Sunday, July 12, 2020

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B. The Inadequacy of Title IX and Schools' Efforts to End Sexual Harassment against Black Girls and Young Women in K-12 Schools

Current statutory and case law not only holds schools accountable for the sexual harassment occurring in their halls but also legally requires schools to respond. Nevertheless, Black girls and young women often are unable to access legal remedies or are ignored or misunderstood by school administrators. In addition, traditional school disciplinary remedies such as Zero Tolerance policies tend to punish Black girls and young women, rather than addressing root causes and holding accountable the people who perpetrate violence against them.

Efforts to end sexual harassment within K-12 schools first began in the 1970s and paralleled the broader civil rights and feminist movements of the time. Under the federal civil rights law Title IX of the Education Amendments of 1972, sexual harassment in schools became a form of illegal sex discrimination. The Office for Civil Rights of the Department of Education, which has official capacity to interpret and promulgate regulations giving effect to Title IX, defines sexual harassment as “unwelcome” conduct “that is sexual in nature” and which “denies or limits a student's ability to participate in or benefit from a school's education program.”

Title IX did not go into immediate effect upon passage in 1972. Rather, the Department of Health, Education, and Welfare took three years to issue regulations and compliance procedures under the new law. The following regulations, among others, remain in effect today and require compliance by all schools that receive federal educational funding: designate a Title IX coordinator whose contact information is made readily available to all students and staff; create, publish, and make known to all students and staff the existence of a non-discrimination policy and a grievances policy for sex discrimination, including sexual harassment claims; and perform a self-evaluation of your school's non-discrimination and grievance policies, and make appropriate adjustments.

Title IX holds school districts liable for sexual harassment that amounts to (1) quid pro quo in which an authority figure at the school “conditions an educational decision or benefit” on a student performing sexual acts or (2) a hostile school environment in which a student cannot take advantage of the full opportunities of the educational program because of sex discrimination or sexual harassment. The hostile environment might be shown by one egregious act of sexual harassment or a series of sexually harassing acts that amount to a school environment that is “hostile, intimidating, or offensive and unreasonably interfer[ing] with” the victim's schoolwork. Compliance with Title IX is weak. While the Office for Civil Rights could take away a school's federal funding for a violation of Title IX and its accompanying regulations, it has never done so. Furthermore, most young people report never receiving hard copy information about their school's Title IX and sexual harassment grievance policies, even though many students say they believe these policies exist.

Since the passage of Title IX in 1972, the Supreme Court has interpreted schools' responsibilities and liabilities under Title IX on several occasions. In 1992, the Court decided the first major case, Franklin v. Gwinnet County Public Schools. In Franklin, a female high school student brought a Title IX action seeking damages against her coach/teacher for sexual abuse, sexual harassment, and gender-based harassment. The Court held that a damages remedy is available for violation of Title IX. After Franklin, lawyers became more willing to represent plaintiffs in Title IX suits, and schools across the country received a wake-up call for the legal ramifications of noncompliance with Title IX. However, the ruling left unclear when exactly a school's action or inaction would make them liable for sexual harassment under Title IX. In 1993, the Supreme Court in Doe v. Petaluma issued another warning to schools: they may be liable for student-to-student sexual harassment that amounts to a hostile school environment.

In June 1998, the Supreme Court issued its first Title IX decision that boosted protection for schools in sexual harassment claims in Gebser v. Lago Vista Independent School District. In this controversial 5-4 decision, the Court held that a school district was not liable for damages where it did not have actual notice of the sexual harassment by a teacher against the student and it did not show deliberate indifference. In that case, the Court found that the school district lacked actual notice of the teacher engaging in a sexual relationship with the female student. The Court arrived at this outcome despite finding that the principal of the girl's school had received information that the teacher made “inappropriate comments” to the female student. Furthermore, while the Court found the school district had failed to comply with Title IX by lacking a sexual discrimination grievance or formal nondiscrimination policy, it nevertheless concluded that absence of such a policy did not establish the school's liability for sexual harassment without a further showing of actual notice and deliberate indifference. The Court did note that the federal Office for Civil Rights charged with enforcing and promulgating regulations under Title IX maintained authority to issue compliance requirements to schools that were consistent with the Gerber opinion and further said schools were required to take corrective action of sexual harassment claims once they received actual notice.

Title IX's major problem is weak compliance and enforcement. First, schools become even less likely to invoke Title IX in cases of suspected or known sexual harassment where there is a strong criminal justice presence and heavy dependence on Zero Tolerance discipline policies. As already explored, this is precisely the context in which many under-resourced, majority African American schools function. For example, reports indicate that schools have failed dramatically in their legal responsibility under Title IX to investigate sexual harassment claims independently of the criminal justice system and to provide remedies with a lower burden of proof than criminal law. Secondly, concern exists that the most financially struggling schools are more likely to assign Title IX compliance duties to an already overburdened staff person due to lack of resources. These problems with Title IX suggest a possible disparate impact on African American girls and young women who are most likely to attend heavily policed schools with heightened enforcement of Zero Tolerance rules against Black students.

Instead of relying upon Title IX, schools often resort to their own internal forms of discipline, such as Zero Tolerance policies. Zero Tolerance policies have been described as “mandatory, uniform punishments that suspend and expel or push out rule-breaking students of all races at now-record rates and students of color at highly disproportionate rates.” Such policies “mandate suspension or expulsion of students from school for a wide variety of misbehaviors including possession of alcohol or cigarettes, fighting, dress code violations, and cursing.”

Zero Tolerance policies originated in an unusual climate of responsiveness to school violence following a slew of school shootings, most famously the tragedy at Columbine High School in Littleton, Colorado. Wellesley College Professor Nan Stein discusses how the national attention to these high-profile shootings shifted focus away from violence against girls to more extreme forms of school violence happening at that time. In fact, most of the school shooting tragedies of the 1990s were “perpetrated by White middle-class boys who were upset either about a break-up or rejection by a girl, or who did not meet traditional expectations of masculinity and were thus mercilessly teased and bullied by peers.” While violence as serious as school shootings deserves attention, too much focus on these extreme, but rare, forms of violence has the unintended consequence of inflating uncommon forms of violence to the neglect of the victimization of girls, especially African American girls, who experience school violence and sexual harassment at some of the highest rates.

Furthermore, the media attention to school shootings eclipsed attention to sexual harassment and made it easier for school districts to ignore their duties under Title IX. In other words, many school administrators no longer saw the need to address the psychological or subtler forms of physical aggression that gendered violence often takes. Rutgers School of Criminal Justice Professor Jody Miller, who conducted focus groups to study gendered violence among African American students in an urban school in St. Louis, shared students' stories that suggested teachers would only intervene or punish student aggressors if the sexual harassment were physical, not psychological or verbal.

Stein supports this finding. In her research on school harassment, she found that:

[M] any girls cannot get confirmation of their experiences from school personnel because most of those adults do not name it as “sexual harassment” and do nothing to stop it. . . . [Girls' stories revealed their] repeated efforts to get adults to see and believe what is happening right before their eyes, and to do something about it. These young women [began] to sound ominously like battered women who are not believed or helped by the authorities and who feel alone and abandoned.

Through a lens of race and gender, Zero Tolerance policies fail to address sexual harassment. Most importantly, such policies have had racial and gendered impacts, with a disproportionate number of students of color--especially African American and Latino boys, and increasingly African American and Latina girls--being suspended and expelled in situations of sexual harassment. Girls become a particularly visible target under this regime because school employees see boys' sexual advances as playful or even gender-appropriate, while they perceive girls' physical forms of self-defense, self-protection, and retaliation as aggression worthy of punishment.
In response to sexual harassment aimed at Black girls and young women, traditional school discipline and Zero Tolerance policies have been both ineffective and counterproductive. Furthermore, Title IX has been weakly enforced and overshadowed by school discipline. Part II examines how social psychology and the theory of implicit bias link perceptions of Black girls and young women to schools' racially disparate and inadequate responses.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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