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Report Underscores Difficulties of Whole-School Reform

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Washington

The U.S. Supreme Court last week confronted one of the biggest issues in education law: Under what circumstances can school districts be held liable under federal anti-discrimination law for a teacher's sexual harassment of a student?

During oral arguments in a case from a small Texas district, several justices appeared inclined to limit the liability of districts for their employees' sexual harassment of students.

Lawyers for the Clinton administration and women's groups have urged the high court to adopt a standard that would make it easier to sue districts under Title IX of the Education Amendments of 1972 for a teacher's sexual relationship with a student.

Title IX prohibits discrimination based on sex in educational programs that receive federal money.

"The absence of notice to a high-ranking official" should not absolve districts of liability for a teacher's harassment of a student, argued Beth S. Brinkmann, a Department of Justice lawyer.

The lawyer for the plaintiff in Gebser v. Lago Vista Independent School District (Case No. 96-1866) told the justices during the March 25 arguments that teachers can use the power inherent in their positions to foster a sexual relationship with their students.

"In this case, the teacher singled out this young girl" for conduct that amounts to sexual harassment, said Terry L. Weldon, the lawyer for Alida S. Gebser, who is seeking monetary damages from the Lago Vista district for the sexual relationship she had with a former high school teacher.

Liability Standard

But the lawyer for the 650-student district argued that districts should not be held liable for sexual harassment under Title IX unless they have actual knowledge of the harassment and fail to respond to it.

"School districts around the country" need to know the legal standard under which they "could be subject to [court] judgments in the millions," said Wallace B. Jefferson, the lawyer representing the Texas district.

The issue of liability for employee-student harassment remains largely uncharted territory.

There has been an explosion in lawsuits seeking damages from districts since 1992, when the Supreme Court ruled in the case of Franklin v. Gwinnett County Public Schools that plaintiffs may sue for monetary damages for violations of Title IX. But lower federal courts have been struggling over the standard for holding districts liable.

The Lago Vista case began when Alida S. Gebser first met teacher Frank Waldrop in an after-school "great books" discussion group. According to court documents, when the then-14-year-old Ms. Gebser entered Lago Vista High School in the fall of 1991, Mr. Waldrop singled her out for special attention.

By spring 1992, Mr. Waldrop had had sex with the student for the first of numerous times. Ms. Gebser testified that she viewed the then-52-year-old teacher as a mentor and was "terrified" about what to do about his sexual advances.

In her sophomore year, Ms. Gebser was in Mr. Waldrop's class. The teacher would occasionally ask if she had time to "study psychology," which was his code for having sex.

The affair was discovered when the police found the couple in a wooded area in January 1993. Mr. Waldrop was immediately barred from the school and later lost his job and state teaching certificate. He served jail time on a charge of attempted sexual assault.

Ms. Gebser and her mother sued the district, but two lower federal courts threw the suit out. The U.S. Court of Appeals for the 5th Circuit, based in New Orleans, held in 1997 that a district cannot be held liable under Title IX for sexual harassment of students by teachers unless a top supervisor had knowledge of the conduct and failed to remedy it.

No One Knew

The district's lawyers emphasized to the high court last week that school and district officials had no knowledge of the sexual relationship.

"No one in the school administration knew about it," Mr. Jefferson said. "There were no rumors," and the pair never had sex on school grounds, he added.

But Justice Anthony M. Kennedy interjected with concern that Mr. Waldrop had "used his position as a teacher" to initiate the relationship.

Mr. Jefferson called on the court to adopt a standard that would require school administrators to have "actual knowledge" of harassment. The district's position is supported in a friend-of-the-court brief filed by the National School Boards Association.

Mr. Jefferson also argued that a district could be liable only if a school official with the power to remedy the harassment had actual knowledge of it and failed to respond. He argued that it would not be enough for a student to report abuse or harassment to a classroom teacher.

Ms. Gebser's lawyers, joined by the Clinton administration as well as by friend-of-the-court briefs from such groups as the National Education Association and the National Women's Law Center, argued for a much broader standard of liability for districts.

They argued the standard could be one of "constructive notice," meaning that the district knew or should have known of the harassment. They also argued for a theory of "vicarious liability," meaning the district could be held liable merely because the teacher is an agent of the district.

For this theory, they have suggested that the high court turn to the body of case law developed under Title VII of the Civil Rights Act of 1964, a broad federal statute that bars virtually all employers from discriminating based on race and sex.

Many lower courts have already based Title IX sexual-harassment rulings on principles borrowed from Title VII cases. But there was skepticism about that approach by at least one justice.

"I think the tough question we need to answer is whether suits under Title IX should be governed by principles under Title VII," said Justice Sandra Day O'Connor. "It's quite possible 'agency' principles don't apply to Title IX."

Ms. Gebser's lawyer also argued that a district would be at greater risk of liability if school officials failed to have clear policies and procedures for reporting sexual-harassment complaints.

Ms. Gebser "did not know to whom she should complain" about the harassment, Mr. Weldon said. "If she had known the procedure, she would have complained."

Some justices appeared dubious of that.

"It's not clear to me that the best [sexual-harassment] policy in the world would have been used by this young woman," Justice Ruth Bader Ginsburg said.

Beach Battle

Also last week, the justices heard arguments in another sexual-harassment case that could have implications for school districts.

In Faragher v. City of Boca Raton (No. 97-282), the high court must decide when an employer can be held liable under Title VII for sexual harassment of an employee by a supervisor if the top officials of the organization have no knowledge of the harassment.

The case involves Beth Ann Faragher, a former lifeguard at an ocean beach in Boca Raton, Fla., who says she was subject to frequent harassing conduct from her immediate supervisors.

Although another female lifeguard had complained about similar harassment, no top city officials had knowledge of the problems.

The Clinton administration has joined with Ms. Faragher in arguing that an employer can be liable when it knew or should have known about harassment and failed to correct it.

Most legal observers agree the outcome of the case could have a broad impact on employers.

Chief Justice William H. Rehnquist said during the arguments: "We're looking for some [standard] that is fairly easy to administer."

Both cases should be decided by July.

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