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Published in Print: January 20, 1999, as Court Weighs Harassment By Students

Court Weighs Harassment By Students

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The U.S. Supreme Court should not open the federal courthouse door to lawsuits seeking to hold school districts responsible for student-on-student sexual harassment, the lawyer for a Georgia district told the justices last week.

"Forty-five million children struggle to sort out the relationship between boys and girls," said W. Warren Plowden Jr., representing the Monroe County district. "We urge you not to federalize classroom conduct."

The district's arguments got a sympathetic reception from several justices, who worried aloud that ordinary children's behavior could result in a barrage of lawsuits under Title IX of the Education Amendments of 1972. That federal law prohibits discrimination based on sex in public schools receiving federal aid.

"I'm sure schoolchildren nationwide tease each other. I'm sure little boys tease little girls," Justice Sandra Day O'Connor said during the Jan. 12 oral arguments in Davis v. Monroe County Board of Education (Case No. 97-843). "Is every one of these incidents going to lead to a lawsuit?"

Not Ordinary Teasing

Justice Anthony M. Kennedy warned that under the legal arguments advanced on behalf of the plaintiff, a Georgia mother whose daughter was constantly harassed by a 5th grade classmate, "there will be a federal code of conduct in every classroom in the country."

Lawyers for Aurelia Davis, who sued the Monroe County district for $500,000 in damages and other relief on behalf of her daughter, were hit with a barrage of questions from the justices about authorizing Title IX lawsuits based on peer sexual harassment.

"There is no requirement [under Title IX] that a school guarantee that [peer harassment] not happen," said Barbara D. Underwood, a Clinton administration lawyer who was arguing as a "friend of the court" on behalf of the Davises.

School officials need only to take appropriate steps to respond to peer harassment once they know about it, she said.

And unless it was particularly severe and pervasive, "ordinary teasing would not rise to the level" of subjecting a district to Title IX liability, said Ms. Underwood, a deputy U.S. solicitor general.

Guilty Plea

The Georgia case involves allegations that LaShonda Davis, a 5th grader in the Monroe County district in 1992-93, was repeatedly harassed over a five-month period by a male classmate and that school officials failed to respond to her mother's complaints.

The family alleges that the boy, identified in court papers as G.F., rubbed his body against LaShonda's in a sexually suggestive manner, and that he repeatedly tried to touch her breasts and vagina.

The family contends that it made repeated complaints to LaShonda's teachers and school principal, but that the boy was never disciplined. Their suit alleges that the principal asked LaShonda at one point "why she was the only one complaining."

The Davises eventually went to the police, and G.F. pleaded guilty to sexual battery stemming from one incident of harassment.

The Davis family's lawsuit against the 34,000-student Monroe County district was thrown out by a federal district court, which ruled that the family had no cause of action under Title IX because neither the district nor its employees were involved in the harassment.

Because the lawsuit was thrown out at an early stage, the district has never formally presented a reply to the allegations that it failed to respond to the complaints. Outside the Supreme Court building last week, Mr. Plowden said the district took issue with the allegations, but he would not go into detail.

Lower Courts Split

In a 7-4 decision in 1997, the full U.S. Court of Appeals for the 11th Circuit upheld the dismissal of the suit. It ruled that Title IX imposes no duty on school districts to prevent a nonemployee, such as a student, from sexually harassing another student.

"Congress gave no clear notice to schools and teachers that they, rather than society as a whole, would accept responsibility for remedying student-student sexual harassment when they chose to accept federal financial assistance under Title IX," the majority on the Atlanta-based appeals court said.

The U.S. Court of Appeals for the 5th Circuit, based in New Orleans, has sided with the 11th Circuit court that there is no cause of action for peer harassment.

But two other federal appeals courts ruled recently that districts can be sued under Title IX over their handling of peer-sexual-harassment complaints.

The U.S. Court of Appeals for the 7th Circuit, based in Chicago, ruled in March of last year that imposing liability on schools for peer sexual harassment "best serves the anti-discrimination goal that Congress indisputably had in mind when it enacted Title IX."

The U.S. Court of Appeals for the 9th Circuit, based in San Francisco, has also ruled that Title IX covers peer sexual harassment.

The Clinton administration, joined by women's rights groups, urged the high court to accept the Georgia case to resolve the conflict among the circuit courts.

Schools and the Workplace

One central discussion in the Georgia case involves whether the Supreme Court intends to apply the legal principles developed to address sexual harassment in the workplace to the same sorts of behavior in schools.

Just last year, the court issued several opinions that made it easier for employees to sue employers for sexual harassment under Title VII of the Civil Rights Act of 1964.

But in Gebser v. Lago Vista Independent School District, a case involving the issue of teacher-student harassment, the court said a district cannot be held liable under Title IX unless an official in a position to take corrective action knew of a teacher's harassment of a student and was "deliberately indifferent" to it.

Many of the same women's groups and other organizations that have lined up on the side of the Davis family in the Georgia case criticized the high court for setting different standards for handling sexual harassment in the workplace and in schools.

Justice O'Connor noted during the arguments last week that "under Title VII standards, much of that behavior [such as sexual teasing] would constitute sexual harassment. So how do we apply it in the school context?"

Justice Stephen G. Breyer suggested that peer sexual harassment might best be addressed by "educators and psychologists" instead of "lawyers and judges."

"At a school, there are many, many incidents where the proper response would be discussion ... all kinds of things that wouldn't be appropriate in the workplace," he said. "What's worrying is the gearing up of a great legal mechanism."

Ms. Underwood replied that if a school district responded to allegations of peer sexual harassment with discussions and counseling, it would not face liability under Title IX because it would not be showing deliberate indifference.

Drawing the Line

Verna L. Williams of the National Women's Law Center, who also argued on behalf of the Davises, told the justices that a student's simple teasing of another student would not qualify as sexual harassment unless it was "severe, persistent, or pervasive."

That phrase comes from the Supreme Court's own precedents on so-called hostile-environment sexual harassment in the workplace.

The federal Department of Education adopted the same language for its March 1997 legal guidance on sexual harassment in schools. The department argues in its guidelines that districts have a responsibility under Title IX to respond to peer sexual harassment.

Two justices gave at least a hint of support for the Davises. Justice Ruth Bader Ginsburg suggested at one point that the Education Department's interpretation of Title IX should be given some deference.

And Justice John Paul Stevens asked Mr. Plowden, the school district's lawyer, to think about the issue outside the context of sexual harassment. Suppose a school had a ball field that it reserved for one hour each after school for a boys' team and a girls' team. But the boys consistently refused to give up the field to the girls, and school administrators knew about it and refused to act. Could they be held liable under Title IX for discrimination based on sex, Justice Stevens wondered.

Mr. Plowden said that under that scenario, there was no Title IX violation because school employees had taken no discriminatory action.

"I would still draw the line at no private right [to sue under Title IX] if the predicate action is student conduct," he said.

The case should be decided by late June.

Vol. 18, Issue 19, Pages 1,21

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