Molesters in Our Midst
A lawsuit is a sample size of one, but sometimes that one case can give us shivers for what it portends. Notwithstanding two unanimous decisions on sexual harassment from the U.S. Supreme Court in the past two years (for sex discrimination in educational institutions under Title IX--Franklin v. Gwinnett County School District, 1992--and for sexual harassment in the workplace under Title VII--Harris v. Forklift Systems Inc., 1993), educators have yet to receive clear guidance from the courts with regard to their baseline responsibilities for protecting children from sexual molesters.
On March 3, 1994, the U.S. Court of Appeals for the 5th
issued its long-awaited opinion in Jane Doe v. Taylor (Tex.) Independent School District, a case about school administrators' liability for the sexual molestation of an adolescent girl by her teacher. ("Principal Can Be Held Liable in Sexual Abuse Of Student, Court Rules,'' March 16, 1994.) Jane Doe claimed that the school superintendent and the high school principal failed to protect her from the teacher's advances, inspite of reports to the principal about the teacher's misconduct from the school librarian, a counselor, two community members, and at least one student.
In a divided decision, which included three dissenting opinions, the Fifth Circuit ruled that under the 14th Amendment, school administrators can only be held liable for sexual molestation by a school employee if the administrators show deliberate indifference to the child's constitutional right to bodily integrity. Under the facts that Jane Doe presented, the court ruled that the principal could be held liable for failure to intervene--"deliberate indifference''--but not the school superintendent.
One judge described the principal as "indecisive, insensitive, inattentive, incompetent, stupid, and weak-kneed,'' a person whose behavior was deplorable. Nevertheless, the dissenting judges did not believe Jane Doe's injury rose to the level of a constitutional injustice.
As another judge observed, the core issue of the case was not about a high school coach who happened to have an affair with a student. "It is about abuse of power,'' the judge wrote. Indeed, for educators, the case requires us to reflect on how such an abuse of power as Jane Doe described could have happened in a school. We must also ask why some school administrators look away from the molesters in their midst.
The whole school culture suffers when exploitive relationships are allowed to flourish. Although we have begun to examine peer-to-peer sexual harassment in schools, too many educators continue to tolerate adult-to-student sexual relationships, sometimes casting them dismissively as romances. What happened to Jane Doe was not "an episodic act of an interloper ... '' or a private relationship between two people. It was, in fact, a public performance with ramifications not only for the adolescent girl but for the school's faculty, parents, and other students.
First, the case illustrates that some educators have an inadequate understanding of the catastrophic harm that occurs when a care-giver, such as a school employee, sexually abuses a schoolchild. If permitting peer-to-peer sexual harassment transforms schools into training grounds for domestic violence, what do schools become, then, when administrators tolerate the molestation of children by school employees?
Second, the very fact that Jane Doe sought redress in federal court shows that state-law protections--the child-abuse-reporting laws, for example--may not be adequate to protect schoolchildren from abuse. Apparently, no administrator reported the allegations of sexual molestation to the Texas Department of Human Services, the agency responsible for conducting child-abuse investigations. We may need to strengthen state reporting laws and provide better training to educators about their reporting obligations.
Finally, although this case illustrates indifference to child abuse, we have seen other incidents in which hysteria about child abuse swept away common sense and ruined the reputations of school employees. We must find an equilibrium between frenzy and indifference when we investigate charges of sexual molestation in the schools. Until we do so, some administrators will perceive the danger of pressing forward to be greater than doing nothing.
One of the judges in Jane Doe's case quoted Justice Oliver Wendell Holmes: "... I hate justice. ... [I]f a man begins to talk about that, for one reason or another, he is shirking thinking in legal terms.'' But perhaps the injury that occurs when an adult exploits a student is an injury that cannot be adequately described or remedied by legal discourse. What we need is a new understanding of this problem, different interventions, better ways of determining culpability, and new lenses for comprehending what's going on in front of our eyes in our schools. We should begin by believing what we see.
Richard Fossey is an associate professor of education, law and policy at Louisiana State University. Nan Stein directs the Sexual Harassment in Schools Project at the Wellesley College Center for Research on Women.