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Districts Cannot Be Held Liable for Student Harassment, Court Rules

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In a ruling that goes against the grain of several recent decisions, a federal appeals court has ruled that a school district cannot be held liable for failing to stem student-to-student sexual harassment.

The case involves two sisters who were 8th graders at a Bryan, Texas, middle school in 1992-93. The girls claimed they were tormented throughout the year by a boy on their school bus who grabbed their breasts and genitals, and used foul and lewd language.

The girls' parents complained frequently to school officials, who briefly suspended the boy from the bus but allegedly took no other action.

The girls' mother sued the Bryan district under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools and has been held by the courts to cover sexual harassment in education.

A federal district court dismissed the suit, and the U.S. Court of Appeals for the 5th Circuit on April 2 agreed. The 2-1 ruling says the girls had no claim under Title IX because the harassment was not conducted by school employees.

The ruling in Rowinsky v. Bryan Independent School District differs from a February ruling by the U.S. Court of Appeals for the 11th Circuit, which held in a similar case that a Georgia district could be liable for failing to eliminate a sexually hostile educational environment.

The conflict among the circuit courts could make the difficult issue of peer harassment in public schools ripe for review by the U.S. Supreme Court, legal experts said.

The 5th Circuit court rejected the idea that a district could be responsible for peer harassment in the same way it could be liable if a teacher sexually harassed a student. It also rejected the application to a school setting of the principle that holds employers liable for creating a sexually hostile workplace.

"Unwanted sexual advances of fellow students do not carry the same coercive effect or abuse of power as those made by a teacher, employer, or co-worker," said the opinion by U.S. Circuit Judge Jerry E. Smith.

The majority also was unswayed by recent rulings by the U.S. Department of Education's office for civil rights that schools have a duty to stop peer sexual harassment. Judge Smith said the "letters of finding" in specific cases do not represent formal policy, which still limits Title IX enforcement to employees or agents of a school district that receives federal funds.

The decision conflicts with the 11th Circuit's recent ruling in Davis v. Monroe County Board of Education.

That case involved a 5th-grade girl in the Georgia district northwest of Macon who was subjected to months of fondling and sexually explicit language from a male classmate. School officials allegedly did little or nothing despite repeated complaints from the girl's parents.

A panel of 11th Circuit judges reinstated a lawsuit against the district, stating that when a school knowingly fails to correct a sexually hostile environment among students, the harassed student has been denied an education under Title IX. (See Education Week, Feb. 21, 1996.)

The Monroe County district has asked the full 11th Circuit court to review the decision. If the court declines, the district could appeal to the Supreme Court.

In the Texas case, the Rowinsky family has decided to skip seeking a full appeals court review and will appeal directly to the high court, the family's lawyer said.

A federal judge last week struck down part of a Texas law that requires districts to place students in alternative education if they are implicated in felony crimes.

U.S. District Judge James R. Nowlin of Austin said the provision violates students' 14th Amendment right of due process of law because it does not require notice or a hearing before a district removes a student from regular classes.

The Texas law applies to off-campus as well as on-campus crimes and does not require that a student be formally charged before school officials take action.

Judge Nowlin issued his final ruling April 30 in Nevares v. San Marcos Consolidated Independent School District.

A San Marcos teenager who was implicated in an off-campus rock-throwing incident challenged the law after he was threatened with a transfer to an alternative program. (See Education Week, March 20, 1996.)

A lawyer for the San Marcos district said the ruling was the first by a federal court to require due process procedures for placing a student in alternative education. The lawyer, Dorcas A. Green, said the ruling would be appealed.

The National Science Foundation and Texas A&M University have settled a federal lawsuit claiming they refused a 12-year-old girl admission to a summer camp because she was white.

The university and the NSF agreed not to discriminate on the basis of race, color, age, sex, national origin, and disability and agreed to pay the girl $20,000 in damages and legal fees.

The Corpus Christi, Texas, girl, was represented by the Center for Individual Rights, a Washington-based legal organization that has battled affirmative action.

Bill Noxon, a spokesman for the NSF, said the federal agency has been providing money for the summer science camps since 1992. He acknowledged that the camps had been geared toward members of minority groups and disadvantaged students, but said there was no policy declaring white students ineligible.

--Mark Walsh

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