The Letter of the Law

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Title IX of the Educational Amendments of 1972 prohibits discrimination on the basis of gender in the nation's elementary and secondary schools, colleges and universities, and any other agencies that receive federal funds.

Nine years after the law's enactment, the U.S. Education Department's office for civil rights issued a memorandum stating that Title IX prohibited sexual harassment "by an employee or agent of a school." The memo required schools to establish a formal procedure for reporting and promptly resolving such complaints.

Similarly, the courts and the O.C.R. have tended to rule on behalf of students in Title IX cases when they find that districts "have constructive notice of severe and repeated acts of sexual harassment by fellow students," wrote Gwendolyn H. Gregory, the deputy general counsel for the National School Boards Association, in the group's March 1993 primer on sexual harassment.

By nearly all accounts, sexual harassment of students by students has not been a large part of the discourse in schools. Sexual harassment in schools has typically meant some form of employer discrimination, such as unfair wages and treatment or the procurement of sexual favors for promotions.

Harassment of students usually focused on relationships between university professors and their students. Indeed, even today, many schools do not have policies and procedures for handling general complaints of sexual harassment, let alone student-on-student sexual harassment.

But in 1992, school districts took notice. In Franklin v. Gwinnett, the U.S. Supreme Court ruled that elementary and secondary school students may be entitled to monetary damages for enduring ongoing sexual harassment from a teacher or other school district employee. Even though the case did not deal with student-on-student harassment, the ruling spurred broader discussion of sexual harassment of students in the nation's schools. What's more, the case made clear to plaintiffs that there was an avenue open to them other than the office for civil rights.

Soon after the High Court ruling, two reports dealing with student-on-student sexual harassment were issued. The American Association of University Women Educational Foundation and Seventeen Magazine found that girls in high school--and even elementary school--were subjected to a broad array of sexual harassment, particularly at the hands of their male peers.

Then, in 1993, a U.S. District Judge ruled in Doe v. Petaluma that students who were sexually harassed by their peers may recover monetary damages from schools. It was the first court ruling to affirm that "student-on-student sexual harassment is actionable under Title IX," ac~cord~ing to Judge Eugene F. Lynch of San Francisco.

Although the judge dismissed the suit, he gave plaintiffs 30 days to amend it in an effort to meet the criteria he established for damages: to "prove intentional discrimination on the basis of sex on the part of an employee of the educational institution, not just that an employee or employees of the institution knew or should have known of the hostile environment and failed to take appropriate action to end it." The litigation is pending.

Subsequent decisions have not necessarily followed suit. Federal courts in Georgia, Texas, and Utah have ruled that schools do not have an obligation to remediate peer-on-peer sexual harassment. In fact, the courts seem to be willing to make it more difficult for students to obtain damages than employees. Nevertheless, when school districts ignore accusations of student-on-student sexual harassment, they do so at their own peril.

--Mark Pitsch

Vol. 14, Issue 39

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