Peer Harassment--interference With an Equal Educational Opportunity in Elementary and Secondary Schools

• Publication year: 2021

79 Nebraska L. Rev. 1. Peer Harassment--Interference with an Equal Educational Opportunity in Elementary and Secondary Schools

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Ivan E. Bodensteiner*

Peer Harassment--Interference with an Equal Educational Opportunity in Elementary and Secondary Schools

I. Introduction........................................ 1
II. Nature and Extent of the Problem.................... 3
III. Prevention.......................................... 6
IV. Remedies for Victims............................... 13
A. Public Schools - Federal Claims................. 13
1. Racial Harassment............................ 13
a. Fourteenth Amendment - Equal Protection... 14
b. Title VI of the Civil Rights Act of 1964.. 19
c. 42 U.S.C. §1981 (a)....................... 26
2. Sexual Harassment............................ 27
a. Fourteenth Amendment - Section 1983....... 28
b. Title IX of Education Amendments of 1972.. 29
c. Violence Against Women Act of 1994 (VAWA). 42
B. Private Schools--Federal Claims................. 43
C. State Law Claims Against Schools and Student
Perpetrators.................................... 43
1. State Constitutions.......................... 44
2.State Civil Rights Statutes................... 45
3.State Tort Claims............................. 45
V. Conclusion......................................... 47

I. INTRODUCTION

When an elementary or secondary school student is harassed at school, the harassment is likely to interfere with the student's education. If such harassment is motivated by the victim's race or gender, it constitutes a form or race or gender discrimination because the victim

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is subjected to different conditions based on race or gender. Because educational institutions may not deprive students of equal educational opportunities based on race or gender, school officials have a duty to address such harassment. This duty becomes more obvious when school officials, such as teachers, are directly involved in the harassment than when fellow students are engaged in the harassing conduct. Peer harassment in schools raises difficult legal issues because fellow students rather than school officials are the problem, at least initially. Thus, the issue is whether schools and their officials can be held liable for the inequality in educational opportunity that results from peer harassment. This article suggests the answer should be yes. A second, less complex issue is whether the students responsible for the harassment, or at least their parents, can be held liable.(fn1) In addressing these issues, it is necessary to distinguish between public and private schools because some of the relevant laws apply only to government officials and entities.(fn2)

Accordingly, and to lay the foundation, the well-documented existence of racial and sexual harassment in secondary and elementary schools will be summarized in section II of this article. Prevention of harassment will be discussed in section III, with emphasis on the efficacy of strong policies, accompanying education, and prompt corrective action by school officials to ensure students harassment-free educational opportunities.

Finally, section IV will discuss the potential remedies for the student victims of student harassment in schools. First, victims of such harassment may have claims against the students who actually engaged in the harassment, based on civil rights statutes and common law tort theories. Second, victims may have state law claims that seek to hold parents liable for the actions of their children. In many situations, neither the students nor their parents will be able to satisfy a judgment, so victims will attempt to hold schools and school officials liable. A key to holding schools and their officials liable is a showing that they knew or should have known of the harassment and failed to take prompt, appropriate corrective action. However, as mentioned before, elementary and secondary schools have an affirmative duty to

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provide all children with an equal educational opportunity; that duty includes identifying and removing harassment from all schools, both public and private.

II. NATURE AND EXTENT OF THE PROBLEM

While the actual extent of racial and sexual harassment in elementary and secondary schools is not clear, reliable information suggests that a problem exists. This is evident from the fact that the U.S. Department of Education (DOE), the federal agency with the responsibility of enforcing two federal statutes that prohibit race and sex discrimination in education, has published a `guidance' addressing each of these two types of harassment. In its 1994 Racial Harassment Guidance, the DOE stated, `[t]he existence of racial incidents and harassment on the basis of race, color, or national origin against students is disturbing and of major concern to the Department.'(fn3) A few years later, in its Sexual Harassment Guidance, the DOE noted:

The elimination of sexual harassment of students in federally assisted educational programs is a high priority for [the Office of Civil Rights]. Through its enforcement of Title IX, OCR has learned that a significant number of students, both male and female, have experienced sexual harassment, that sexual harassment can interfere with a student's academic performance and emotional and physical well-being, and that preventing and remedying sexual harassment in schools is essential to ensure nondiscriminatory, safe environments in which students can learn.(fn4)

This represents an official recognition that both racial and sexual harassment are sufficiently prevalent in schools to warrant a specific guidance addressing each form of harassment.

A frequently-cited study, `Hostile Hallways: The AAUW Survey on Sexual Harassment in America's Schools,'5 presents the following `Big Picture':

The startling findings on sexual harassment in The AAUW Report: How Schools Shortchange Girlscompelled the AAUW Educational Foundation to undertake further research. We wanted to assess the extent of sexual harassment in America's schools and, even more important, the effects of that harassment on our children.

AAUW commissioned one of this country's most respected survey research firms, Louis Harris and Associates, to ensure that the survey's methodology, implementation, and questionnaire would meet the highest standards of the survey research community. The survey was designed to provide a profile of

4the problem of sexual harassment in school and answer many of the questions about school-based sexual harassment. In addition to measuring the extent of sexual harassment in school, AAUW was determined to identify the educational, emotional and behavioral impact of sexual harassment on our nation's schoolchildren.

The results of this survey form a bleak picture: 4 out of 5 students have experienced some form of sexual harassment in school. And while the impact of sexual harassment in school is significant for all students, girls suffer greater effects than boys. Further, the level of sexual harassment of boys is surprisingly high.

For many, the analysis that follows will confirm their worst fears about sexual harassment in school; for others, the results will be surprising and shocking.

What will be clear to all is that sexual harassment in America's schools affects - even disables - girls and boys alike.

What remains is the challenge facing students, teachers, and parents to ensure that the behaviors detailed in this survey do not continue.(fn6)

According to the AAUW survey, most of the harassment occurs in the public areas of school facilities - in the halls, the classrooms, on school grounds, in the cafeteria, or on school transportation.(fn7) The harassment creates a substantial educational impact, with victims not wanting to go to school, not wanting to talk as much in class, finding it hard to pay attention in school, staying home or cutting classes, making lower grades on tests and in class, and finding it hard to study.(fn8) Harassment also has an emotional impact, with victims feeling embarrassed, feeling self-conscious, being less sure of themselves or less confident, feeling afraid or scared, doubting whether they can have a happy romantic relationship, and feeling confused about who they are.(fn9) The AAUW survey also addressed the behavioral impact of harassment.(fn10) Another important finding in the AAUW survey shows `that students do not routinely report sexual harassment incidents to adults' and `most reporting takes place on a peer-to-peer basis.'(fn11)

Other evidence, although not gathered as systematically as the AAUW survey, supports the above conclusions. Examples, often outrageous, are found in reported cases,(fn12) law review articles(fn13) and

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newspaper articles.(fn14) While some may question whether student-stu-dent harassment should result in litigation, the fact that these incidents often end up in court demonstrates that other avenues of relief are not available. Many of the injuries and much of the litigation could be avoided if school officials would treat racial and sexual harassment as a serious matter and address it accordingly. As with many problems, prevention is the best remedy.

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III. PREVENTION

Those in the best position to prevent harassment are parents, teachers, and others who are responsible for teaching school-age children about respect. However, schools also have an important role to play because of their obligation to provide an equal educational opportunity. Racial and sexual harassment by students should be addressed as part of a school's code of conduct, just like physical abuse and violence. Such harassment should be taken as seriously as a punch in the face. Most school officials will not tolerate students who strike other students in the face; however, they are often more tolerant of students who harass other students. Part of this is...