ED Issues Guidance on Sex Harassment of Students

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The Department of Education last week issued final policy guidance for educators on sexual harassment of students. The document, among other guidelines, declares that a 1st grader should not be punished for a single kiss on a classmate's cheek.

The 18-page guidance, published March 13 in the Federal Register, makes a reference to the uproar last fall over Johnathan Prevette, the 6-year-old Lexington, N.C., boy who was punished under his school's sexual-harassment policy for kissing a girl in his 1st grade class. The school district later backtracked and said the boy violated a general behavior code. ("Suspensions Spur Debate Over Discipline Codes," Oct. 23, 1996.)

"A kiss on the cheek by a 1st grader does not constitute sexual harassment," Norma V. Cantu, the department's assistant secretary for civil rights, says in an introduction to the guidance.

The incident involving the North Carolina boy, as well as similar incidents of discipline of other youngsters, highlighted the confusion school officials face over what constitutes sexual harassment and what they are obligated to do about it.

The final policy guidance from the department's office for civil rights is meant to address that confusion. And while it suggests that school officials may have overreacted in the North Carolina case, the guidance reiterates the federal government's long-held view that educators must take sexual-harassment complaints seriously.

"A school will be liable under Title IX [of the Education Amendments of 1972] if its students sexually harass other students ... the school knows or should have known of the harassment, and the school fails to take immediate and appropriate corrective action," the guidance states.

An Unsettled Area

The final guidance combines separate draft documents, issued last year, that addressed student-to-student sexual harassment and employee-student harassment. The final draft also responds to advice and requests for clarification from the public, Ms. Cantu said.

OCR guidance is not binding on the courts, and the extent of districts' liability for sexual-harassment incidents remains an unsettled area of federal law. ("In Harassment Suits, a New Era Emerges," Sept. 25, 1996, and "Supreme Court Declines To Accept Student Sexual-Harassment Case," Oct. 16, 1996.)

Notably, the U.S. Court of Appeals for the 5th Circuit has taken a much narrower view of district liability than the OCR and a number of other federal courts.

The 5th Circuit court said in a ruling last year that peer sexual-harassment cases arising in schools should not be handled under the framework applied to businesses by Title VII of the Civil Rights Act of 1964. The court said in Rowinsky v. Bryan Independent School District that districts are not liable for peer sexual harassment unless they respond differently to complaints based on the sex of the alleged victim.

The U.S. Supreme Court declined last fall to review the circuit court's ruling in Rowinsky. The high court appears to be allowing the issue to percolate in the lower federal courts.

The OCR guidance says the 5th Circuit court's view is wrong, but the agency will follow the court's rulings when investigating sexual-harassment complaints in the three states--Louisiana, Mississippi, and Texas--under that court's jurisdiction.

Legal Notice

Ms. Cantu says that some educators who reviewed the department's draft documents asked for rules that were more easily understood about what constitutes sexual harassment and how schools should respond. But, she writes in her introduction, "it is impossible to provide hard and fast rules applicable to all instances of sexual harassment."

Educators will have to use the guidance and the examples, which generally come from federal case law, to devise their own policies, she says.

One critical piece of guidance for administrators is that once they receive a report of possible sexual harassment of students, they should take immediate steps to investigate and end the harassment. Schools have been confused about whether they are liable when a teacher or a staff member other than an administrator receives a sexual-harassment complaint.

The ocr says it disagrees with those who suggest that only "managerial" employees can receive a sexual-harassment complaint for a school to be on legal notice.

"Young students may not understand those designations and may reasonably believe that an adult, such as a teacher or the school nurse, is a person they can and should tell about incidents of sexual harassment," Ms. Cantu says.

The department plans to publish a pamphlet for teachers, parents, and students that outlines the guidance in less legalistic terms. Copies of the pamphlet and the full guidance also will be posted at the department's World Wide Web site at

The pamphlets also are available by calling the department at (800) 421-3481.

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