The U.S. Supreme Court asked the Clinton administration last week for its views on whether school districts can be held liable for student-on-student sexual harassment.
The request in a case involving a Georgia district puts off until the high court’s next term any possibility that the court will resolve the question, which has sharply divided lower federal courts. But the action is a clear sign that the justices are interested in the issue.
The court asked the Department of Justice to comment on a case involving alleged harassment of a 5th grade girl by one of her male classmates in 1992-93 at an elementary school in the Monroe County, Ga., district.
The suit by Aurelia Davis and her daughter, LaShonda, alleges that school officials failed to respond to repeated complaints about a male classmate who fondled her and spoke in sexually explicit terms over the course of five months.
A federal appeals court ruled last year that the girl and her mother had no cause of action under Title IX of the Education Amendments of 1972 because, under most circumstances, districts cannot be held liable for so-called peer sexual harassment. Title IX prohibits all forms of sexual discrimination in schools receiving federal funds. (“Federal Courts Split Over Schools’ Responsibility for Peer Sexual Harassment,” Sept. 3, 1997.)
The girl and mother appealed to the Supreme Court in Davis v. Monroe County Board of Education (Case No. 97-843). Several women’s rights and civil rights groups urged the high court to accept the appeal to resolve the issue of whether districts can be held legally responsible for harassment among students.
“It is time for this court to step into the fray and clarify the legal standards governing Title IX peer-sexual-harassment claims,” says a brief filed by the National Women’s Law Center, a Washington-based legal organization that is representing the Davis family in the case.
OCR Guidelines
The brief notes that under guidelines put forth by the federal Department of Education last year, schools have a duty to prevent sexual harassment of students by their peers and to respond effectively to complaints. (“ED Issues Guidance on Sex Harassment of Students,” March 19, 1997.)
But in a 7-4 ruling in the Davis case, the full U.S. Court of Appeals for the 11th Circuit rejected the broad view of Title IX taken by the Education Department’s office for civil rights.
“We don’t think that the [Monroe County school] board was on notice when it accepted federal funding that it could be held liable in this situation,” the appeals court majority said last year.
From a reading of the briefs, the Supreme Court could already discern the Clinton administration’s views on peer sexual harassment based on the Education Department’s recent policy guidance.
But the Jan. 26 request for a formal brief from the Justice Department may be a way for the justices to put off a thorny sexual-harassment case until their next term. The Justice Department is likely to take several months to file its brief.
The court has already accepted four cases during its current term that deal with sexual harassment. The most significant of those for educators is a case from Texas that addresses whether districts can be held liable under Title IX when a teacher seduces a student.
In Gebser v. Lago Vista Independent School District (No. 96-1866), the justices will review lower-court rulings that found in favor of the district because district officials were not aware of the sexual relationship between a male teacher at Lago Vista (Tex.) High School and a female student.
That case is expected to be argued next month and decided before the end of the court’s current term.
In a brief filed last month, the Justice Department backs the Education Department’s sexual-harassment guidance and says the school district is potentially liable under Title IX for the teacher’s sexual abuse of the student.
The Justice Department brief faults the Lago Vista district for not having a clear procedure for reporting sexual harassment.
The district has not yet filed its response with the high court.
New Title IX Ruling
Meanwhile, in yet another Title IX case, the 11th Circuit appellate court ruled last month that the Bibb County, Ga., district cannot be held liable for a school security guard’s sexual abuse of two students because the superintendent had no knowledge of the harassment.
In a ruling highly favorable to districts, a three-judge panel held on Jan. 20 in Floyd v. Waiters that a superintendent or school board, and not lower-level supervisors, must have knowledge of sexual harassment and then fail to act for a district to be found liable under Title IX.
