Education Law - Employee Sexual Harassment And Abuse Of Students

Two federal statutes, Title IX of the Education Amendments of 1972 (§§ 901–909, as amended, 20 U.S.C.A. §§ 1681–1688) and SECTION 1983 of the Civil Rights Act of 1964 (42 U.S.C.A. § 1983), provide students with potentially powerful tools of redress for and protection against sexual harassment and abuse perpetrated by school employees. Title IX provides, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Section 1983 prohibits the deprivation of federal constitutional and statutory rights "under color of state law."

The most notable ruling on the application of Title IX has been the U.S. Supreme Court's 1992 decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208. In that landmark case, the Court held that a female high-school student who had been subjected to SEXUAL ABUSE by her teacher could receive money damages under Title IX. The Court implicitly accepted as "sexual harassment" the type of behavior that existed in Franklin, which involved coercive sexual activity between a male high-school teacher–coach and a female student. Accordingly, sexual harassment, in all its forms, is SEX DISCRIMINATION prohibited by Title IX. As defined by the Office of Civil Rights, "[s]exual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent … that denies, limits, provides different, or conditions the provision of aid, benefits, or services or treatment protected under Title IX."

Under Section 1983 (42 U.S.C.A. § 1983), the violation of a student's right to bodily security (as against a school district) implicates SUBSTANTIVE DUE PROCESS rights under the Fourteenth Amendment. However, in order to demonstrate liability, the plaintiff must show that the school had notice of a pattern of unconstitutional conduct. This standard is difficult to meet. For example, a handful of complaints received by various school officials that a bus driver had kissed or fondled several handicapped children were insufficient to support a Section 1983 claim (Jane Doe A v. Special School Dist. of St. Louis County, 908 F.2d 642, 60 Ed. Law Rep. 20 [8th Cir. 1990]).

Litigation involving claims of sexual abuse by teachers is expanding rapidly. The courts are creating new legal avenues of redress, and students are becoming more willing to confront their abusers. Further, some state courts have waived statutory time limits on the filing of claims in cases involving sexual abuse of minors, permitting lawsuits many years after an alleged abuse.