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Published in Print: June 2, 1999, as Harassment Ruling Poses Challenges

Harassment Ruling Poses Challenges

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School administrators reacted with surprising acceptance to the U.S. Supreme Court's ruling last week that districts may be sued for damages if they fail to respond to student sexual harassment of other students.

In stark contrast to a harsh dissenting opinion predicting an "avalanche" of new lawsuits over student behavior, many educators said they were comforted by what they viewed as a high legal threshold for holding schools responsible for such peer harassment.

"It gives school districts some flexibility, so they won't be litigating over every student peck on the cheek of another student," said Julie Underwood, the general counsel of the National School Boards Association.

The court ruled 5-4 on May 24 that school districts may be sued under Title IX of the Education Amendments of 1972 in cases involving student-on-student sexual harassment. Title IX prohibits discrimination on the basis of sex in any education program receiving federal money.

Writing for the majority in Davis v. Monroe County Board of Education (Case No. 97-843), Justice Sandra Day O'Connor emphasized that districts could be found liable only if they were "deliberately indifferent" to information about "severe, pervasive, and objectively offensive" harassment among students.

"Damages are not available for simple acts of teasing and name-calling among schoolchildren," she wrote.

Shifting Sides

The deliberate-indifference standard comes from the court's ruling last year in Gebser v. Lago Vista Independent School District, which involved alleged sexual harassment of a student by a teacher. In that case, the court ruled that district officials must be aware of a teacher's harassing behavior and be deliberately indifferent to it for a district to be held liable for damages under Title IX. ("Riley Restates Rules Against Harassment," July 8, 1998.)

Justice O'Connor also wrote the majority ruling in the Gebser case. Then, the court's conservatives formed the narrow majority that rejected a broad standard of liability for districts in cases of employee-student sexual harassment.

In last week's case, Justice O'Connor pivoted to join the court's more liberal members in finding that Title IX authorizes lawsuits for damages for student-on-student harassment. She was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, all of whom were in the minority in the Gebser case.

Writing in dissent, Justice Anthony M. Kennedy contended that federal anti-discrimination lawsuits would intrude into the nation's public school classrooms.

The majority ruling "imposes on schools potentially crushing financial liability for student conduct that is not prohibited in clear terms by Title IX," he said.

Predicting "an avalanche of liability," Justice Kennedy wrote: "The potential costs to our schools of today's decision are difficult to estimate, but they are so great that it is most unlikely Congress intended to inflict them."

Justice Kennedy was so impassioned about his dissent that he read portions of it from the bench, a tactic reserved for those rare occasions when the dissenter finds the majority opinion especially egregious.

"The norms of the adult workplace that have defined hostile-environment sexual harassment are not easily translated to peer relationships in schools, where teenage romantic relationships and dating are a part of everyday life," he said.

He cited with apparent disdain a 1993 study issued by the American Association of University Women, titled "Hostile Hallways," which found that 81 percent of students perceived that they had been the subject of sexual harassment during their school lives.

The majority ruling "will breed a climate of fear that encourages school administrators to label even the most innocuous of childish conduct sexual harassment," Justice Kennedy predicted.

He was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Hostile Reaction

The case stems from the alleged harassment of LaShonda Davis when she was a 5th grade student in Monroe County, Ga., in the 1992-93 school year. She and her mother, Aurelia Davis, claimed in a lawsuit seeking $500,000 in damages under Title IX that a male classmate had rubbed his body against LaShonda's in a sexually suggestive manner, and that he had tried repeatedly to touch her breasts and vagina.

The family contends it made repeated complaints to LaShonda's teachers and school principal, but that the boy, identified in court papers as G.F., 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 and the school district must now return to federal district court, where the family's lawsuit was initially dismissed based on a legal ruling that Title IX did not cover peer sexual harassment.

Lawyers for the 34,000-student Monroe County district said last week that they would try to show that school officials were not deliberately indifferent to the family's complaints.

'High Standard'

What was most striking about the reaction to last week's ruling was that educators and school district lawyers, while expressing some dismay with the outcome, were not nearly as troubled as Justice Kennedy.

"Given the high standard, we don't think schools will face monetary damages very often," said Bruce Hunter, the chief lobbyist for the American Association of School Administrators.

Ms. Underwood of the NSBA said there was bound to be litigation against school districts that would ultimately define the contours of the ruling.

"But I do not think it will be the avalanche that [Justice Kennedy] is forecasting," she said.

The NSBA had urged the justices in a friend-of-the-court brief not to find that Title IX allows lawsuits over peer harassment.

Brad Allison, the superintendent of the Albuquerque, N.M., district, expressed some concern about a possible increase in sexual-harassment complaints.

"I know we are going to have cases that are 'he said, she said,' " Mr. Allison said. "Children don't have the same level of sexual maturity that adults do."

He said he plans to hold more sexual-harassment workshops for students and parents.

Federal Guidance

The Clinton administration, which took the Davis family's side in the case, was pleased with the ruling. The Department of Education's top civil rights official said it lent support to guidelines on sexual harassment issued by the department in 1997.

The guidance, which rankled many administrators when it came out, requires districts to have clear policies and procedures against sexual harassment, both of the employee-student and student-student varieties.

"The court opinion cited to our guidelines favorably," said Norma V. Cantu, the department's assistant secretary for civil rights. "That should give confidence to schools to incorporate them."

She also cast doubt on the prediction of a flood of lawsuits.

"The Supreme Court calls for a reasonable response" to peer harassment, Ms. Cantu said. "A reasonable response is exactly the right standard. It calls for using some common sense and understanding the context in which the harassment occurred."

Marcia D. Greenberger, the co-president of the National Women's Law Center, which represents the Davises, said her group was still concerned about the deliberate-indifference standard set last year in the Gebser case. But the new ruling sends schools the message that they must take all forms of sexual harassment seriously, she added.

"We do hear, unfortunately, about schools that still haven't gotten the message," she said. "But each time there is public attention on this issue, there is action."

Vol. 18, Issue 38, Pages 1,22

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