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Published in Print: December 9, 1998, as Shifting Legal Ground on HarassmentHas Made It Harder for Victims To Win

Shifting Legal Ground on Harassment Has Made It Harder for Victims To Win

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Ten years ago this month, a high school senior from an Atlanta suburb brought an $11 million federal lawsuit alleging that school officials had failed to protect her from months of sexual harassment by her economics teacher. The case proved to be a turning point for students seeking redress for sexual misconduct by school employees.

In its 1992 ruling in Franklin v. Gwinnett County School District, the U.S. Supreme Court established that students could recover money damages in such cases under Title IX of the Education Amendments of 1972, which prohibits sexual discrimination by institutions receiving federal education funds.

But while that decision opened a new route for plaintiffs seeking compensation for misconduct, it failed to settle crucial questions about the circumstances under which a district could be held liable. Last June, those issues were resolved--at least for now--when the high court ruled in a Texas case brought by a student singled out for sex by a 51-year-old teacher starting when she was 14.1

The student and her legal allies had urged the court to get tough with schools. Districts should be held responsible either for all harassment by their employees, they argued, or at least in cases where officials knew or should have known about the misconduct.

The court disagreed. In its 5-4 ruling in Gebser v. Lago Vista Independent School District, the majority found that districts are liable only if a school official with authority to stop the abuse both knew about it and displayed "deliberate indifference" by failing to act.

"No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher's conduct is reprehensible and undermines the basic purposes of the educational system," Justice Sandra Day O'Connor wrote for the majority. "The issue in this case, however, is whether the independent misconduct of a teacher is attributable to the school district that employs him."

Writing for the four dissenting members of the court, Justice John Paul Stevens predicted that few plaintiffs would be able "to recover damages under this exceedingly high standard."

"As a matter of policy," he wrote, "the court ranks protection of the school district's purse above the protection of immature high school students."

Incentive for Ignorance?

Immediately following the Gebser ruling, a coalition of 17 groups, mainly women's and civil liberties organizations, called for federal legislation to counteract its effects.

The groups, led by the Washington-based National Women's Law Center, argued in a letter to key officials in Congress and the Clinton administration that the ruling would prompt school authorities "to insulate themselves from being informed about sexual harassment to avoid financial liability."

"Gebser creates an incentive for them not to know," said Verna L. Williams, the director of educational opportunities and a vice president of the center, which had filed a brief supporting the Lago Vista student's case.

Ms. Williams said the coalition hopes to focus attention on the issue once the new Congress convenes next month.

In the meantime, the U.S. Department of Education's office for civil rights has taken steps to prevent districts from viewing the Gebser decision as a license to ignore the problem of staff-on-student sexual harassment and abuse.2

The office issued policy guidance last year that holds schools to a stricter liability standard than that in the Gebser ruling. For example, the ocr said, a school should be seen as knowing about abuse "as long as an agent or responsible employee of the school received notice." Moreover, a school could be liable, the policy guidance says, if officials should have known about the misconduct.

Following the Gebser ruling, the Education Department stressed that it would consider districts out of compliance with Title IX if they failed to take reasonable steps to prevent and eliminate sexual misconduct. These include publicizing anti-harassment policies and complaint procedures and acting expeditiously when cases arise. Penalties for failing to comply can include the withholding of federal funds.

"This really comes down to a question of, 'Is a school responsible for providing an environment free from sexual discrimination including sexual harassment?' And the answer is clearly yes," said Arthur L. Coleman, a deputy assistant secretary in the office for civil rights.

Officials with the National School Boards Association say its members have gotten the message. "If the district has an attorney worth his or her salt, I don't think they're going to say, 'Hey, good, we're off the hook,' " said Michael E. Wessely, the manager of the National Education Policy Network run by the NSBA.

Impact Being Felt

As debate on the Gebser ruling continues, its repercussions are being felt around the country.

In Pennsylvania, for instance, a federal judge cited the decision in two recent rulings against a high school student who had sued a district northwest of Philadelphia last year. The girl, who said a music instructor made having sex with him a condition of her participation in the marching band, alleged that administrators failed to intervene despite knowing about the relationship.

U.S. District Judge Louis C. Bechtle concluded that the girl had failed to present sufficient evidence that either the superintendent of the 5,000-student Spring-Ford Area School District or the school principal actually knew of the relationship.

In Florida, meanwhile, the Miami-Dade County school system is betting that the Gebser ruling will help it overturn a jury verdict in June that awarded a former student $720,000 in damages for alleged sexual abuse by former band director George Crear III.

Coincidentally, the Supreme Court rendered its decision on the last day of the Miami trial. Among the district's arguments will be that the judge should have changed his instructions to the jury to conform to the ruling, said Jeffrey A. Mowers, who is representing the district in the case.

"We believe we'll prevail on appeal," he said.

Vol. 18, Issue 15, Page 18

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