Kathleen Conn's article, Peer Harassment in Elementary Schools: Is Title IX the Answer? was recently published in West's Education Law Reporter.
Dr. Conn, an elementary school principal and a J.D., surveys a number of lower court decisions post-Davis involving student-on-student harassment in the elementary school setting. Most of these decisions concluded that the young plaintiffs failed to satisfy the legal elements of a Title IX claim for peer harassment, whereas "[b]efore the Davis decision, courts were more inclined to find school districts liable for their actions or inaction in resolving complaints of peer sexual harassment, despite the lack of clear standards on which to base their decisions."
She suggests that the "severe and pervasive" legal standard, articulated in Davis, has enabled judges to factor in the perceived inability of a child of elementary school age to intentionally sexually harass another student. But, she points out, the harasser's intent is irrelevant under Title IX if the responsible adults were aware of the problem and could reasonably be expected to protect the victim.
She concludes by encouraging elementary school officials to effectively protect students from peer harassment by recognizing and reporting harmful sexual behavior. They must effectively intervene to curtail the conduct and try new strategies when their efforts are ineffective. At the same time, she argues, it is important not to over-react, especially to victimless sexual conduct: "A simple reminder to the child that such behavior is not proper school behavior may solve the problem... No educator should make a child feel guilty about normal sexual curiosity or exhibitionism, but the child should be taught appropriate school behavior." Sensitivity to the student engaging in sexual conduct is also required because sometimes it is a sign that the student is receiving abuse or harassment at home or elsewhere.
Citation: Kathleen Conn, Peer Harassment in Elementary Schools: Is Title IX the Answer? , 219 Ed. L. Rep. 25 (2007).