The U.S. Supreme Court agreed last week to decide whether school districts can be sued under federal anti-discrimination law for failing to address student-on-student sexual harassment.
Peer sexual harassment is essentially the companion issue to the high court’s ruling in June that set a new standard for holding districts liable for a teacher’s sexual harassment of a student.
In that Texas case, Gebser v. Lago Vista Independent School District, the justices ruled 5-4 that districts cannot be held liable under Title IX of the Education Amendments of 1972 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.
Title IX prohibits sex discrimination, including sexual harassment, in education programs receiving federal funds.
In Davis v. Monroe County Board of Education (Case No. 97-843), the Georgia case accepted last week, the court will decide whether Title IX can be used to recover money damages from school districts when they fail to address sexual harassment of a student by other students.
“That’s a real big question,” said Julie Underwood, the general counsel of the National School Boards Association.
Lower federal courts have been sharply divided on the issue, and the Clinton administration urged the high court to resolve it.
The administration said in a friend-of-the-court brief last month that Title IX should be interpreted to allow plaintiffs to sue districts over peer sexual harassment. A district’s failure to address a sexual-harassment problem violates Title IX “whether the student’s harasser is a school employee or another student,” the administration argues in its brief.
School boards have generally maintained that they should not be held legally liable for the behavior of students. Districts say they cannot control such behavior to the same degree they can control that of their employees.
“Encouraging schools to create a positive climate for all of their students is very important,” Ms. Underwood said. “But we don’t want our members to be exposed to liability unnecessarily.”
Districts have also argued that they were not put on notice that they could be held liable for money damages for peer sexual harassment under Title IX.
“The plain language of Title IX does not expressly create a cause of action for hostile-environment sexual harassment based upon the conduct of one student toward another student,” argues the brief from the Monroe County, Ga., district. Lawyers for the district could not be reached for comment last week.
‘No Clear Notice’
The Georgia case involves allegations that LaShonda Davis, a 5th grader in the Monroe County schools in 1992-93, was repeatedly harassed by a male classmate and that school officials failed to respond to her mother’s complaints.
The family alleges that the male student, 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 boy pleaded guilty to sexual battery after one incident.
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 Davis family’s lawsuit against the county district was thrown out by a federal district court. In a 7-4 decision last year, 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 districts to prevent a nonemployee, such as a student, from sexually harassing a 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 held.
But two other federal appellate courts have ruled recently that districts can be sued under Title IX over their handling of peer-sexual-harassment complaints.
For example, the U.S. Court of Appeals for the 7th Circuit, based in Chicago, ruled in March 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, while the U.S. Court of Appeals for the 5th Circuit, in New Orleans, has sided with the 11th Circuit court that there is no cause of action for peer harassment.
‘Barrier to Learning’
The National Women’s Law Center, a Washington legal organization representing the Davis family, called on the high court to clarify peer-sexual-harassment law.
“Studies show that student-on-student harassment is the most prevalent kind of harassment that students deal with,” said Verna L. Williams, a lawyer with the center. “Sexual harassment is a tremendous barrier to learning for girls and women. To rule that Title IX doesn’t reach this type of conduct is contrary to what Congress intended.”
LaShonda Davis is now a 16-year-old high school junior in the Monroe County district, Ms. Williams said.
The high court will likely hear arguments in the case in January, with a decision expected by the end of its term in June 1999.
