Legislation on sexual harassment in educational institutions should place a duty on national education ministries, regional educational bodies, and on individual schools to (1) prevent, (2) investigate and (3) effectively remedy sexual harassment.
Example: CEDAW cited in Zambian school rape case
A 13-year old Zambian girl, R.M., who was raped by her teacher won a case in 2008 granting her damages and other remedies, because the school had not responded effectively to her complaint and was aware of other complaints against the teacher. When R.M.’s guardian reported the incident, the school headmaster noted that the teacher had been previously accused of rape; the teacher was briefly detained by police but was never charged. R.M. filed a civil suit against the teacher, school, Ministry of Education and the Zambian Attorney General. The Lusaka High Court found in favor of R.M., awarding damages for pain and suffering and metal torture, as well as medical expenses. The judge directed the Ministry of Education to promulgate regulations that would protect students in schools and directed the Director of Public Prosecutions to initiate a criminal case against the teacher. Attorneys in the case specifically raised Zambia’s obligations under CEDAW, the Child Rights Convention, and the Protocol on the Rights of Women in African. The court cited the entire text of Article 4 of the Protocol in its judgment.
Prevention, Policy Development & Training
Sweden’s anti-discrimination law provides an example of a general provision imposing a duty on schools to prevent sexual harassment:
An education provider referred to in Section 14 is to take measures to prevent and hinder any child, pupil or student who is participating in or applying for their activities from being subjected to harassment associated with sex…or to sexual harassment.
See: Discrimination Act, Ch. 3, sec.15.
Laws should require that each educational institution develop and distribute an anti-harassment policy as a critical aspect of prevention.
The U.S. state of California’s Education Code, sec. 231.5, provides an example of legislation requiring that schools develop and disseminate sexual harassment policies to students and staff:
…(b) Each educational institution in the State of California shall have a written policy on sexual harassment...
(c) The educational institution’s written policy on sexual harassment shall include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies.
(d) A copy of the educational institution’s written policy on sexual harassment shall be displayed in a prominent location in the main administrative building or other area of the campus or school site. “Prominent location” means that location, or those locations, in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted.
(e) A copy of the educational institution’s written policy on sexual harassment, as it pertains to students, shall be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session, as applicable.
(f) A copy of the educational institution’s written policy on sexual harassment shall be provided for each faculty member, all members of the administrative staff, and all members of the support staff at the beginning of the first quarter or semester of the school year, or at the time that there is a new employee hired.
(g) A copy of the educational institution’s written policy on sexual harassment shall appear in any publication of the institution that sets forth the comprehensive rules, regulations, procedures, and standards of conduct for the institution.
In addition, schools should ensure that their policy reflects national non-discrimination laws as well as international treaty obligations on preventing violence and discrimination against women and girls. [Internal link to International law section above] The following guidelines provide a helpful framework for developing school anti-sexual harassment policies:
A school sexual harassment policy should do the following:
- State the school’s commitment to prevent sexual harassment.
- Offer examples of behaviors covered by the policy.
- Identify the kinds of activities and sites where prohibited conduct could occur.
- Explain the methods the school will use to investigate incidents of sexual harassment.
- Make clear that the school will take action to stop sexual harassment from recurring.
- Outline specific procedures to address formal complaints of sexual harassment.
- Provide the names, positions, and contact information for people responsible for accepting and managing complaints (complaint managers).
- Require staff and other individuals working on school grounds to report sexual harassment that they witness or learn about.
- Prohibit retaliation against those who report harassment or participate in related proceedings.
- Explain that confidentiality will be maintained as much as possible (for victims, bystanders, etc.) and that victims or witnesses will not be required to face harassers.
- State that the goal of any investigation or proceedings will be a fair resolution that includes appropriate and corrective action.
In developing a policy on sexual harassment, schools should do the following:
- Include all categories of people affected by the policy in the development process (students, parents, faculty, staff).
- Seek participation by all members of the school community (e.g., the school attorney, state agencies, and other individuals or agencies who know about harassment and civil rights issues).
- Make sure that individuals involved in the development of the policy receive training and have access to experts who can advise them on designing a fair and comprehensive policy.
- Thoroughly publicize the policy throughout the school and community through public posting, in discussions with students and adults, at parent-teacher organization meetings, and in languages spoken by the school population.
- Designate time and resources to implement the policy, including training for staff members.
- Align the policy with other district policies, such as written codes of conduct and personnel and student handbooks.
(See: AAUW, Harassment-Free Hallways, 23, 2004; Amnesty International, Safe Schools: Every Girl’s Right, 2008)
Laws related to sexual harassment in education should require that schools train students, staff, and parents about sexual harassment. Integrating sexual harassment education into school curricula is also recommended as a best practice to prevent harassment by empowering students to speak up for themselves. Several organizations provide information on how to increase awareness of sexual harassment among teachers, staff, and particularly schoolgirls.
The Canadian School Health Center hosts a website with numerous lesson plans about sexual harassment for students of different ages that can be integrated into classroom teaching.
The Australian Human Rights Commission has also produced a curriculum called Tackling Sexual Harassment in Your School.
In Egypt, the Egyptian Center for Women’s Rights ran a multi-year campaign to raise awareness about sexual harassment, including harassment of children. The group developed a movie and an educational booklet that included games to help educate children about sexual harassment without making them overly afraid.
Pennsylvania Coalition Against Rape, Sexual Harassment Prevention in the Schools: A Facilitator’s Manual and Curriculum for Grades 1 through 12 (2009). Available in English.
CASE STUDY – Costa Rica
As part of implementing its Act No. 7476 on Sexual Harassment in the Workplace and in Education, Costa Rica has undertaken an extensive public awareness and education effort around harassment of adolescent girls. The National Center for Development of Women and the Family launched a Programme on Adolescent Girls which included a national survey. The survey was conducted at public, private, semi-official, and technical colleges around the country to assess knowledge about the Act and to gather data on the frequency of sexual harassment in the educational environment. The program also included a media campaign focused on prevention, punishment, and eradication of sexual harassment of young girls. Finally, the program provided training on sexual harassment prevention to counselors in secondary schools, teachers and administrative staff of secondary education centers, adolescent students from secondary schools, and university students. The government also produced specific educational materials with support from the UN and the European Union including “Say No to Sexual Harassment” and “Sexual harassment: What to do.” (See: Combined initial, second and third periodic reports of States parties – Costa Rica, CEDAW/C/CRI/1-3.)
Investigation
Laws should require that schools immediately investigate any allegation of sexual harassment. For example, under Swedish law, “[i]f an education provider becomes aware that a child, pupil or student participating in or applying for the provider’s activities considers that he or she has been subjected in connection with these activities to harassment or sexual harassment, the education provider is obliged to investigate the circumstances surrounding the alleged harassment and where appropriate take the measures that can reasonably be demanded to prevent harassment in the future.” (See: Discrimination Act, Ch. 2, sec.7)
Investigations should be conducted confidentially and victims should be informed of the progress and outcome of the investigation. When harassment is found to have occurred, laws and policies should require that responsive measures, such as separation of the victim and the harasser, minimize the burden on the victim as much as possible. The U.S. Department of Education provides helpful guidance on best practices for sexual harassment investigations in educational settings in its publication Protecting Students from Harassment and Hate Crime: A guide for schools.
Remedies
Remedies for sexual harassment of students may include special care and provisions for affected students, dismissal or other sanction for adults involved, changes in the educational setting itself, or punitive fines or criminal sentences. Many national laws make harassers individually punishable for acts of sexual harassment, whether through criminal legislation, dismissal, or civil penalties. While individual liability is critically important, making schools institutionally liable for their actions in creating a safe school is an equally important piece of preventing sexual harassment of girls and women.
Examples of Remedies
Japan:
For college and university students, sexual harassment in education and employment often overlap. In a case arising out of Tohoku University in Japan, a university professor was ordered to pay 9 million yen in compensation to a student assistant. The Sendai High Court determined that he had harassed her by demanding that she have a sexual relationship with him, and when she tried to end the relationship, he demanded that she rewrite her doctoral thesis. (See: Prof ordered to pay 9 mil. yen for sexual harassment, Asian Economic News, July, 10, 2000)
United States:
In the United States, legislation prohibiting sexual harassment of students as a form of discrimination is tied to national funding of educational institutions. Any school – whether run by the government or by a private organization – that receives funding from the U.S. government must comply with Title IX. Title IX requires that schools issue a policy against sexual harassment, publicize grievance procedures, and have a Title IX coordinator. (See: U.S. Department of Education, Sexual Harassment: It’s Not Academic, 16, Sept. 2008) Coordinators are specially designated individuals trained to help ensure that schools are complying with the requirements of Title IX, which include but go well beyond sexual harassment prevention. Judicial interpretation of Title IX has determined that school districts can be held liable for monetary damages when students experience harassment, either from a teacher or a fellow student, when “an official with authority to end the discrimination had actual knowledge of the discrimination and failed to act such that the failure amounted to deliberate indifference.” (See: Gebser v. Lago Vista Independent School Dist, 524 U.S. 274 (1989); Davis v. Monroe County Board of Educ., 526 U.S. 629 (1999)) While this sets a high standard for liability, the potential threat of liability can alter institutional practice.
Pakistan:
After complaints from students, the University of Peshawar changed its grading policy for examinations. It had become clear that giving university lecturers full power to grade examinations was setting the stage for “grades-for-sex” relationships at the university. The University changed the grading policy to provide that 30% of the grade would be determined by the regular lecturer known to the students, but that 70% of the examination grade would be determined by an external grading committee that students would never meet. See: Sexual Harassment in Pakistan 2011 (2012).