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Issue of Sexual Harassment in Schools Moves to Supreme Court

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By Mark Walsh

Christine Franklin was a sophomore at North Gwinnett High School in suburban Atlanta in 1986, when, she claims, her economics teacher began making sexually suggestive remarks to her.

The instructor allegedly would bring Ms. Franklin into his office for discussions that began innocently but turned to questions about whether she would consider "doing it" with an older man.

The pattern of harassment, she says in court documents, continued for the next 15 months, with the teacher eventually pressuring her to have sex with him three times during school hours--twice in the fieldhouse and once in the school's stadium press box.

According to Ms. Franklin, school officials moved slowly to address rumors that the teacher was harassing her and other female students. Even after they began an investigation, Ms. Franklin says, the school's band director urged her to drop her complaint to avoid embarrassment.

This week, the U.S. Supreme Court will hear arguments on whether Ms. Franklin, who graduated from North Gwinnett in 1989, should be allowed to sue school officials for money damages for tolerating her alleged sexual harassment.

A federal district judge in Atlanta in 1989 dismissed her lawsuit against the school district and the band director, and the U.S. Court of Appeals for the 11th Circuit last year upheld the judge's ruling.

But earlier this year, the High Court agreed to consider a facet of the dispute, Franklin v. Gwinnett County School District (Case No. 90-918), that could revive Ms. Franklin's suit: whether Title IX of the Education Amendments of 1972, which bars sexual discrimination in federally funded education programs, permits victims of intentional discrimination to recover compensatory damages.

The resolution of that question alone has major legal and fiscal implications for school districts, because a victory by Ms. Franklin could also pave the way for damage awards to students who are victims of discrimination on the basis of race or handicap.

But beyond posing the narrow legal issue before the High Court on Dec. 11, the case has cast the spotlight on the broader issue of sexual harassment in the nation's schools and their administrative offices.

In a twist of fate, the High Court will consider a case arising from charges of sexual harassment barely two months after the nation received a crash course on the topic via the controversial hearings on Anita F. Hill's charges against Clarence Thomas, now an Associate Justice.

The combination of the Thomas hearings, the Georgia case, and the passage of a new federal civil-rights law that expands the rights of victims of discrimination has underscored for school officials the seriousness of sexual-harassment complaints.

"Cases involving sexual-harassment claims will continue to increase in number in the years ahead," predicted Hendrik C. de Bruin, a University of New Mexico researcher who recently presented a paper on sexual harassment in the classroom at a meeting of the National Organization on Legal Problems of Education.

"School districts should be holding workshops and seminars to acquaint students and employees of their rights," he said.

Frequent Targets

As large employers, school districts already are frequently the target of sexual-harassment complaints stemming from supervisor- employee relationships and conduct between co-workers.

Among recent examples, the Oceanside, Calif., school beard in October approved a $200,000 settlement with a junior-high-school teacher and coach who alleged that her school's principal grabbed her buttocks during a student-faculty basketball game.

When the teacher rebuffed that overture and others, the principal allegedly removed her from her coaching duties. The principal eventually resigned.

Also, the principal of Elizabeth (N.J.) High School was suspended with pay in October after a teacher alleged that the principal kissed and fondled her.

Less frequent, but equally serious, are cases involving harassment of students by school employees, including claims of child sexual abuse.

Teacher- student harassment cases also include instances in which school employees discriminate against females over traditional sex roles.

Last year, the U.S. Education Department's office for civil rights found that a male shop teacher at Victor Valley (Calif.) High School ridiculed a female student and would not let her work on car engines with boys in the class.

The teacher resigned in the wake of the investigation, school officials said. They added that they have taken other steps to prevent the occurrence of such incidents in the future.

Student Behavior

School officials elsewhere are also becoming more concerned about harassment of students by other students.

Last year, officials at Amherst Regional High School in Amherst, Mass., drew national attention with a new policy that defined sexual harassment as "unwanted sexual attention." The policy cited examples such as "staring or leering with sexual overtones" and "spreading sexual gossip."

John E. Heffley, the principal of the school, said media reports mockingly focused on the subjective nature of the examples offered.

"With all the attention it got, I think students and staff here felt that the school was ridiculed for trying to bring attention to a serious problem," he said. School officials have eliminated the examples from the policy, which remains in force.

"In all candor, young people don't have a clue as to what really constitutes sexual harassment," Mr. Heffley said.

A school district in Minnesota, meanwhile, recently learned an expensive lesson about its failure to act to halt the alleged sexual harassment of a student by a peer.

A student at Central High School in Duluth filed a complaint with state human-rights officials after school officials refused to paint over the wall of a boys' bathroom that included crude comments about her written by unknown students.

In September, the human-rights department approved a settlement of $15,000 to be paid by the district to the girl. The settlement also required the district to adopt a sexual- harassment policy and introduce a harassment-awareness program for students, employees, and parents.

Other cases involving district liability for student harassment of other students are pending, said Tracy Elftmann, the deputy commissioner of the human- rights department.

"Under our state law, school districts have a responsibility to make sure that a hostile environment does not exist in the schools," she said.

O.C.R. Investigation

In the case before the Supreme Court, the teacher who allegedly harassed Ms. Franklin resigned after the school district completed its investigation.

No criminal charges were brought against the teacher, and he was not named as a defendant in the student's federal lawsuit.

Ms. Franklin sued the teacher and the school district in separate lawsuits in the Georgia courts, but both suits were dismissed, said one of her lawyers, Hillard J. Quint.

In the summer of 1988, after the teacher had quit and before her senior year, Ms. Franklin filed a complaint with the U.S Education Department's office for civil rights, alleging a violation of Title IX.

After a six-month investigation, the O.C.R. concluded that the teacher and school officials had violated Title IX by their treatment of Ms. Franklin and the handling of her allegations. But the federal office accepted the district's assurances that it was taking action to correct the violations.

Ms. Franklin filed her federal suit in December 1988, seeking $11 million in compensatory damages.

Legal Theory

The case rests on the legal theory that remedies under Title IX can be expanded by the courts beyond the injunctive relief that they normally would provide to include the awarding of money damages in cases of intentional discrimination.

The two lower courts declined to expand the remedies available under the law, saying that the Congress did not expressly provide for compensatory damages when it adopted Title IX.

After losing in the two lower courts, Ms. Franklin received unexpected help from the Bush Administration, which urged the Supreme Court to hear her case. Although the Administration sided against Ms. Franklin on the question of the scope of remedies available under Title IX, it urged the Court to hear the case because federal appellate courts are split on the issue.

Ms. Franklin, 21, is now married and lives in Atlanta, her lawyer said.

Both sides in the case agree that the specifics of her alleged sexual harassment may have little bearing on the legal question now before the High Court.

"The details, as disturbing as they are, have no analytical or substantive significance for the resolution of the legal issue presented," contends the Gwinnett County school district in the brief it filed with the High Court. Ms. Franklin's lawyer agreed.

"I just don't think the underlying facts of the case will matter one way or the other," said Mr. Quint, an Atlanta lawyer.

He also discounted the significance of the fact that this will be the first sexual harassment-related case to be heard by the Court since the addition of Justice Thomas to the bench.

Many of the groups that opposed Mr. Thomas's nomination to the High Court also happen to back Ms. Franklin's case, including the Lawyers' Committee for Civil Rights Under Law.

Long-Term Impact

The Court's ruling is expected to have a significant long-term impact on how sexual-harassment charges are handled by schools.

Ellen J. Vargyas, a senior lawyer with the National Women's Law Center, argues that the availability of compensatory damages under Title IX is necessary for the fight against sexual harassment in the schools. She co-wrote a friend-of- the court brief filed on Ms. Franklin's behalf joined by 20 women's groups and other organizations, including the National Education Association.

"The case is a remedies case, but the reason people fight for remedies is they enforce rights," she said.

"Can she get a remedy for the wrong she suffered?," Ms. Vargyas continued. "If you can't get a remedy, the protection is not worth the paper it is written on."

Most lawyers agree the case will turn on the question of whether the Congress intended for Title IX to include damages remedies. The law said nothing explicitly about the awarding of such damages.

Both the Gwinnett County district and the Bush Administration have told the High Court that no damages remedy exists under Title IX without a clear showing to that effect from the Congress.

"For decades at least, Congress has devoted great care to the remedies it has provided for statutory violations," contends U.S. Solicitor General Kenneth W. Starr in a brief filed with the Court.

But Ms. Franklin's lawyers argue that the High Court has already stated, in the 1979 case Cannon v. University of Chicago, that Title IX could be enforced through private lawsuits. By extension, they say, the remedies should include damage awards.

"Once Congress has authorized a private right of action, the courts should presume that full enforcement is available unless Congress indicates otherwise--which it has not done with respect to Title IX," their brief contends.

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