New Guidelines Target
Peer Sexual Harassment

The US Department of Education has established new guidelines by which its Of- fice of Civil Rights (OCR) will combat peer sexual harassment at schools that receive federal assistance.

OCR has deemed peer sexual harassment unlawful under Title IX of the Education Amendments. Title IX holds that "[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 . . . ."

Severe, Persistent or Pervasive

The guidelines are limited to peer sexual harassment that creates a hostile environment. According to OCR, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when the conduct is "sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment."

OCR will, according to the guidelines, hold a school liable for the conduct of its students that creates a sexually hostile environment where (i) a hostile environment exists, (ii) the school has notice of the harassment, and (iii) the school fails to take immediate and appropriate steps to remedy it.

A school has notice when it knew or should have known of the harassment.

To constitute a hostile environment under the peer sexual harassment guidelines, however, the sexual conduct must be unwelcome. According to OCR, conduct is unwelcome when the student being harassed did not solicit or incite it and "regarded the conduct as undesirable or offensive."

If, however, a student "actively participates in sexual banter and discussions and gives no indication that he or she objects to it, then the evidence generally will not support a conclusion that the conduct was unwelcome."

Third-Party Harassers

Conduct of persons other than students also might create a hostile environment. The guidelines hold that "[s]exually harassing conduct of third parties who are not themselves employees or students at the school (e.g., a visiting speaker or member of a visiting athletic club) can also cause a sexually hostile environment in school programs or activities."

To determine whether sexual conduct is "severe, persistent or pervasive" (and, therefore, may be deemed sexual harassment), OCR will consider--among other things--the degree to which the conduct affected a student's education; the type, frequency and duration of the conduct; the number of individuals involved;the age and sex of both the alleged harasser and the subject of the harassment; and the size of the school, location of the incidents, and context in which they occurred.

OCR nevertheless deems it "important to recognize that Title IX's prohibition of sexual harassment does not extend to legitimate nonsexual touching or other nonsexual conduct."

Free Speech

Moreover, the guidelines note that, "[i]n cases of alleged harassment, the protections of the First Amendment must be considered if issues of speech or expression are involved." According to OCR, "Title IX is intended to protect students from sex discrimination, not to regulate the content of speech."

In essence, the guidelines make an institution liable under Title IX for the failure to implement or enforce a vigorous policy prohibiting sexual harassment among students. Liability under Title IX generally would result in a threat to withhold federal assistance.

The courts, however, are not in agreement over whether an institution may be liable as well for damages if it is sued by a victim of peer sexual harassment. In Rowinsky v. Bryan Independent School District, the US Court of Appeals for the Fifth Circuit ruled that peer sexual harassment is not, in and of itself, cognizable
under Title IX.

Norma Cantu, the Department of Education's Assistant Secretary for Civil Rights, criticized that holding, claiming that the Rowinsky court "rejected other federal opinions on the subject, misconstrued existing statements of OCR policy, and dismissed OCR's deliberate and settled practice."

Published in the Summer 1997 Edition of In Brief