By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:
One of my teachers is a bit of a dope. Over the years, I have received a number of complaints about things he says. Last year, for example, I had to talk with him twice about comments he has made to female students, such as telling one girl that she “looks hot,” and telling another that her tight clothes are not flattering. But after talking to him when I received these complaints, I am sure that the teacher meant no harm and was simply trying to be friendly and helpful.

This year, I received another complaint from a student. Interestingly, the teacher’s comments were directed at another student, and the complainant reported that she heard the teacher tell the other student that she has “nice legs.” I talked to the girl to whom the teacher made the comment, and she just laughed it off. Since the girl with the nice legs wasn’t bothered, I am reluctant to make a big deal about this. Should I?

Signed,
Just Wondering

Dear Wondering:

You should definitely talk to the teacher, and you should impose discipline if this dopey teacher has crossed the line again. We start with the premise that sexual harassment need not be intentional, and the teacher’s state of mind is less important than the impact of his comments. Sexual harassment is defined, in part, as unwelcome conduct of a sexual nature that has the purpose or effect of creating a hostile, offensive or intimidating school environment. You may and should look at the effect of the teacher’s statements, not just that he did not intend to be a sexual harasser.

It is irrelevant that the subject of the teacher’s comments did not mind. First, given the teacher’s role as authority figure, we generally do not ask whether students have consented to teacher conduct, such as consent to a search or consent to comments of a sexual nature. Students under the supervision of a teacher are presumed to be incapable of consent when the conduct is potentially invasive of their personal rights. Thus, a teacher can be guilty of sexually harassing a student even though that student enjoys the attention.

More generally, the issue is whether the statements or actions of a teacher have created a hostile, offensive or intimidating school environment. The classroom environment affects all students. Accordingly, students who are not themselves the target of a teacher’s inappropriate comments have every right to complain. You should act promptly to investigate the allegation and to discipline the teacher if indeed he made the comment alleged.