In February, a male swimmer from Fishers, Indiana was allowed to compete in the state swimming championship meet despite three accusations of sexual harassment by female members of his own swim team. At most high schools, boys’ and girls’ swimming teams practice together and compete at the same meets. But the reason he was allowed back into the pool was because the girls’ swim season had ended (Indiana held the state championships for the girls’ teams during the two weeks before the boy’s championships). Thus the pool was no longer deemed a “hostile environment” because the girls were already gone.
This is a clear example of “safety through sex segregation.” Practices such as this may have been the norm during the early part of last century, but today almost no one advocates segregation by sex to solve problems of sexual harassment.
Legal questions should also be keeping the Fishers school board up at night.
The school is likely violating Title IX, the federal law dating back to 1972 that forbids discrimination in education on the basis of sex
It is common to associate Title IX with female sports. Many people think Title IX stands for equity in sports programs. And, true enough, the law led to a nationwide increase in resources dedicated to women’s sports in educational institutions. But that is not the issue confronting the Fishers swim program.
Fishers, and high schools like it, are risking legal liability in court as well as investigation by the Department of Education’s Office for Civil Rights. If a school turns a blind eye to sexual harassment or, worse, protects a known harasser from consequences—by, say, forcing the female swimmers to bear the burden of avoiding the male swimmer—the young ladies (and their parents) can take the school to court. And win.
Many also think Title IX only applies to colleges or institutions of higher education. In fact, landmark cases extending Title IX to cover a student’s right to be free of sexual harassment have been brought by girls in K-12 schools. Twenty years ago, the Supreme Court of the United States held that schools could be held liable for student-on-student sexual harassment in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), which involved students in 5th grade.
As discussed in a previous blog post by John Gerboth of PHG Law Group, Title IX applies equally to public and private K-12 schools. In Connecticut alone, the Office for Civil Rights has currently opened more Title IX investigations against municipal school districts than against colleges and universities.
The male swimmer at Fishers has not been accused of a crime. His identity is being withheld. However, an actual crime is not necessary for a court to find a violation of Title IX. The actions of the Fishers School Board risk triggering a protracted and expensive lawsuit, one which the school would likely lose.