A three-and-a-half year effort by NEA attorneys and Government Relations staff bore fruit last month when the U.S. Department of Education issued its long-awaited official "guidance" on sexual harassment in the schools.
The policy guidance from the Education Department's Office of Civil Rights tells educational institutions that sexual harassment is a form of sex discrimination prohibited by Title XI of the Education Amendments of 1972---and that peer, or student on student, harassment is included in the prohibition.
At the repeated urging of NEA, the Education Department added important cautionary language to its report: "a school must formulate, interpret, and apply its rules so as to protect academic freedom and free speech rights."
Addressing another issue that NEA raised, the guidance urges educational institutions to provide due process for both accused and accusers and stresses the importance of limiting or preventing "public disclosure of the names of both the student who alleges harassment and the name of the alleged harasser."
NEA attorney Michael Simpson, who handled much of the negotiations with the Education Department, says NEA has long been concerned about sexual harassment.
"We have always taken the position that Title IX ought to prohibit sexual harassment and ought to be tough," he notes. "And we believe you ought to have fair procedures for the accused."
In coalition with the National Women's Law Center and other groups, NEA sought first to persuade the Education Department to open up the policy-making process, originally slated to be an Education Department internal process only.
"NEA members nationwide bear witness daily to the real harm caused by sexual harassment in schools and colleges," Simpson wrote in a 1994 letter to Norma Cantu, assistant secretary of education for civil rights, urging her to offer the document for public review and comment.
NEA also told the Education Department that the Association was "deeply troubled" by the Education Department's inability to recognize "the importance of this issue to the five million school employees in this country who are the front-line enforcers of the prohibition of student-on-student harassment, as well as the potential subjects themselves of sexual harassment complaints."
Ultimately, the department agreed to open the process for public comment. As a result, NEA and other groups were able to propose improvements in the language.
The final Education Department guidance, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, mandates that educational institutions provide an environment free of sexual harassment.
The directive also answers many of the questions professors, teachers, and other education employees have about what constitutes sexual harassment and what their responsibilities are when it occurs.
In defense of academic freedom, the guidance notes examples of class material, including "student essays that contain sexually derogatory themes about women," that are protected, noting that Title IX's purpose is to protect students from sex discrimination, not limit academic speech.
The NEA general counsel is currently preparing a summary of the guidance.
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