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#MeToo: Future Impact on Sexual Harassment Litigation Involving Schools, Athletic Programs

By Lee Green, J.D. on February 05, 2018 hst Print

The Timeline
In retrospect, from a vantage point a few years into the future, the last three months of 2017 will likely be viewed as the explosive, Big Bang-like origin point of one of the most profound cultural revolutions
in history – the birth of a movement that will almost certainly have a significant, filter-down effect on schools and athletics programs. First, a cannonade of breaking news was unleashed via traditional media. Next, the blast was magnified millions-fold through the viral impact of new-millennium social media. Then, the reverberation led to an awakening – or more accurately a reckoning – concerning what now clearly appears to be one of the most pervasive inequities in our society.

Sexual Harassment
On October 5, 2017, a front-page, above-the-fold, New York Times article, based on an investigation led by reporters Jodi Kantor and Megan Twohey, exposed a decades-long history of sexual harassment allegations by dozens of women (by the end of 2017, more than 80 would come forward) against Hollywood producer Harvey Weinstein. The decision to publish the story was heavily influenced by corroboration from actress Ashley Judd, who revealed to the journalists a 1997 incident where Weinstein invited the then 29-year-old to a business breakfast with himself and casting agents to discuss a possible role for her in a Miramax film, but the meeting turned out to be with Weinstein alone in his room at the Peninsula Beverly Hills hotel, where he allegedly answered the door dressed only in a bathrobe, requested a massage from Judd, asked if she would watch him shower, and pressured her to either engage in sexual acts with him or watch him engage in solo sexual acts.

Five days after the Times article was printed, on October 10, 2017, the New Yorker published an online article by reporter Ronan Farrow detailing the results of a 10-month investigation into allegations of sexual misconduct by Weinstein, including lengthy accounts by 13 women of sexual harassment and sexual assaults covered up by the producer through the use of payoffs and nondisclosure agreements. The piece had been scheduled for release in the magazine’s October 23, 2017, hard-copy issue, but after being scooped by the Times, the article was released early online and immediately went viral, being read in the first day after its publication by more than three million individuals.

On October 15, 2017, after reading the articles in the Times and New Yorker-online, actress Alyssa Milano tweeted a suggestion she had received from a friend stating, “If all the women who have been sexually harassed or assaulted wrote ‘Me Too’ as a status, we might give people a sense of the magnitude of the problem.” Within 24 hours of Milano’s post, more than 500,000 persons had used the #MeToo hashtag (a phrase originally created in 2007 by activist Tarana Burke, but not popularized until Milano’s tweet) and in that one-day-period, according to analytics reported by the platform, the designator appeared in 12 million Facebook posts.

And thus, a movement was born. By the end of 2017, #MeToo accounts of sexual harassment in the entertainment industry, the business community, the print and broadcast media world, in legislatures and government agencies, and in academia – including high schools and sports programs – had been posted by more than 100 million persons in more than 85 countries.

An awakening had taken place in which victims of sexual harassment felt empowered to come forward, believing that finally, at long last, they might be believed, and that they would be backed by, and in the future could themselves stand strong with, other victims. Accompanying that awakening was a reckoning, one in which perpetrators began to be held accountable for their actions, including Weinstein, actor Kevin Spacey, comedian Louis C.K., director Brett Ratner, screenwriter James Toback, conductor Charles Dutoit, filmmaker Morgan Spurlock, radio host Garrison Keillor, CEO of the Besh Restaurant Group John Besh, CEO of Amazon
Studios Ray Price, NFL executive Eric Weinberger, CEO of Sherpa Capital Shervin Pishevar, NPR chief editor David Sweeney, Tesla and SpaceX board member Steve Jurvetson, publisher of the New Republic Hamilton Fish, musician and entrepreneur Russell Simmons, newsman Charlie Rose, television host Matt Lauer, chef Mario Batali, U.S. Senator Al Franken, U.S. Representative Trent Frank, U.S. Senate candidate Roy Moore, federal appeals court judge Alex Kozinski, and sports analysts Marshall Faulk, Heath Evans, Donovan McNabb, Eric Davis and Ike Taylor.

Sexual harassment of students and student-athletes has long been one of the challenges facing school and athletics administrators and given the future impact that the #MeToo movement will likely have in terms of significantly increasing the number of victims who feel empowered to report incidents, it is imperative that K-12 leaders become highly proactive in developing and implementing strategies to protect students and student-athletes from such abuse.

Legal Standards Governing Sexual Harassment
Most sexual harassment lawsuits against districts and school personnel are either quid pro quo claims, alleging that the perpetrator exerted pressure on the victim to engage in sexual behavior that was linked to threats of tangible school or athletics consequences, or hostile environment claims, alleging that the victim was subjected to unwelcome words or action of a sexual nature that were sufficiently severe or pervasive to create a hostile school or sports environment for the victim.

If the elements of a quid pro quo or hostile environment claim are established in a case, then the issue becomes the extent of the liability that should be imposed on a school district or its personnel for the bad acts of the single employee or a student who committed the harassment. For instance, if an assistant coach commits sexual harassment or sexual assault by entering into an inappropriate relationship with a student-athlete, will the head coach, the athletic director, other school administrators and the district be held financially liable for the misconduct of the assistant coach?

In Gebser v. Lago Vista ISD (1998), dealing with sexual harassment committed by a school employee, and Davis v. Monroe County Board of Education (1999), dealing with peer sexual harassment, the U.S. Supreme Court ruled that school districts will be held strictly liable for sexual harassment when an employee in a position to remedial action has knowledge that the harassment is occurring and exhibits deliberate indifference to correcting the situation.

Knowledge Plus Deliberate Indifference
If both criteria can be established, then the school and its personnel in the hierarchy of vicarious liability will automatically be held financially responsible for the harassment. Therefore, the two key issues in the increasing number of sexual harassment lawsuits likely to be filed in the next few years by students and student-athletes because of the #MeToo movement will be: 1) when did someone at the school with the power to intervene on behalf of the victim become aware that sexual harassment was occurring; and 2) did that person immediately take action to remedy the situation?

Recent Sexual Harassment Incidents in SchoolAthletics Programs
The following are five examples from among the dozens of sexual harassment lawsuits involving interscholastic athletic programs that were filed or resolved since the beginning of 2017. Although they occurred before the #MeToo movement began to gather momentum, the cases reflect the typical sexual harassment challenges confronting school and athletics administrators, and they demonstrate the pivotal importance to each case of evaluating the elements of quid pro quo or hostile environment harassment and of analyzing the two liability criteria of knowledge and deliberate indifference.

In November 2017, a civil suit was filed – Doe v. Scottsbluff School District and Klein – in federal court in Nebraska, in which the victim was “groomed,” sexually harassed and sexually assaulted by her high school golf coach, with him compelling her to first have intercourse when she was just 14-years-old. In October, the coach was convicted of sexual assault against Doe and another girl at Scottsbluff High School and he was sentenced to 24-to-32 years in prison. The civil suit against the school will hinge on the questions as to when administrators or athletics personnel became aware of the coach’s misconduct and whether corrective action was then immediately taken that might have prevented or limited the harm to the victim.

In October 2017, in an administrative complaint filed with the Illinois Department of Human Rights – Guzior v. Consolidated District 230 – a cheerleading coach at Stagg High School alleged that her firing was retaliation for reporting sexual harassment by the school’s athletic director in which he repeatedly referred to her as hot, young and in great shape and he pervasively used off-color language and sexual innuendo when speaking to her. The hostile environment claim will turn on whether his comments to the cheer coach constituted “words of a sexual nature” and were sufficiently “severe or pervasive” so as to have created a “hostile work environment.” The district’s liability will then turn on the question whether, once notified of the athletic director’s behavior, did school officials immediately take corrective action.

In June 2017, in Salazar v. San Antonio ISD, the U.S. Court of Appeals for the Fifth Circuit reversed a $4.5 million award to a male student who had been sexually harassed and sexually abused by a male administrator at his school, ruling that after district personnel became aware of the perpetrator’s actions, remedial action was immediately taken, including timely initiation of an investigation by the district’s federally-mandated Title IX Coordinator, immediate suspension and eventual termination of the wrongdoer (who was sentenced in a criminal court to 18 years in prison for sexual assault), and fulfillment without delay of the district’s duties under the Texas Child Abuse Reporting Law. The family argued that the perpetrator himself had knowledge of the harassment and that the ongoing sexual relationship therefore involved a delay constituting deliberate indifference by the district, but the appellate court emphasized that a school cannot be held liable where the harasser is the only person who had knowledge of the situation.

In June 2017, in C.N.C. v. ISD No. 1 of Delaware County, Oklahoma, a federal court ruled in favor of the district and administrators at Jay High School who were sued after the girls basketball coach had “groomed” a 15-year-old player on his team using social media communications and entered into a sexual relationship with her. After pleading guilty to 16 criminal counts, including sexual assault, statutory rape and online solicitation of sexual conduct with a minor, the coach was sentenced to 45 years in prison. In the ensuing civil suit by the victim’s family, the court granted summary judgment to the defendants, emphasizing that after school officials became aware of the coach’s misconduct, they immediately took remedial action and fulfilled all of their duties without delay, including their responsibilities under Title IX and under the Oklahoma
Child Abuse Reporting Act.

In June 2017, in K.S., et al v. Lakewood Public Schools, a federal court in Michigan approved a $575,000 settlement between the district and four female student-athletes, all minors, who were sexually harassed and sexually assaulted by former 10-year major leaguer Chad Curtis while he was serving as a volunteer coach and substitute teacher at Lakewood High School. He was convicted of multiple counts of criminal sexual conduct and sentenced to seven-to-15 years in prison. All four victims filed civil suits directly against Curtis; three of the cases were settled with undisclosed financial terms and the fourth went to trial, resulting in a jury award against him of $1.8 million. The suit by the four against the school district alleged that after school personnel became aware of Curtis’ relationship with the girls, the officials delayed intervening on behalf of the victims and failed to fulfill their mandated Title IX duties of reporting and investigation.

Recommendations for School andAthletic Administrators
Proactive leadership, designed both to protect students and to get ahead of the coming wave of sexual harassment lawsuits likely to result from the #MeToo movement, involves several steps that should be taken by school and athletic administrators.

Step #1: Policy Revision: Update the sexual harassment policy applicable district-wide and to the athletics program to ensure that it is adequately detailed and includes both a statement of purpose and a list of behaviors specifically prohibited regarding interactions with employees, students and student-athletes.

Step #2: Reporting and Investigation: Be sure to include in the policy all of the contact information for the district’s federally-mandated Title IX Coordinator and the Title IX point person at each school. Also set forth in detail the training programs that will be provided for Title IX personnel and the investigatory procedures that will be employed whenever a report of sexual harassment is filed. For details on the federal requirements regarding training, reporting and investigation, consult the Sexual Harassment Policy Guidance issued by the Department of Education’s Office for Civil Rights on April 24, 2015 at www2.ed.gov/about/offices/list/ocr/

Step #3: Communication Strategies: Design the methodologies by which the policy will be communicated to all district personnel, students and parents, including in-service programs, inclusion in contracts and handbooks, incorporation into student-athlete codes of conduct, and posts on school and athletics websites.

Step #4: Monitoring of Policy: Ensure that all aspects of the policy are implemented, followed in a consistent manner by personnel, and that enforcement continues to be a priority each and every school year.