Students today experience harassment based on sex, race, color, national origin, disability, and more at extraordinary rates. Yet those who report harassment are often ignored or punished by their schools instead of receiving help. Unfortunately, the federal courts have created harsh litigation standards that place significant obstacles in the way of students seeking to hold their schools accountable under federal civil rights laws when schools fail to address harassment and protect students’ access to education.

States can take action to create stronger, uniform protections for students against harassment based on sex, race, color, national origin, disability, age, and more by passing a state version of the federal Students’ Access to Freedom & Educational Rights (SAFER) Act. The SAFER Act was first introduced in Congress in 2022 and has been endorsed by nearly 100 organizations, but federal passage of the SAFER Act may take some time. In addition, while the Biden administration’s 2024 Title IX rule was an important step in the right direction, it will soon be rescinded under the second Trump administration. 

State lawmakers must act now to codify anti-harassment protections for students in their state. If you would like to learn more about the SAFER Act or review a model bill, please contact Elizabeth Tang ([email protected]) at the National Women’s Law Center.

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Schools are failing to protect students from harassment.

Students today experience harassment at alarming rates. For example: 

• • Sexual harassment: 21% of girls ages 14–18 have been kissed or touched without their consent. 10% of PK–12 students experience sexual misconduct by a school employee by the time they graduate from high school. 26% of women, 23% of transgender and gender-nonconforming students, and 7% of men are sexually assaulted during their time in college.
  • Anti-LGBTQI+ harassment: 83% of LGBTQI+ students ages 13–21 experience harassment based on their sexual orientation, gender identity, or gender expression each school year.
  • Pregnancy-based harassment: 64% of pregnant or parenting girls ages 14–18 report not feeling safe at school as a barrier to attending school, compared with 32% of girls overall.
  • Race-based harassment: Race-based harassment comprises 45% of reported hate crimes at institutions of higher education and 23% of all reported harassment in K-12 schools.
  • Disability-based harassment: Students with disabilities are two to three times more likely to be harassed or bullied than their nondisabled peers.

Yet students who report harassment are often ignored or punished by their schools instead of receiving help. When schools fail to address harassment, students suffer many educational harms, including lower grades, lower attendance, lost scholarships, reduced school completion rates, and emotional distress. 

Federal laws do not adequately protect students from harassment.  

Unfortunately, the federal courts have created harsh litigation standards that place significant obstacles in the way of students seeking to hold their schools accountable under federal civil rights laws when schools fail to address harassment and protect students’ access to education. Under federal court standards, a student victim of harassment must prove: 

1. The harassment was “severe and pervasive.” Different federal courts have held that these incidents are not “severe and pervasive”: forced kissing and groping (not “severe”); oral rape (not “pervasive”); vaginal rape (not “pervasive”). Similarly, a federal court held that it was not “severe and pervasive” when a Black girl suffered repeated physical abuse and derogatory comments about her skin color from her classmates at school for 1.5 years.
2. The school had “substantial control” over the harassment. Many federal courts have held that schools have no control over harassment that occurs off campus, even if both the victim and harasser are students or employees at the school, which means that these schools have no legal obligation to address the victim’s complaints of harassment. 
3. An “appropriate official” had “actual notice” of the harassment. Federal courts have been inconsistent in who they consider to be an “appropriate official,” often holding that schools are not responsible for addressing harassment when these types of employees know about the harassment: professors, teachers, teacher’s aides, athletics coaches, guidance counselors, security guards, bus drivers, vice principals, principals, superintendents, or even anyone who is not a school board member. In addition, some federal courts have held that schools do not have “actual notice” of harassment even when officials hear repeated “rumors” that a teacher is “dating” multiple high school students or know that a teacher has previously abused other students.
4. The school responded with “deliberate indifference” to the harassment. Proving a school’s “deliberate indifference” is notoriously difficult. For example, a federal court held that a school did not respond with deliberate indifference when it took minimal action to address harassment experienced by three Black sisters, which actually resulted in the harassment continuing for more than a decade, including the sisters being called the n-word and finding a noose next to their car. Similarly, several federal courts have held that schools did not respond with deliberate indifference when they suspended or expelled students after they reported rape; when a school did not discipline a professor who admitted to harassing a student until eight more victims came forward; and when a school closed its investigation to ensure that the athlete-harasser could transfer to another university with a clean record.
5. The student was harassed again after the school learned about the first incident of harassment. In four states (Kentucky, Michigan, Ohio, and Tennessee), institutions of higher education are not liable for ignoring student-on-student sex-based harassment unless the victim is harassed again after the school had notice of the first incident. A federal appellate court has also suggested that this rule could apply in seven other states (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota).
6. The student suffered a non-emotional injury. In 2022, the Supreme Court ruled that students who experience disability discrimination (including harassment) cannot sue their schools under federal civil rights laws for the emotional distress they suffered. While the Court’s ruling did not address sex discrimination, many federal courts across the country have applied this restriction to sex-based harassment. But many student victims of harassment cannot point to other resulting harms, such as lost wages or physical injuries, which means they may not have any meaningful remedy in court.  

States can protect students from harassment by passing a SAFER Act.  

States can take action to create stronger, uniform protections for students against harassment based on sex, race, color, national origin, disability, age, and more by passing a state version of the federal Students’ Access to Freedom & Educational Rights (SAFER) Act. The SAFER Act was first introduced in Congress in 2022xxv and has been endorsed by nearly 100 organizations, but federal passage of the SAFER Act will take some time. In addition, while the Biden administration’s 2024 Title IX rule was an important step in the right direction, it did not change federal court standards, only applied to sex-based harassment (not race, disability, or other harassment), and was unfortunately vacated in 2025. State lawmakers must act now to codify protections for students in their state. 

In addition, states can offer other protections against harassment: 

• Supportive measures: Require schools to notify students who report harassment about available supportive measures (e.g., a safety plan, adjustments to homework/exams, counseling). 

• Anti-retaliation: Prohibit schools from punishing complainants for school policy violations that occur during the harassment (e.g., drug/alcohol use, consensual sexual activity, self-defense) or that occurs after the harassment as a result of it (e.g., being late or absent, expressing trauma symptoms, talking about the harassment with other students). Prohibit schools from punishing complainants for making a “false report” of harassment without actual evidence that it was false.  

• Training: Require schools to conduct annual training on harassment for all students and staff, and require the state’s department of education to provide grants to schools for such training. 

Many states have passed SAFER Act provisions. 

In recent years, many states have passed protections that are in the SAFER Act, including California, Connecticut, D.C., Hawaiʻi, Illinois, Maine, Massachusetts, Nevada, New Hampshire, New Mexico, Ohio, and Oregon. In addition: 

• In 2023, Colorado became the first state to require PK-12 schools to address sex, race, disability, and other discrimination (including harassment) regardless of whether it is considered “severe or pervasive,” including by offering supportive measures and not unfairly disciplining complainants. 

• Since 2025, Nevada has allowed PK-12 students and staff to sue their schools in state court for failing to enforce a policy against sex-based harassment (including anti-LGBTQ+ harassment). Under the required policy, schools must make a plan to implement supportive measures within 3 days of receiving a complaint, regardless of whether an investigation is requested; and use trauma-informed procedures to investigate complaints.  

• In 2026, Michigan introduced the SAFER Act, which would students and school staff to sue their schools in state court for failing to address harassment based on sex, race, disability, religion, and other protected traits. Schools would be required to provide victims with comprehensive supportive measures, an investigation or restorative process (if requested), avenues for confidential disclosure, and enhanced protections against retaliation. 

Learn more about the SAFER Act! 

If you would like to learn more about the SAFER Act or review a model bill, please contact Elizabeth Tang ([email protected]).