Laws that impact the student-to-student relationship

When a peer-to-peer student relationship crosses certain boundaries, students may face severe disciplinary action or criminal penalties. For example, the Texas Education Code imposes requirements on districts for dealing with students who sexually assault, harass or bully other students. One such measure defines bullying and requires a school district to transfer a bullying victim, upon parental request, to a different classroom or campus. Another statute places requirements on school districts to transfer students who have sexually assaulted other students. New statutory provisions criminalize certain types of online student behavior. Finally, teachers should be aware of their responsibilities and liabilities in the event of student-to-student sexual harassment and dating violence.

Bullying

Bullying is defined in the statute as “written or verbal expression or conduct that the school board determines will have the effect of physically harming a student, damaging property or placing a student in fear of harm to him/her self or his/her property, or is severe enough to create an intimidating, threatening or abusive educational environment.” The law requires a school district to transfer a bullying victim, upon parental request, to a different classroom or campus. It mandates that the student code of conduct prohibit bullying, harassment and “hit lists” and ensure that employees enforce the prohibitions; the code also must provide methods for managing bullying and disciplining students. A special education student may not be disciplined for such conduct until an ARD meeting has been held to review the conduct. New legislation clarifies that bullying includes engaging in expression through electronic means and requires school districts to adopt specific policies to address bullying issues. This legislation becomes effective with the 2012-13 school year.

Mandatory transfer of students involved in a sexual assault

A student who is the victim of aggravated sexual assault or sexual assault by another student at the same campus must, upon parental request, be transferred to a different campus than the offender or to a neighboring school district. If the victim chooses not to transfer, the board must transfer the offender to a different campus, or an AEP or JJAEP if there is only one campus in the district at that grade level.

Sexting

A new statute passed during the 2011 legislative session creates a misdemeanor criminal offense for electronic transmission of certain visual material depicting a minor via a practice commonly referred to as “sexting.” A minor commits an offense by knowingly possessing or promoting by electronic means to another minor, visual material that depicts a minor engaging in sexual contact (which is broadly defined and may include some forms of nudity), if the actor produced the visual material or knew that another minor produced it. The statute states that a school administrator who possesses the visual material in good faith due to an allegation of the offense of electronic transmission of material depicting a minor has a defense to the crime of possession of child pornography. In order to rely on that defense, the school administrator must allow law enforcement or school administrators to access the material only as appropriate and take reasonable steps to destroy the material within an appropriate period. Since the defense applies only to administrators or law enforcement officials, teachers and other employees should avoid taking custody of the material and should call an administrator to deal with the material or device. The new statute also requires the development of programs that school districts may use to address the legal, professional and social consequences of sexting. The district is required to make the programs available to parents and students in a grade level the district considers appropriate.

Student-to-student sexual harassment

The existing law pertaining to student-to-student sexual harassment is codified in Davis v. Monroe County Board of Education. In Davis, the United States Supreme Court rejected claims against teacher employees because the case was filed under Title IX, which imposes liability only on educational institutions that discriminate based on gender and deny access to the benefits of an education. Sexual harassment is a form of gender discrimination.

It is important to note that the Court held in Davis that a parent could sue a school district for student-to-student sexual harassment if severe, persistent and highly offensive sexual misconduct impedes a student’s access to the benefits of an education, and the school district, with actual knowledge of the harassment, acted unreasonably in failing to stop the misconduct. Because of this, school employees should pay attention to the following:

• School district policies prohibiting peer sexual harassment require employees who have knowledge of non-minor sexual harassment to report the conduct to a principal or to the district’s Title IX coordinator. Most of these policies do not distinguish “minor” from “non-minor” misconduct. Therefore, if any question exists, an employee should report as required to a principal or preferably to the Title IX coordinator.
• Sexual harassment can occur among students of the same or opposite gender. Some district policies define sexual harassment to include sexual misconduct directed at a student solely on the basis of orientation.
• A victim of sexual harassment may ask an educator to not report the harassment, however that request does not release the educator from the requirements of the law and board policy.

If peer harassment rises to the level of child abuse, failure to report such abuse to Child Protective Services within 48 hours (800-252-5400) may put a teacher in legal and employment jeopardy. Even failure to report as required by district policy could expose a teacher to a reprimand, or worse.

Dating violence

Districts are required to adopt and implement a dating violence policy to be included in the district improvement plan. The policy must contain a definition of dating violence that includes intentional use of physical, sexual, verbal or emotional abuse to harm, threaten, intimidate or control another person in a dating relationship. The policy must address safety planning, enforcement of protective orders, alternatives to protective orders, training for teachers and administrators, counseling for students and awareness education. A new statutory provision allows a juvenile court to defer criminal adjudication proceedings in a case of dating violence to allow the juvenile to attend a 12-week teen dating violence court program designed to educate children who engage in dating violence and encourage them to refrain from the conduct.

Call with concerns

TCTA members should use common sense and comply with policies and the law if aware of bullying or sexually inappropriate conduct or dating violence among students. If a TCTA member is being harassed or is aware of harassment, or has questions about the requirements related to students who bully or sexually assault other students, the member can contact the TCTA legal staff at (888) 879-8282 to discuss options and obligations.