Sexual Harassment by a 1st Grader?

By Mark Walsh — April 04, 2008 2 min read
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The Washington Post has created quite a discussion with this story about a 1st grader who was allegedly disciplined by school officials for sexual harassment of a fellow student on the playground. The boy smacked a classmate on her bottom, and school officials filed a report on him under the category, “Sexual Touching Against Student, Offensive.”

ABC’s “Good Morning America” picked up on the story today.

While the Post‘s story had a discussion of relevant state laws in its circulation area, there was little more than passing reference to federal case law and regulations on peer sexual harassment under Title IX of the Education Amendments of 1972.

The most relevant U.S. Supreme Court case is Davis v. Monroe County Board of Education (1999), in which the court held that school districts may be liable for so-called peer, or student-on-student, sexual harassment under Title IX, but only where they were “deliberately indifferent” to information about “severe, pervasive, and objectively offensive” harassment among students. Education Week reported on the decision here.

In the majority opinion in Davis, then-Justice Sandra Day O’Connor noted that “students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender.”

In dissent in that case, Justice Anthony M. Kennedy cited the then-recent story of a 6-year-old who had been suspended for kissing a classmate on the cheek. Kennedy wrote: “The prospect of unlimited Title IX liability will, in all likelihood, breed a climate of fear that encourages school administrators to label even the most innocuous of childish conduct sexual harassment.”

In its official Title IX guidance on sexual harassment in schools, published in 2001 and reiterated in 2006, the U.S. Department of Education makes this relevant point: “It is also important that schools not overreact to behavior that does not rise to the level of sexual harassment. As the Department stated in the 1997 guidance, a kiss on the cheek by a first grader does not constitute sexual harassment. School personnel should consider the age and maturity of students in responding to allegations of sexual harassment.”

A version of this news article first appeared in The School Law Blog.