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Students Sexually Harassed By Peers May Collect District Damages

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Students may recover money damages from school districts for sexual harassment by other students, but only if they prove that school officials intentionally failed to stop the harassment, a federal judge has ruled.

The ruling by U.S. District Judge Eugene F. Lynch of San Francisco apparently is the first to state that students harassed by peers can win damages from districts under Title IX of the Education Amendments of 1972, which bars sexual discrimination in schools receiving federal funds.

The U.S. Supreme Court ruled last year that Title IX could be enforced against schools through private lawsuits that seek damages, and not just through the threat of a cutoff of federal funds.

Since then, lower federal courts have refused to bar damage suits involving students who claim harassment by a school employee created a "hostile environment,'' a standard similar to that for cases involving claims by a worker against a boss.

Judge Lynch said his Aug. 30 ruling in Doe v. Petaluma City School District was the first to affirm that "student-to-student sexual harassment is actionable under Title IX.''

However, the judge largely dismissed the lawsuit, which was filed on behalf of a junior high school girl against the California district and its officials.

"To obtain damages,'' the judge wrote, "the plaintiff must prove intentional discrimination on the basis of sex on the part of an employee of the educational institution, not just that an employee or employees of the institution knew or should have known of the hostile environment and failed to take appropriate action to end it.''

He gave the plaintiffs 30 days to amend their suit to show intentional discrimination by school officials.

Jokes in Junior High

Anne Shelton, the lawyer for the student identified in court papers as Jane Doe, said the ruling was significant even though the judge granted the defendants' motion to dismiss the suit.

"We have a decision for the first time that peer-to-peer harassment is a violation of Title IX,'' Ms. Shelton said. "I can only hope that other judges take heed of this decision.''

The lawsuit alleges that while Jane Doe, now 15, was in 7th and 8th grades at Kenilworth Junior High School, she was the subject of a cruel running joke about masturbation.

The girl and her mother complained repeatedly to a school counselor, who did little more than say the comments would subside in time, according to the lawsuit. Some students eventually were suspended for making their comments.

The girl left the school in March 1992, first for another public school and later for a private girls' school.

Her lawsuit seeks $1 million in damages from the district.

'Circumstantial Evidence'

Larry Frierson, a lawyer for the Petuluma district, said officials there were pleased because the judge granted most of the defendants' motion to dismiss the case. He said there was no intentional discrimination by school officials.

But Ms. Shelton said she was pleased the judge gave her time to amend the suit. The judge wrote that "the school's failure to take appropriate action, as alleged in plaintiff's complaint, could be circumstantial evidence of intent to discriminate.''

"The door was not shut by the judge,'' Ms. Shelton said. "He said, 'Yes, you have shown these facts, but you haven't shown me enough intentional discrimination.'''

The problem of student-to-student sexual harassment has received greater scrutiny recently.

Last year, the Petaluma district settled a sexual discrimination lawsuit filed on behalf of another female student at Kenilworth Junior High. The girl and her mother were displeased with the way the district handled complaints about boys who "mooed'' the student and commented on her breasts.

The suit was settled out of court for $20,000, and the district also appointed a committee to develop a student-harassment policy. (See Education Week, Feb. 10, 1993.)

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