Harassment in Education

last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women’s Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Overview and Core Elements for Sexual Harassment Laws in the Educational Setting

Legislation related to sexual harassment in education is critical to ensuring women’s and girl children’s right to education in an environment free from discrimination and violence. Sexual harassment in schools and other educational settings is a prevalent problem around the world. A 2001 report by Human Rights Watch documented extensive harassment and violence perpetrated by teachers and male students against girls in South African schools. In Malawi, 50% of surveyed school girls reported experiencing sexual harassment. A study of school girls in one south Indian state also documented girls’ vulnerability to harassment. A recent Czech study suggests that more than 75% of Czech university students had been harassed at some point during their schooling. The American Association of University Women reports that 81% of students in the U.S. experience some form of sexual harassment during their schooling. This study further states that 40% of surveyed students reported that teachers and other staff sexually harass students in their school. (See: Human Rights Watch, Scared at School, 2001; UNiTE Fact Sheet - How prevalent is violence against women? (Feb. 2008); Fiona Leach & Shashikala Sitaram, Sexual harassment and abuse of adolescent school girls in South India, 2 Education, Citizenship and Social Justice 257 (2007); Study finds high levels of sex harassment at Czech Universities, Jan. 15, 2010; AAUW, Harassment-Free Hallways: How to Stop Sexual Harassment in School, 2004).

Like workplace sexual harassment, a multi-level approach is required to address harassment in educational settings. But because sexual harassment in schools negatively affects children, often leading to higher dropout rates among schoolgirls, legislation and policy must be very aggressive. In addition, national legislation and local policy must address the fact that students may also be perpetrators of sexual harassment in the educational setting. This requires special consideration in the drafting of law and policy.

Core Elements for Sexual Harassment Laws in the Educational Setting

As with sexual harassment in other settings, many countries deal with sexual harassment in educational settings through a variety of legal regimes, including criminal law, anti-discrimination legislation, and education laws, as well as local policies and disciplinary codes. Laws should:

  •  Prohibit harassment by teachers, staff, and fellow students, keeping in mind the age of alleged student perpetrators;
  • Prohibit harassment of admitted students as well as those students seeking admission to educational institutions;
  • Reflect a zero-tolerance policy for sexual relationships between teachers and students;
  • Make schools financially liable for harassment that occurs on their premises or during school-related activities;
  • Require that all educational institutions, both public and private, have sexual harassment prevention policies;
  • Require that sexual harassment policy information be made available to students, parents, and staff in an accessible way (ie. training, posting policies in easily visible locations, translating policies into other languages).
Unwelcomeness Requirement

Drafters should be aware that ‘unwelcomeness’ requirements (often imposed in sexual harassment laws in other contexts) should be reconsidered in the educational setting. Women and girls in educational settings, where teachers and other authority figures have complete control over the environment, often have no option to express that conduct is unwelcome. Unwelcomeness provisions should be removed or substantially modified when drafting laws related to the educational setting. For example, Israeli law removes the requirement for a victim to express that conduct is unwelcome when the victim is “a minor or a helpless person, [or] where a relationship of authority, dependence, education or treatment is being exploited.” (See:
Prevention of Sexual Harassment Law, Art. 3(a)(6)(a)) In the United States, under federal Title IX legislation, conduct must be unwelcome for it to constitute sexual harassment, but conduct is considered “unwelcome if the student did not request or invite it and considered the conduct to be undesirable or offensive.” Also, the “age of the student, the nature of the conduct, and other relevant factors affect whether a student [is] capable of welcoming the sexual conduct. A student’s submission to the conduct or failure to complain does not always mean that the conduct
was welcome.” (See: U.S. Department of Education, Sexual Harassment: It’s Not Academic, p.5, 2008)
Students Harassing Students
 
Laws should make clear that it is prohibited for students to sexually harass other students, sometimes known as peer-to-peer harassment. Laws that prohibit any person from committing harassment in the course of educational activities generally include this behavior. Some countries have chosen to specifically prohibit harassment perpetrated by students. Legislation in New South Wales, Australia provides that students over the age of 16 years are “adult students” and are prohibited from harassing other students or their teachers. “Adult students” are subject to sanction, but students under the age of 18 are not liable for monetary damages. (See: H. Lewis & E. Norman, Civil Rights Law & Practice, 290-92, 2001).
 
Laws should make clear that it is prohibited for students to sexually harass other students, sometimes known as peer-to-peer harassment. Laws that prohibit any person from committing harassment in the course of educational activities generally include this behavior. Some countries have chosen to specifically prohibit harassment perpetrated by students. Legislation in New South Wales, Australia provides that students over the age of 16 years are “adult students” and are prohibited from harassing other students or their teachers. “Adult students” are subject to sanction, but students under the age of 18 are not liable for monetary damages. (See: Anti-Discrimination Act, sec. 22E) Courts may also interpret laws to cover peer-to-peer harassment, such as has been done in the United States where federal Title IX anti-discrimination legislation has been held to impose liability on school districts for peer-to-peer harassment in certain instances. (See: H. Lewis & E. Norman, Civil Rights Law & Practice, 290-92, 2001)
Broadly Define Educational Institution and Educational Activities
 
Legislation should broadly define educational institutions, so as to include public and private institutions, primary and secondary schools, as well as colleges, universities, and vocational training. Law in New South Wales, Australia, defines educational authority as “a person or body administering a school, college, university or other institution at which education or training is provided.” (See: Anti-Discrimination Act, sec.4(1)) The new Equality Law in the UK makes provision specifically for schools as well as “further and higher education.”

Laws should also make clear that students are protected from harassment connected with any of the academic, educational, extracurricular, athletic, and other programs or activities of the educational institution, regardless of where the activity takes place.