By: Debra Denison

Under the Civil Rights Act, sexual harassment is defined in two ways. The first is quid pro quo harassment. The second is hostile environment. In an employment setting, quid pro quo harassment occurs when a job, job opportunities or job benefits are conditioned on sexual favors or are subject to sexual claims or actions by an individual in power over the employee. A hostile work environment is created when an employee is subject to a pattern of activity based on her sex which impacts her ability to perform her job duties.

Title IX of the Education Amendments of 1972 made it illegal for educational facilities which receive federal funds to discriminate on the basis of sex. This provision of the amendments has been used in suits alleging employment discrimination and sexual harassment by teachers or administrators against students. These cases held the schools liable for the actions of its employees. These amendments have also been used to challenge discriminatory practices in the funding of school athletic programs.

Headlines such as "SIX YEAR OLD SUSPENDED FOR KISSING STUDENT" demonstrate the newest litigation arising under the amendments: student against student harassment. Student against student harassment arises under the hostile environment arm of sexual harassment. Students claim that there is a pattern of harassment based on their sex that makes it difficult for them to attend and perform in school and that the school has failed to adequately protect them from the harassment.

There are two schools of thought on the liability of schools for harassment by their students. The first theory requires the plaintiff to demonstrate that the school intentionally discriminated against a student on the basis of sex and holds that it is not enough that the institution knew or should have known of the harassment. Under this standard, it would be very difficult to hold a district liable.

The other jurisdictions do not require actual knowledge but hold that a school district will be liable if it fails to develop and implement policies designed to bring incidents of harassment to the attention of officials. The toleration of a hostile environment will lead to liability.

Case Examples:

"A THIRD GRADER IS AWARDED $5,000 FOR SEXUAL HARASSMENT BY BOYS IN HER SCHOOL"

The third grader was subjected to repeated harassment by boys on her school bus which included inappropriate physical touching, rumors that she was having sex with animals and that she had AIDS and obscene pictures directed at her. The girl's mother complained to the school which did not respond.

"SIXTH GRADER GETS $500,000 FOR SEXUAL HARASSMENT BY CLASSMATE"

The sixth grader was subjected to foul language, obscene gestures and threats against her life. She and her parents made at least 15 complaints to the school who failed to do anything. A school employee told her parents to "go ahead and sue us." The case was brought under a state negligence theory.

"PENNSYLVANIA HOLDS THAT TITLE IX DOES NOT SUPPORT A CLAIM FOR STUDENT ON STUDENT SEXUAL HARASSMENT"

Pennsylvania holds that a University of Pittsburgh student is entitled to injunctive relief but not damages for harassment.

In light of the massive amount of litigation occurring in this field, the Department of Education has issued guidelines for school districts to prevent harassment and the potential for litigation. At a minimum, each school should have a specific policy regarding student on student harassment and a clearly defined procedure for handling complaints.

Until this area of the law is more clearly defined, it is likely that the schools will be taking an extremely guarded approach to all actions which may be perceived as harassment. Unfortunately, this may result in extreme reactions to normal childlike behaviors.