinciguerra, Note, The Present State of Sexual Harassment Law: Perpetuating Post Traumatic