How to use this guide

Content warning: This guide contains information that may be triggering for you, especially if your child has been/you suspect they have been sexually harassed, assaulted, or abused. Please be aware of your emotional and mental needs while reading.

How to use this guide: The purpose of this Know Your Rights Guide is to help you understand your rights and options if your child has experienced sexual harassment, abuse, or assault at school, or at the hands of a fellow student, teacher, or school staff. This guide is not official legal advice. Laws frequently change and can be interpreted in different ways, so we cannot guarantee that all of the information in this guide is accurate as it applies to your specific situation.

If you would like to get free legal advice or counseling about your child situation, please fill out this form to make an appointment with one of ERA’s trained legal counselors (ENOUGH advocates). All services provided are completely free and confidential.

Introduction

Sexual harassment, assault, and abuse are sadly all too common in the K-5 (kindergarten through 5th grade) setting. Unfortunately, there is not much specific numerical data collected on a large scale to reflect the devastating reality of sexual harassment in elementary schools across the country. Nonetheless, numerous studies, stories, and legal cases confirm the reality of peer-on-peer and teacher-on-child sexual harassment, assault, and abuse among children of this age.

Elementary school should be a place where all young students can learn and thrive. If one child is harming another, it is imperative that the school intervenes to both protect your child and address the harmer’s problematic behavior at this early age. Schools must not turn a blind eye and wait until the situation escalates as the harmer ages. Through early intervention by caring adults, school officials can achieve positive, empowering, and lasting outcomes for all children involved and facilitate a school culture of respect and body self-ownership.

Intervening in instances of sexual harassment or assault at the elementary level can greatly help minimize the growth of the epidemic of sexual inequity and harm in higher levels of education to the benefit of all students.

Please see our Speaking with Your Child About Sexual Harassment guide for tips and resources on how to begin an age-appropriate conversation with your child about sexual harassment, assault, and abuse.


Resources

What laws protect your child?

Title IX of the Education Amendments of 1972

Title IX ensures that students cannot be excluded from educational activities on the basis of their gender and protects students from gender discrimination at school. Since sexual harassment and assault fall under the definition of gender discrimination, survivors of such conduct have important protections under Title IX. Title IX applies to all educational programs that receive federal funding (including private schools). 

Under Title IX, some of your child’s rights include:

  • Feeling safe at school
  • Having their report of sexual harassment or assault taken seriously and investigated within a reasonable timeframe
  • Receiving certain protections such as ensuring that your child can avoid interactions with their harasser/assailant in class

Similarly, your child’s school has certain obligations, including:

  • Sharing or making available its sexual harassment policies
  • Providing information on how to report the sexual harassment or assault
  • Intervening immediately if harassment or discrimination is witnessed by a teacher or other adult employed by the school
  • Investigating reported incidents of sexual harassment and assault
  • Keeping your child safe

Title VI of the Civil Rights Act of 1964

The protections a student receives under Title IX may also intersect with Title VI protections if your child is also facing race-based harassment and/or the sexual harassment to which they are subjected has a racial component or underlying racial bias. Title VI ensures that individuals cannot be denied access to any program or activity that receives federal funding on the basis of the person’s race, ethnicity, or national origin. Most educational programs in the United States receive some form of public funding and thus must follow Title VI requirements.

K-5 vs. college

Although much of the legal framework applies across all levels of education, there are practical differences that set sexual harassment and assault occurring at the elementary school level apart from the same conduct on college campuses. 

In the context of peer-on-peer sexual harassment or assault, a key difference at the K-5 level is the purpose of the discipline or response. Given the likely young age of the child exhibiting the problematic behavior, the school’s focus should center on taking a caring and deliberate stance toward both protecting the victim and addressing the harmer’s behavior. In these instances, the school is positioned to both facilitate the harmer’s learning of proper behavior and explore whether any harm or other alarming stressors are instigating the behavior. Early intervention helps to ensure that the school sufficiently addresses improper behavior before it escalates and has the power to prevent further harm to your child, the harmer’s current classmates, and future peers as the child ages. Ideally, intervening when the harmer is so young will also help them avoid future negative life consequences from escalating harmful behavior.

For peer-on-peer sexual harassment or assault at the high school or college level, the school’s response pivots as the harmer is either an adult or nearing adulthood and the severity of the conduct is often elevated. The response no longer centers on correcting a young child’s behavior, but rather, focuses on measures to hold the harmer accountable and protect other students.

Sexual harassment and assault at the K-5 level necessarily involves minors, which triggers certain protections outside of Title IX. This type of conduct implicates not only the Title IX process but also state child sexual abuse laws. As such, in addition to the school’s investigation and resolution process, certain state-specific external processes can be automatically triggered by a report of sexual abuse against a minor by any person. 

  • For example, California state law requires that if specific school employees, known as mandated reporters, become aware of child abuse, including child sexual abuse, they must immediately make a report to the Police or Sheriff’s Department, the County Probation Department, or the County Welfare Department/County Child Protective Services. The laws cited here are California laws; Click here to  to check the applicable laws in your state. 

A school’s Title IX obligations and laws surrounding mandated reporting are not mutually exclusive. A mandated report of child sexual abuse does not absolve the school of their duty to carry out their Title IX obligations. The purpose of the Title IX process is to address any interruption to access to education that the incident(s) may have or has had. This is separate and distinct from the purpose of mandated reporting.


Resources

School intervention

In instances of peer-on-peer sexual harassment, the young age of both your child and the harmer necessitate interventions that may differ from how middle schools, high schools, or colleges address the same conduct. These age-specific interventions have the power to mitigate the retraumatizing impact of certain traditional interventions on your child and ensure that the harmer’s behavior does not escalate or continue as the child ages. 

Ways the school can help your child if they are facing trauma:

  • Take a trauma-informed approach that recognizes the specific needs of your child and the way trauma may impact their behavior at school.
    • The school should learn how to recognize behavior resulting from trauma and provide a safe space where the student feels supported by their teachers. This includes NOT disciplining a child for conduct that directly results from their trauma, such as acting out in class. 
  • Provide referrals to outside support services to help the child and/or their caretakers work through trauma.

Schools can best support your child when they recognize that the trauma children face as a result of sexual harassment or assault is not isolated from their other lived experiences and previous traumas. By employing an intersectional approach that takes into account your child’s various identities, the school can understand the way culture, race, gender identity, ability, and religion impact how your child experiences and manifests their trauma. The school can also transform this understanding into culturally sensitive action attentive to the specific experiences and needs faced by your child.   

It is also important for your school to implement preventative education conducted by trained teachers and school personnel that goes beyond the traditional method of teaching children to protect themselves from unwanted sexual contact. Your school can also foster a caring environment in the classroom by implementing — beginning in the earliest years of elementary school — age-appropriate lessons on acceptable behavior and how to form caring, respectful relationships with one another.


Resources

How can ERA help?

Full “Know Your Rights” Guides on sexual misconduct and gender discrimination in education can be found on our website here. The guides contain comprehensive information regarding students’ rights under Title IX and the actions they can take. Please note that this guide applies to both K-12 and Higher Education (college) and is thus broader in scope. Your child’s rights remain largely the same, however, age-specific best practices may change. (See K-5 cases vs. higher education section above.)

ERA also provides free legal advice and legal representation for education related civil rights matters, including sexual harassment and assault. You can apply to speak with a legal advocate for free by filling out this form, which can also be found by clicking on the purple “Legal Advice & Resources” bar on any page of our website. An ERA attorney or legal advocate will review your information and get in touch with you regarding next steps. Our Legal Advice & Counseling program can provide you with case-specific information and/or referrals to help you and your child.

Equal Rights Advocates is a 501 (c)3 nonprofit organization, and all our services are completely free and confidential. 

For more information about how the process might go if you apply for legal services with us, visit our “What to Expect” page.

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