Washington
The U.S. Supreme Court last week declined its first opportunity to examine the red-hot question of whether schools are responsible for sexual harassment of students by their classmates.
Lower federal courts are increasingly divided on the issue. Several have ruled that school districts can be held accountable if they ignore or respond inadequately to students’ complaints of harassment by other students.
But on the opening day of its new term, the high court let stand a federal appeals court ruling that said districts in most instances cannot be held liable for so-called peer harassment under Title IX of the Education Amendments of 1972.
With growing attention nationwide to sexual harassment among students, the high court will almost certainly have other chances to review the question, legal experts say.
“Ultimately, the Supreme Court will speak to the issue,” said Marcia D. Greenberger, the executive director of the National Women’s Law Center. The Washington-based organization joined with other civil rights groups and the Clinton administration in urging the justices to review the case of Rowinsky v. Bryan Independent School District (Case No. 96-4).
In April, a panel of the U.S. Court of Appeals for the 5th Circuit ruled 2-1 that two 8th grade girls in Bryan, Texas, who were the victims of repeated sexual harassment on their school bus had no claim under Title IX. The federal law prohibits sex discrimination in schools that receive federal funds. (“District Not Liable for Student Harassment, Court Rules,” May 8, 1996.)
$500,000 Award
Experts say the high court’s refusal to review the Texas case will only add to the growing confusion faced by educators over sexual harassment. (“In Harassment Suits, a New Era Emerges,” Sept. 25, 1996.)
Schools in North Carolina and New York City drew widespread criticism last month for separate incidents involving the punishment of small boys--a 1st grader and a 2nd grader--for kissing a female classmate.
Yet despite the widespread belief that school officials overreacted in those cases, a California ruling earlier this month reminded educators that failure to respond forcefully to peer harassment can prove costly.
A state court jury awarded $500,000 to the family of a 6th grade girl who said she was tormented almost daily for most of the 1993-94 school year.
The lawsuit against the Antioch district claimed that a boy in Tianna Ugarte’s class repeatedly called her “slut” and “bitch” and threatened her physically.
The jury found the school district 93.4 percent liable for the girl’s treatment, the school principal 1.2 percent liable, and the boy’s family 5.4 percent responsible. Only the district and the principal were named in the lawsuit, so the district would have to pay almost 95 percent of the award.
The Antioch case claimed school officials were negligent under a state law, not the federal Title IX. In 1993, California passed a strong law targeting sexual harassment in schools, which apparently bolstered the Ugarte family’s case.
Alan Newell, the superintendent of the 14,000-student Antioch district, said last week that school administrators there took the Ugarte family’s complaints seriously.
But, he added, three separate investigations failed to turn up enough evidence to discipline the girl’s alleged tormentor.
“It was a real dilemma for us,” he said. The school district was reluctant to put on the witness stand schoolchildren whose testimony might have refuted some of the Ugarte family’s evidence out of a fear of offending parents, he said.
The district and its lawyers are considering whether to appeal, Mr. Newell said.
Federal Guidance
Across the nation, a growing number of peer-harassment claims are being brought under Title IX.
The Department of Education has long taken the view that districts can be held responsible for peer sexual harassment.
In August, the department’s office for civil rights released draft guidelines on peer harassment, drawn from various OCR case findings and court rulings.
The OCR published in the Oct. 4 Federal Register a similar document about sexual harassment of students by school employees, and asked for comment on those draft guidelines by Nov. 18.
The department says it will then publish a final document offering districts guidance on both employee-student and student-to-student sexual harassment.
The guidelines warn districts that they must treat seriously complaints of harassment by students.
The Education Department and the Department of Justice asked the Supreme Court to overturn the 5th Circuit’s ruling in the Texas case.
The majority in that ruling agreed that sexual-harassment rules that apply to the workplace should not be applied to students in school.
Children, the judges said, are not employees of the district and their behavior is not as easily controlled.
The 5th Circuit ruling, the Clinton administration said in its Supreme Court brief, “will create doubt nationwide about the correctness of OCR’s interpretation of Title IX’s prohibition of sex discrimination in education.”
Some legal experts speculate that the high court may wait for a conflict to develop among the federal circuit courts before it examines the issue.
Such a conflict surfaced briefly when a panel of the U.S. Court of Appeals for the 11th Circuit ruled in February that school districts could be held liable for peer sexual harassment if they knew about it and failed to take action. (“District May Be Held Liable for Harassment, Court Rules,” Feb. 21, 1994.)
But in August, the full 11th Circuit Court threw out the panel’s ruling in Davis v. Monroe County Board of Education and will re-examine the Georgia case later this month.
A ruling by the full 11th Circuit may provide the next opportunity for the Supreme Court to consider the issue.
