In Harassment Suits, a New Era Emerges
A small but growing number of lawsuits around the country are seeking to hold school districts responsible for the sexual harassment of students by their classmates.
Most of the cases contend that school officials ignored or shrugged off repeated complaints from students or their parents about inappropriate sexual behavior by other students.
The U.S. Department of Education recently warned districts that they must take stronger steps to combat so-called peer harassment, and a similar message is emerging from the federal courts.
Such cases have yet to result in huge damage awards, but education-law experts, citing the history of sexual-harassment lawsuits in the workplace, believe the likelihood of future costly judgments against districts is high.
"The word is starting to get out that parents do have a right to go into court," said Merrick T. Rossein, a law professor at the City University of New York who has studied the issue and is representing a family in one such case.
The courts, with some exceptions, have recently sided with students and their families on pivotal legal issues that have allowed such lawsuits to go forward.
Several federal judges have ruled that peer harassment in public schools is similar to "hostile environment" harassment in the workplace. This type of harassment--when co-workers make repeated lewd or sexual remarks, for example--violates federal anti-discrimination law just as supervisor-employee harassment does, the U.S. Supreme Court has ruled.
But the school-related cases raise some complex legal issues. Students are not employees, and the courts have yet to determine clearly the degree to which school officials are responsible for their behavior.
String of Court Cases
In 1994, boys in Eve Bruneau's 6th-grade class in New York state's South Kortright district tormented her so badly that she had to move to another school, her parents say.
The boys allegedly called Eve and other girls such names as "ugly dog-faced bitch" and "whore," and frequently snapped the bras and ran their fingers down the backs of the female students.
Eve's mother said that teachers and school officials failed to take her complaints seriously.
One teacher told the girl's mother that the boys were merely flirting and teasing and that Eve was "so beautiful that the guys would be all over her in a couple of years," the family's lawsuit claims.
The suit charges that the district in rural Delaware County, about 50 miles west of Albany, violated Title IX of the Education Amendments of 1972, which prohibits sexual discrimination in schools that receive federal funds.
The Supreme Court has ruled that sexual harassment is a form of discrimination barred under Title IX, and that victims may seek money damages from districts.
But that 1992 case, Franklin v. Gwinnett County Public Schools, dealt with harassment of a student by a teacher. The high court has yet to rule on the question of harassment by other students.
In July, a federal judge rejected the South Kortright district's request to throw the family's suit out. U.S. District Judge Thomas J. McAvoy of Binghamton, N.Y., ruled that students alleging peer harassment have a valid claim under Title IX.
"When an educational institution fails to take steps to remedy peer-on-peer sexual harassment, it should be held liable to the harassed student for that discriminatory conduct," the judge said in his July 24 ruling in Bruneau v. South Kortright Central School District. The district has denied the allegations and a trial is scheduled to begin this week.
Other federal courts have issued similar rulings:
- Also in July, a federal judge allowed a peer-harassment suit to go forward against the Petaluma, Calif., schools.
It involves a former junior high school girl who claims that her complaints to a school counselor about harassment by boys and other girls failed to stem the abuse. U.S. District Judge Claudia Wilken of Oakland said a district can be sued if school officials fail to respond to peer sexual harassment that they knew about or should have known about.
- A federal judge in Iowa ruled in June that a former high school student's claim against the Postville, Iowa, district should go to trial. U.S. District Judge Michael J. Melloy of Cedar Rapids ruled that it is appropriate to analyze peer-harassment claims under Title VII of the Civil Rights Act of 1964, which covers workplace discrimination, including sexual harassment.
- In the first major ruling on peer harassment by a federal appeals court, a panel of the U.S. Court of Appeals for the 11th Circuit borrowed several principles from the workplace-discrimination law to establish a test for student-to-student harassment.
That February ruling in a Georgia case, Davis v. Monroe County Board of Education, says that a district or school officials may be liable for sexual harassment if, among other factors: the harassment affected the conditions of the student's education, such as resulting in dropping out of school; and the school knew or should have known of the harassment and failed to take action. ("District May Be Held Liable for Harassment, Court Rules," Feb. 21, 1996.)
However, while several lower courts have since relied on that test, the Davis ruling has been set aside by the full 11th Circuit court, which is scheduled to rehear the case next month.
Meanwhile, another federal appeals court has rejected the idea that school districts should be held responsible for peer harassment.
In April, a panel of the U.S. Court of Appeals for the 5th Circuit ruled 2-1 that two Bryan, Texas, girls who were repeatedly sexually harassed by a boy on their school bus had no claim under Title IX.
The court held in Rowinsky v. Bryan Independent School District that peer harassment in schools should not be analyzed under Title VII rules that apply to the 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," the majority said. ("District Not Liable for Student Harassment, Court Rules," May 8, 1996.)
Lawyers for the two girls have appealed to the Supreme Court, where they have been joined by the Clinton administration, as well as by women's groups such as the NOW Legal Defense and Education Fund and the National Women's Law Center.
Civil rights lawyers say that employers did not wake up to the problem of sexual harassment in the workplace until juries issued some big damage awards. School districts that fail to heed that lesson face a similar rude awakening, they warn.
"I think school officials are on notice that they have to have more than a piece of paper saying they will not tolerate sexual harassment," said Mr. Rossein of the City University of New York, who represents the family of Eve Bruneau.
Many districts began to address peer harassment in recent years as sexual harassment in general became a nationally discussed topic. At the same time, rulings from the Education Department's office for civil rights that found some districts in violation of Title IX gained wide publicity. ("The Letter of the Law," June 21, 1995.)
In one case, the OCR ruled that the Eden Prairie, Minn., district failed to stem harassment on the school bus of students as young as age 6.
Although the OCR has drawn attention to the issue, it rarely imposes financial penalties. But districts are often viewed as deep-pocketed targets for private lawsuits.
Soon after the Supreme Court's 1992 ruling in the Franklin case that money damages were available, plaintiffs began hitting districts with suits involving peer harassment, as well as teacher-student or employee-student sex discrimination.
So far, however, only a handful of peer-harassment lawsuits have reached a jury, and the damage awards have been fairly small.
In June, a federal jury awarded an Iowa family $5,200 to pay for future psychological care for a girl who claimed the Mason City district failed to deal with her complaints about harassment.
But the judge in the case set the verdict aside last month, ruling that the lawyers for the girl did not prove the district had an "intent to discriminate" in failing to remedy her harassment.
In a Missouri case, a federal jury earlier this year awarded a former elementary school student in the Kearney district $5,000 in damages for sexual harassment by a boy on her school bus.
Lawyers for the district note that the damage award was far less than what the girl's lawyer sought: $1 million in the original complaint and $225,000 in closing arguments.
Dispute Over Guidance
In its draft guidance on peer harassment, which was sent to school districts Aug. 14, the Education Department essentially agrees with the 11th Circuit in the now-vacated opinion in the Davis case.
"When a student is sexually harassed by a fellow student, and a school official knows about it but does not stop it, the school is permitting an atmosphere of sexual discrimination to permeate the educational program," the report from the office for civil rights says.
The 20-page document is available on the department's World Wide Web site at http://www.ed.gov/offices/OCR/peers.txt.
School officials and others have until Sept. 30 to respond before a final version is released.
Some school board lawyers found the OCR's guidance dismaying.
"It seems to be a guideline for plaintiffs' attorneys on how to plead their cases," said Gwendolyn H. Gregory, the deputy general counsel for the National School Boards Association. "I would have liked to see more guidance on how to prevent sexual harassment, because it isn't easy."
Elizabeth Kennedy, a lawyer for the Mason City, Iowa, district, said the guidance sets "a potentially onerous standard. It requires the school district's response [to peer harassment] to be perfect, as opposed to the best response under the circumstances."
Though many education lawyers hope the Supreme Court will step in at some point and decide what standards should apply to peer harassment, some believe the high court may wish to let the issue simmer in lower courts for a while.
"I think this is still in the infant stages," said William Prescott, a lawyer for the Monroe County, Ga., district, which was sued in the 11th Circuit's Davis case.