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Federal Courts Split Over Schools' Responsibility for Peer Sexual Harassment

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The federal courts continue to struggle with one of the biggest issues in school law: whether school districts and officials can be held liable for sexual harassment of students by other students.

In a victory for districts, one federal appeals court ruled last month that school officials cannot, under most circumstances, be held liable for incidents of so-called peer sexual harassment.

The Aug. 21 ruling by the full U.S. Court of Appeals for the 11th Circuit in Davis v. Monroe County Board of Education was the second by a federal appeals court to reject a legal standard that could result in school districts' being held liable if they failed to respond to reports of peer harassment. The U.S. Court of Appeals for the 5th Circuit issued a similar ruling last year.

But a separate ruling last month by another appeals court took the opposite view of school officials' liability under Title IX of the Education Amendments of 1972. This law, which bars discrimination based on sex in schools receiving federal funds, has been the basis of a growing number of lawsuits by students who allege that school officials did not adequately respond to complaints about harassment from other students.

In the ruling handed down a week before the 11th Circuit decision, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, ruled in Oona R.-S. v. McCaffrey that school officials have a "clearly established" duty under Title IX to take "reasonable steps" to prevent sexual harassment of students by other students.

The Aug. 13 ruling came in a case in which a 6th grade girl in the Santa Rosa, Calif., district was allegedly sexually harassed by a student-teacher and male classmates.

The three rulings present the kind of conflict among federal circuit courts that could lead the U.S. Supreme Court to take up the issue, legal experts said.

"At this point, the split is pretty apparent," said Deborah L. Brake, a lawyer with the National Women's Law Center.

OCR's View Rejected

Ms. Brake and other lawyers with the Washington-based advocacy group represent the plaintiff in the Georgia case that led to the ruling by the 11th Circuit court, which is based in Atlanta.

The suit alleges that school officials in the Monroe County, Ga., district failed to respond adequately to complaints from the mother of a 5th grade girl who was harassed by a male classmate who fondled her and spoke to her in a sexually explicit way.

The full appeals court threw out the suit, ruling 7-4 that schools cannot be held liable for peer sexual harassment under Title IX the way businesses can be responsible for eliminating sexually hostile environments among their employees under Title VII of the Civil Rights Act of 1964, the main federal job-discrimination law.

The majority said that "students are not agents of the school board" and that their misbehavior cannot be disciplined in the way a business can discipline its employees.

The court rejected the broad view of Title IX taken by the U.S. Department of Education's office for civil rights.

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