Courts Question Reasoning of
Sexual Harassment Guidelines

Recent decisions in student lawsuits undermine
Department of Education's policy statements

US Department of Education guidelines define a school's liability for sexual harassment of students by school employees, but some federal courts hearing lawsuits by such students are critical of the Department's reasoning.

According to the Office of Civil Rights (OCR), the Department's enforcement arm, institutions receiving federal funds are liable under Title IX of the Education Amendments of 1972 for sexual harassment of students by those institutions' employees.

Such harassment may come in the form of quid pro quo (where a student's participation in an educational activity is based "on the student's submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal or physical conduct of a physical nature") or hostile environment (unwelcome sexual conduct "that is sufficiently severe, persistent, or pervasive" to limit the student's participation in an activity) behavior.

OCR holds institutions responsible for sexual harassment by their employees primarily on "agency principles." Those principles would deem a harasser to have acted on behalf of a school--thereby making the school liable--merely because the harasser is a school employee.

Accordingly, OCR states that "a school will always be liable for even one instance of quid pro quoharassment . . . whether or not it knew, should have known, or approved of the harassment."

Moreover, the agency asserts that a school will be accountable for hostile environment sexual harassment by an employee toward a student if the school "'knew, or in the exercise of reasonable care, should have known' about the harassment" and failed "to take immediate and appropriate corrective action."

The guidelines are OCR's interpretation of sexual harassment law under Title IX, and evidence the standards to which it holds institutions receiving federal funds. Schools found to have violated Title IX may, as a result, lose their entitlement to such funds.

However, in private lawsuits against schools by alleged victims of sexual harassment by employees (which do not involve federal funds but nevertheless are brought under Title IX principles), several courts have refused to follow OCR's guidelines in deciding whether schools must pay damages to student plaintiffs.

The most recent example is the US Court of Appeals for the Seventh Circuit's decision last October in Smith v. Metropolitan School District Perry Township, an action against an Indianapolis school district by a student who claimed she had been sexually harassed while engaging in an affair with her high school swim coach during her senior year.

Ruling in favor of the school district, the Seventh Circuit held that a school would be liable for teacher-student sexual harassment only if a responsible school official "had actual knowledge of the abuse" and failed "to take action that would end such abuse."

The court criticized OCR's guidelines, noting that they provide "no rationale for applying agency principles and thus no basis for the greatly expanded exposure to liability for educational institutions."

It also chastised OCR for failing "to consider the financial impact its policy--including the adoption of strict liability--would have on school districts that accept federal funds under Title IX."

While Smith represents the law in the Seventh Circuit, still other courts have announced holdings that are consistent with OCR's reading of Title IX."

This difference of opinion arises in private lawsuits for damages by students claiming to have been harassed by school employees. On the separate issue of federal funds under Title IX, however, institutions are uniformly subject to OCR's guidelines, regardless of the differences among the courts. For this reason, most schools' sexual harassment policies comply with the guidelines.

Published in the Winter 1998 Edition of In Brief