By Kevin Lungwitz
In part one of this two-part series, we reviewed employee sexual misconduct with students. In this article, we will examine student-to-student sexual misconduct.
What if sexual assault is reported?
If student-to-student sexual assault is alleged, the principal, other supervisors, and the district SRO—or local law enforcement—should be immediately notified. A report should also be made to CPS within 48 hours. Criminal conduct will impact the school’s discipline of the student. Any student who engages in a felony within 300 feet of school property or while attending a school-related activity must be placed in the DAEP.1 Sexual violence (i.e., sexual assault) may arise in the form of hazing and bullying, and Title IX may come into play.
Bullying
Sexual misconduct includes bullying based on a student’s sex, sexual orientation, and gender identity. According to your school district’s policy FFI (Legal), and the Texas Education Code, bullying is an act that exploits a power imbalance, which may be written, verbal or physical.2 Bullying could occur verbally or by physical contact, or through electronic means (cyber-bullying) and may include hazing, threats, taunting, teasing, confinement, assault, demands for money, destruction of property, theft of valued possessions, name calling, rumor spreading or ostracism.3 Bullying will vary by case and may not always be sexual in nature.
Harassment, Dating Violence
Harassment is a subset of bullying. Student-to-student sexual harassment includes unwelcome sexual advances, sexually intimidating conduct, requests for sexual favors, and sexually motivated physical, verbal or nonverbal conduct.4 Dating violence occurs when Person #1 in a current or past dating relationship uses physical, sexual, verbal or emotional abuse to harm, threaten, intimidate or control Person #2 in the relationship; or when Person #1 commits these acts against Person #3, the new relationship partner of Person #2.5
Bullying, harassment, and dating violence are three sides of the same coin. They are all actionable—meaning a court would likely recognize a legal claim by the complainant—when the conduct is severe, persistent, or pervasive enough that it:
- Affects a student’s ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, hostile or offensive educational environment;
- Has the purpose or effect of substantially or unreasonably interfering with the student’s academic performance; OR
- Otherwise adversely affects the student’s educational opportunities.6
In 2021, The U.S. Department of Education, Office of Civil Rights issued a notice that Title IX protects students from harassment based on sexual orientation and gender identity.7
While we quickly think of student-to-student sexual misconduct as including unwanted sexual contact or unwanted sexual advances, schools must also protect against sexually motivated bullying, dating violence and harassment. For brevity, we will refer to these three types of sexual misconduct as “sexual harassment” because each is fueled by a desire to control the victim, usually based on a power imbalance.
Know the District’s Title IX Coordinator
Title IX requires every school district to have a Title IX Coordinator and to prominently display the coordinator’s name and contact information across all its normal communication platforms including websites, policies, and student handbooks. The Title IX Coordinator should ensure campus administrators understand how to help facilitate a student report. Staff should be trained to keep an ear and eye out for student complaints. Teachers must forward that information to the principal or to the Title IX Coordinator so that appropriate and prompt action may occur.
Can a school employee or the district be held liable for student-to-student sexual harassment?
When an allegation of sexual harassment is made, the district is obligated to investigate, regardless of whether the student files a written report. As stated earlier, the complainant may have a legal claim if the sexual harassment was “severe, persistent, or pervasive” in addition to other factors. If a school employee—especially one in an administrative position—or the district is “deliberately indifferent” to the allegation, the district could be liable for the complainant’s damages. A prompt investigation is usually proof the district was not deliberately indifferent. If the district does not ignore a complaint and acts reasonably in an investigation, it is not likely that the district or an employee will be held liable for the complainant’s damages.
Do I investigate?
Whether campus administration, central office or an outside entity will investigate may depend on the allegations. Clarify with the district your team’s obligations. If you are asked to conduct a sexual harassment or sexual violence allegation, you should seek the advice or your supervisor(s), HR, or the school attorney. Policy FFH and FFI (Legal) and (Local), and in some districts the (Regulation) or (Exhibit) versions of those policies contain valuable information about the nuts and bolts of a sexual harassment investigation. The principal or assistant principal should promptly notify parents or guardians, as well as the Title IX Coordinator. If the allegation constitutes child abuse or sexual violence, law enforcement should be contacted, as well as CPS within 48 hours.
What are the remedies? What is the punishment?
The district should be prepared to offer the complainant immediate, interim relief from the alleged conduct, in consultation with the complainant and their parent(s) or guardian(s). If the investigation confirms prohibited conduct, after consultation with the affected party, the school should offer the complainant non-punitive, supportive measures, which could include: counseling; academic accommodations, including course-related adjustments; schedule modifications and/or extensions of school deadlines; providing an escort to ensure the student can move safely between classes and other district programs and activities; increased security and monitoring; and/or mutual restrictions on contact between the complainant and other parties.8
If the allegation is substantiated, discipline of the perpetrator must follow the district’s Student Code of Conduct and policies FFI and FFH.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Tex. Educ. Code Sec. 37.006(a)(2)(A)
2Policy FFI (Legal); Tex. Educ. Code Sec. 37.0832
3Policy FFI (Legal) and (Local)
4Policy FFH (Legal) and (Local)
5Id.
6See Davis v. Monroe County Bd. of Educ., 119 S.Ct. 1661 (1999)
7U.S. Dep’t of Educ., Office for Civil Rights, Federal Register Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County (Aug. 20, 2021)
8See Austin ISD Policy FFH (Regulation)
TEPSA News, November/December 2023, Vol 80, No 6
Copyright © 2023 by the Texas Elementary Principals and Supervisors Association. No part of articles in TEPSA publications or on the website may be reproduced in any medium without the permission of the Texas Elementary Principals and Supervisors Association.
Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
