Sexual Misconduct by Staff Towards Students: Definition, Impact, and Prevention

Sexual misconduct by school staff towards students is a grave issue with devastating consequences. Court cases and media attention have brought this problem to the forefront, highlighting the urgent need for preventative measures and effective responses. This article provides an overview of sexual misconduct in schools, exploring its definition, the various forms it can take, the legal landscape surrounding it, and strategies for prevention and accountability.

Defining Sexual Misconduct

Sexual misconduct is behavior by an educator that is directed at a student and intended to sexually arouse or titillate the educator or the child. It encompasses a range of behaviors, including physical, verbal, or visual actions. Examples include touching breasts or genitals of students; oral, anal, and vaginal penetration; showing students pictures of a sexual nature; and sexually-related conversations, jokes, or questions directed at students.

Goorian (1999) describes two types of sexual misconduct recognized by the law:

Quid pro quo: This occurs when a school employee explicitly or implicitly grants a student a favor in exchange for sexual gratification. The employee may, as a condition for a student's participation in an educational activity or in return for an educational decision, request that the student submit to unwelcome sexual advances, grant sexual favors, or agree to engage in other verbal, nonverbal, or physical conduct of a sexual nature.
Hostile environment: This refers to unwanted and unwelcome verbal or physical contact of a sexual nature that is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an educational program or activity.

Sexual misconduct behavior can also be classified into three levels that include contact and non-contact behavior:

Level I: Includes non-contact behavior such as exhibitionism and sharing sexual photos. Contact behavior includes fondling, touching, kissing, and sexual hugging.
Level II: Is non-contact actions that include sexual comments, taunting, and asking about sexual activity.
Level III: Is contact behavior that includes all types of sexual or genital contact.

Legitimate Nonsexual Touching

It is important to distinguish between sexual misconduct and legitimate nonsexual touching. The US Department of Education's Office of Civil Rights (OCR) offers examples of legitimate nonsexual touching: a coach hugs a student who makes a goal or a kindergarten teacher hugs a student who skinned a knee. However, repeated hugs under inappropriate circumstances can make for a hostile environment.

Read also: Guide to Female Sexual Wellness

Scope of the Problem

Educator misconduct covers a variety of offenses. The most publicized type in the media and the High Court system are ones where school employees make poor judgments in their relationships with their students and sexual misconduct occurs. Public school educators can include but are not limited to administrators, counselors, secretaries, teachers, substitute teachers, teacher's aides, coaches, custodians, security guards, bus drivers, cafeteria workers, volunteers, or others who may encounter a student in a school-based setting.

Examples of educator misconduct:

In 1997, Alaskan teachers had disciplinary action taken for the following types of misconduct: sexual misconduct; conviction of theft; theft of Ritalin from student supplies and use of fraudulent transcript.
In 1997, a Pennsylvania teacher surrendered his license because he was showing pornographic movies and giving alcohol to eighth and ninth graders.
In 2007, 167 Ohio bus drivers were found to have (DUI) Driving Under the Influence or other drug related license suspensions.
In 2013, a California elementary school teacher was sentenced to twenty-five years in prison for lewd conduct against 23 Los Angeles school children at Miramonte Elementary School.
In 2016, the Boston Globe released a report claiming that since 1991, at least two hundred students attending more than sixty private institutions in New England have accused staff members, including administrators and teachers, of sexual abuse or harassment. Reportedly more than ninety lawsuits had been filed in conjunction with the accusations and over thirty school employees had been fired.

Several additional private schools began comprehensive investigations into sexual misconduct following the report, with New Hampshire's elite institution St. Paul's School reporting in 2017 that nearly twenty of its staff members were suspected of engaging in acts of sexual misconduct over the span of decades.

In April 2023, the New York Post reported six teachers were arrested across the US for sexual misconduct with students.

Understanding the Offenders

While teachers and coaches tend to be under media scrutiny most often, sexual misconduct exists in all educator categories. Music teachers or coaches often spend one-on-one time with individual students, and as a result they are more likely to sexually abuse. Between 1995 and 2003, 25 percent of the educators in Texas who were coaches or music teachers were disciplined for sexual infractions involving students. Washington state teachers who coach were "three times more likely to be investigated by the state for sexual misconduct than non-coaching teachers". One researcher placed educators who abuse into two categories-those who abuse children younger than seventh grade and those who abuse students in eighth grade and above. Those who abuse young children in seventh grade or below tended to be high achieving teachers who were respected by the public and their peers. This sort of notoriety protects the abuser from investigation. The educators who abuse older students were typically average teachers who engaged in sexual misbehavior due to bad judgment.

Psychological profiles show female teachers who are involved in sexual misconduct with students are generally socially immature rather than sexually deviant.

How Sexual Abusers Manipulate

Students are taught to trust their instructors and leaders, but sexual abusers in schools manipulate students into sexual contact by lying, controlling, and exercising their authority over them. Often predators victimize students who are vulnerable or marginalized and often needy for attention. These marginal students are also more likely to be unaccepted as plausible and trustworthy complainants. In elementary schools, the abuser is often a favorite teacher and is often professionally accomplished. Successful educators are most likely to connect quickly and easily with children. At the later levels of education, namely middle and high schools, abusers are not necessarily always wonderful educators. Initially, the acts are more often open opportunities, a result of poor choices or a misguided sense of authority.

Most abuse occurs with "grooming" and enticement. Abusers try to spend additional time with students, and they may send invites to non-education-based activities like trips, movies, and parties that occur during after-school hours. Abusers may also buy students gifts, tell sexual jokes, and tease them sexually. This form of verbal abuse is a method of "grooming" victims. As such joking continues without being reprimanded, abusers may advance their intimate play by touching and making other sexual advances that probably will not be reported.

Offenders work hard at maintaining secrecy and silence. Many children have been abused by others, or they fear punishment. Some children do not realize that they are being abused. However, they may be able to understand the inappropriate relationship as shameful, unwanted, wrong, or frightening. Children often assume that such behavior is "love," as this is explained to them by their abusers. Offenders use intimidation, exploitation of power, and manipulation of a child's affection to keep the misconduct a secret.

The Legal Landscape

Several laws and court cases have shaped the legal framework surrounding sexual misconduct in schools.

Read also: Read more about Sex Education

The No Child Left Behind Act of 2001 (NCLB) was an amendment to the Section 5414 mandate of the Elementary and Secondary Education Act of 1965 (ESEA) that called for a deeper exploration into the issue of sexual misconduct in school systems. This mandate required the US Department of Education to administer a literature review study of sexual abuse in US schools. This review is called Educator Sexual Misconduct: A Synthesis of Existing Literature.
Title IX of the Education Amendments of 1972 is considered one of the most important legal protections from educational sexual misconduct, and it is used by many victims who were sexually abused by educators to plead their cases. Though this amendment avoids dealing directly with educator sexual harassment, it restricts all forms of sex discrimination in any organization that collects federal money. According to the US Department of Education Office for Civil Rights' guidelines, schools are required by the Title IX regulations to adopt and publish grievance procedures providing for prompt and equitable resolution of all sex discrimination complaints, including complaints of sexual harassment. Students should be notified of the procedures which should be written in language appropriate to the age of the school's students. Without a widely understood grievance procedure in place, a school (or school district) is held liable regardless of whether sexual harassment has occurred.
In the 1992 court case Franklin v. Gwinnett County Public Schools, Christine Franklin sued for $6 million in a civil suit against her school district. Franklin claimed that she was continually sexually harassed beginning in the fall of 1986. Originally, the Title IX statutes did not authorize damages to solve the problem legally, but they allowed back pay and prospective relief for school employees. The lower courts figured that since she was not an employee at the time of the harassment, she could not receive monetary damages. However, in a summary judgment, the Supreme Court decided to enforce Title IX legally by authorizing a damages remedy.
In 2010, childhood sexual abuse survivor and child advocate Erin Merryn began urging legislators in Illinois to pass laws requiring school districts to add age-appropriate child sexual abuse education to elementary school curricula, and educate teachers, administrators, and parents about abuse prevention. Illinois was the first state to pass what became known as Erin's Law on February 14, 2011. Other states have since passed similar legislation. According to the National Conference of State Legislatures, as of 2015, twenty-six US states had passed legislation mandating that states study or develop curricula for age-appropriate child sexual abuse education and prevention; in many cases, the laws also stipulate a type of counseling or safe way for children to report cases of sexual misconduct and require training for school personnel.

From 2010 to 2020, the number of statutes aiming to protect students from this type of abuse nearly doubled, but the proliferation of the definition and the lack of standardized penalties left much to be accomplished. In 2020, around half of the states had specific laws or statutes protecting children from educator sexual misconduct.

School District Liability

School districts may be held liable for a teacher's misconduct under certain circumstances.

In 1998, the court case Gebser v. Lago Vista Independent School District involved a student in the eighth grade and a high school teacher who maintained a sexual relationship for over a year. The student asked for damages for sexual harassment, insisting that the school district and offending teacher had infringed upon her rights as stated under Title IX. The student claimed the teacher acted as the school district's agent, as he was employed by the school district, making the district liable. The student also faulted the school district on the grounds that it had never warned or educated instructors, students, and parents about the realities and dangers of sexual harassment. In the end, The Supreme Court supported the lower courts, concluding that damages could not be recovered because school officials with power to correct the teacher misconduct did not have knowledge of the misconduct. Therefore, the district could not be held liable by the student. The Supreme Court also held that the district did not constitute deliberate indifference because of lack of a grievance procedure.
However, in Doe v. Warren Consolidated Schools (2003), a federal district court in Michigan ruled that the school district could be held liable for teacher sexual harassment under both Section 1983 and Title IX because school administrators knew of a teacher's long history of sexual misconduct with female students. The district failed to remove him from having contact with students. The court ruled that the district could be held liable for sexual misconduct because the district knew the employee's sexual misconduct history and did not take steps to try to prevent contact with the students.

High-Profile Cases

Sexual misconduct cases in the media have brought attention to the issue and its consequences.

In State of Florida v. Beth Friedman (1999), a 42-year-old Broward County public school teacher was under suspicion of having sexual relations with a 15-year-old student. Though Friedman confessed to her involvement and the jury acquitted her of statutory rape, she was convicted of contributing to the delinquency of a minor because she had given the student drugs and alcohol.
One of the most-known cases, Washington State v. Letourneau (2000), involved a Seattle elementary school teacher, Mary Kay Letourneau. Married with four children, Letourneau began a sexual relationship with her sixth-grade student, Vili Fualaau, in 1996. She was arrested in 1997.

Consent: A Critical Element

Consent is a crucial aspect of defining and addressing sexual misconduct. It is defined as permission that is clear, knowing, voluntary, and expressed prior to engaging in and during an act. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.

Key aspects of consent:

Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
Consent may be withdrawn at any time.
Previous relationships or prior consent cannot imply consent to future sexual acts; this includes “blanket” consent (i.e., permission in advance for any/all actions at a later time/place).
Consent cannot be given by an individual who one knows to be - or based on the circumstances should reasonably have known to be - substantially impaired (e.g., by alcohol or other drug use, unconsciousness, etc.). Substantial impairment is a state when an individual cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction). This also covers individuals whose substantial impairment results from other physical or mental conditions including mental disability, sleep, involuntary physical restraint, or from the consumption of alcohol or other drugs. Being impaired by alcohol or other drugs will never function as a defense for any behavior that violates this policy.
It is the obligation of the person initiating the sexual activity to obtain consent.
An individual cannot consent who has been coerced, including being compelled by force, threat of force, or deception; who is unaware that the act is being committed; or who is coerced by a supervisory or disciplinary authority. Force is defined as violence, compulsion, or constraint; physically exerted by any means upon or against a person. Coercion is the application of pressure by the respondent that unreasonably interferes with the complainant's ability to exercise free will. Factors to be considered include, but are not limited to, the intensity and duration of the conduct.
A person who does not want to consent to sex is not required to resist or verbally object. Withdrawal of consent can be manifested through conduct and need not be a verbal withdrawal of consent (i.e. crying, pulling away, pushing away, not actively participating, lying there, uncomfortable or upset facial expression).
Consent may not be given by an individual who has not reached the legal age of consent under applicable law.

Institutional Policies and Procedures

Many educational institutions have implemented policies and procedures to address sexual misconduct. These policies often include definitions of prohibited conduct, reporting mechanisms, investigation processes, and disciplinary actions.

For example, Mercy College of Ohio does not discriminate on the basis of sex, gender, or sexual orientation in its educational programs and activities. Mercy College is committed to building and preserving a community in which its members can learn, work, live, and conduct business together free from all forms of sex discrimination, including sexual harassment. The policy applies to Sexual Harassment that occurs within the College’s Education Programs and Activities and that is committed by an administrator, faculty member, staff, student, contractor, guest, or other member of the College community.

Reporting and Investigation

A student, parent, staff member, or other third party who believes that a student has been subjected to inappropriate sexual conduct may report the incident to the principal/headmaster or the district’s Title IX coordinator. School employees are mandatory reporters of possible sexual misconduct toward students. A school or district administrator will promptly investigate allegations of sexual misconduct, even when the incident is also being investigated by law enforcement. The district’s obligation is to determine if there has been a violation of an internal policy, including the student code of conduct. Interim measures to ensure the safety of the student(s) involved will be taken. If the investigation results in a finding of a policy violation, the district will take steps to end the misconduct, prevent any further misconduct, remedy its effects and take disciplinary action as appropriate under the circumstances.

To find an individual in violation of sexual misconduct only a preponderance of evidence standard needs to exist. This means it is “more likely than not” that the violation occurred and is less strict than “proof beyond a reasonable doubt”.

Prevention Strategies

Preventing sexual misconduct requires a multi-faceted approach involving education, training, and clear professional boundaries.

Education and Training: Schools should provide age-appropriate education to students about sexual misconduct, consent, and reporting procedures. Staff members should receive training on identifying and preventing sexual misconduct, as well as understanding their legal obligations as mandatory reporters.
Clear Professional Boundaries: School staff members must maintain clear professional boundaries with students. This includes avoiding one-on-one situations whenever possible, refraining from personal relationships with students, and being mindful of their interactions with students both inside and outside of school.
Supportive Measures: Non-disciplinary, non-punitive individualized services offered, as appropriate, and reasonably available, and without fee or charge, that are designed to restore or preserve equal access to the College’s Education Programs and Activities without unreasonably burdening another party, including measures designed to protect the safety of all parties implicated by a report or the College’s education environment, or to deter Sexual Harassment. Examples of Supportive measures include: counseling, extensions of academic or other deadlines, course-related adjustments, modifications to work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures.
Robert J. Shoop, educational law expert at Kansas State University, is nationally recognized as a forensic expert in the area of school law, with a focus on sexual harassment, abuse prevention and risk management. He has appeared as a guest on CNN, the Today Show, 20/20 and MSNBC, among others. Shoop is a member of the editorial advisory board for the Educator’s Guide to Controlling Sexual Harassment and has served as a forensic expert witness in more than 45 court cases.

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