What Are the Potential Education-Related Remedies?
Some farmworkers may attend community colleges, seek a GED, or attend English as a Second Language (ESL) classes20. In some instances, sexual violence may be perpetrated by a classmate, instructor or other school personnel, and victims may need legal assistance with the protections and/or remedies available to them through the school, courts and administrative agencies. In other instances, farmworkers may be victims of sexual violence outside the educational setting, but need legal assistance with modifying a class schedule, exam schedule, tuition payment, and other educationrelated accommodations while healing from the assault.
While the information below supports reporting an incident to an educational institution, it is important to understand that there are many barriers to reporting sexual assault in the educational setting. In some cases, victims’ privacy concerns may keep them from wanting to tell anyone at school. In other cases, school policies may require victims to participate in the perpetrator’s adjudication if it was a school-related assault. The institution and personnel involved may blame the victim without sufficiently emphasizing the perpetrator’s responsibility for committing a crime or its own responsibility in not preventing the assault from occurring. Influence the schools in your area to adopt written protocols and policies that give victims the choice of participating in adjudication, allow anonymous reporting and provide victim services and coordination with community resources.
- The U.S. Supreme Court has recognized a private right to action for monetary relief under Title IX of the Education Amendments of 1972. An action can be brought for harassment of a student by a teacher (see, Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998)), and also for student-on-student harassment (see, Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)).
- Victims can also file a complaint with the U.S. Department of Education Office of Civil Rights (OCR). OCR can intervene in cases where there may not be a claim for money damages. See, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, Or Third Parties, published by OCR in January 2001.
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (The Clery Act, 20 U.S.C. § 1092(f)): Colleges and universities must publish reports with the last three years of crime information on each campus. Schools are also required to notify students of crimes that present an ongoing risk.
- The Clery Act also requires that each campus have a sexual assault policy that outlines what actions the campus will take when a sexual assault is reported, procedures used and, among other things, the availability of mental health or other student services for victims of sexual assault.
- Failure to follow the Act does not create a private right of action but will cause an administrative review of the campus policies and possibly can result in sanctions against the campus for failure to follow the Act.
The Family Educational Rights and Privacy Act (FERPA): FERPA protects a student’s educational records. Protection under this law can include two types of information related to sexual violence on or around a school:
- Information about the victim’s complaint when the victim asks that the information be kept confidential; and
- Information about the disciplinary action taken against the perpetrator.
Typically the rights of the student victim under Title IX and the due process rights of the perpetrator can be interpreted so as not to conflict. You need to be clear about whether your client desires disclosure of information and, if not, how you will protect the information from disclosure.
School Handbooks: School handboooks should contain the sexual harassment and sexual violence policies of the schools and are usually available online or they can be obtained pursuant to a Freedom of Information Request. Work with local education institutions to ensure the policies in the handbook provide clear guidelines and protocol, and have policies and adjudication procedures as well as perpetrator disciplinary provisions that would encourage victims to report the offenses.
Civil Protection Order: In some states, a protection order may be obtained by the victim that includes what is commonly known as a “stay away order.” A stay away order can include the home and school of the victim. School personnel should be provided with a copy of the order so that they can assist in the enforcement of the order and call police as necessary.
- Which local educational institutions might farmworkers in my area attend?
- What are their sexual harassment/ violence policies and grievance procedures?
- How can I educate school personnel to be better equipped to work with farmworker victims of sexual assault?
- To which civil attorneys in my community can I refer farmworker victims with education related issues?