Published Online: May 7, 1997

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Lawyers Say ED Guidance on Sex Harassment Stirs Confusion

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Anaheim, Calif.

The U.S. Department of Educations recent policy guidance on how schools should respond to sexual harassment of students was a hot topic at a gathering here of school district lawyers.

"These guidelines were written as an advocacy tool," Jennifer W. Jacobs, a lawyer with the Houston firm of Bracewell & Patterson, said during the April 24-26 annual meeting of the Council of School Attorneys. The 3,000-member group is affiliated with the National School Boards Association.

Ms. Jacobs, who has successfully defended the Bryan, Texas, school district in a high-profile case involving peer sexual harassment, raised concerns about the guidance from the Education Department's office for civil rights.

She maintained that the OCR is using the guidelines to advance a sweeping definition of school district liability for sexual harassment of students.

In its final policy guidance released March 13, the OCR stresses that districts must have policies and procedures for responding to complaints about employee-student sexual harassment and student-on-student harassment. ("ED Issues Guidance On Sex Harassment of Students," March 19, 1997.)

It is the department's approach to peer sexual harassment that is causing the most concern for districts. The department says that districts can be liable under Title IX of the Education Amendments of 1972 for failing to eliminate peer sexual harassment. Title IX bars discrimination based on sex in schools receiving federal funds.

The department's guidance is considered important advice even though federal courts are divided about the extent to which districts can be held liable for failing to deal with sexual harassment of students.

Ms. Jacobs said one area of confusion stems from the fact that the OCR guidelines state that schools may use their general disciplinary procedures to deal with students accused of harassing other students. But the guidelines also call for schools to have a specific grievance procedure for sexual-harassment complaints.

That distinction is frustrating, said Ms. Jacobs, whose law firm represents several districts in the Houston area.

"You should expect every principal and assistant principal in your districts to know the name and number of the district's Title IX coordinator," she said to the group of several hundred school lawyers attending the conference.

Another concern is the guidelines' statement that a district could be considered on legal notice of a Title IX violation even if the alleged harassment is reported to a bus driver or teacher instead of to administrators. The OCR reasons that young students would most likely report harassment to a teacher or other school worker they trust.

"Train your bus driver," Ms Jacobs said. "Train your cafeteria workers" how to handle such complaints.

Ms. Jacobs noted that the OCR guidance conflicts with a ruling by the U.S. Court of Appeals for the 5th Circuit, which held last year that districts cannot be held liable for peer sexual harassment in most circumstances.

That ruling came in the case involving her client, the Bryan school district.

The U.S. Supreme Court refused to review that ruling last fall, although most legal experts expect the court to take up the issue at some point.

No one was present from the Education Department to defend the OCR guidance. However, the department's view is that the 5th Circuit court was wrong to bar most peer-sexual-harassment claims under Title IX.

The conduct of teachers and other school employees outside of school sometimes raises questions about whether they should be fired or otherwise disciplined. David L. Yewell, a veteran school lawyer from Owensboro, Ky., says district lawyers should counsel board members and superintendents to study the relevant law closely in all such cases.

At a session here, he provided examples from his work as a school board attorney. One involved a newspaper photo of high school teachers and coaches drinking beer in a tavern as they watched a basketball game. A board member called for the educators to be punished, noting that they are role models for students.

Another example involved a board member who observed a male middle school teacher leave a gay bar holding hands with another man. The board member said this could not be tolerated in the community.

A third example involved a school bus driver who was arrested for driving under the influence of alcohol in her personal car. The woman, it turns out, had been taking a heavy dose of cold and flu medicine, which raised her blood-alcohol level above the legal limit.

Mr. Yewell said that in most of these types of incidents, a board member calls the district's lawyer and asks, "Can't we get rid of this person?"

"Try to have the courage to sit down with the board and address some important factors," he said, including whether the off-duty conduct adversely affected students, how long ago it occurred, and the likelihood that it would happen again.

Mr. Yewell said that in the first two examples, the board probably would not have recourse to discipline the teachers because they were engaged in lawful conduct. He said the bus driver who was driving while impaired most likely could and should be disciplined, because the violation "directly reflects upon the actual position responsibilities of that employee."

--MARK WALSH mwalsh@epe.org

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