Unwelcome Advances

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Christine Franklin was a sophomore at North Gwinnett High School in suburban Atlanta in 1986, when, she claims, her economics teacher began making sexually suggestive remarks to her.

The instructor allegedly would bring Franklin into his office for discussions that began innocently but turned to questions about whether she would consider "doing it'' with an older man. The pattern of harassment, she says in court documents, continued for the next 15 months, with the teacher eventually pressuring her to have sex with him three times during school hours--twice in the field house and once in the school's stadium press box.

According to Franklin, school officials moved slowly to address rumors that the teacher was harassing her and other female students. Even after they began an investigation, Franklin says, the school's band director urged her to drop her complaint to avoid embarrassment.

In December, the U.S. Supreme Court heard arguments on whether Franklin, who graduated from North Gwinnett in 1989, should be allowed to sue school officials for money damages for tolerating her alleged sexual harassment. A federal district judge in 1989 dismissed her lawsuit against the school district and the band director, and the U.S. Court of Appeals for the 11th Circuit last year upheld the judge's ruling.

But earlier this year, the U.S. Supreme Court agreed to consider a facet of the dispute, Franklin vs. Gwinnett County School District, that could revive Franklin's suit: whether Title IX of the Education Amendments of 1972, which bars sexual discrimination in federally funded education programs, permits victims of intentional discrimination to recover compensatory damages.

The resolution of that question alone has major legal and fiscal implications for school districts because a victory by Franklin could also pave the way for damage awards to students who are victims of discrimination on the basis of race or handicap.

But beyond posing the narrow legal issue before the Court, the case has cast the spotlight on the broader issue of sexual harassment in the nation's schools. In a twist of fate, the High Court will consider the sexual-harassment case just months after the nation received a crash course on the topic via the controversial hearings on Anita Hill's charges against Clarence Thomas, now an associate justice.

The combination of the Thomas hearings, the Franklin case, and the passage of a new federal civil rights law that expands the rights of victims of discrimination has underscored for school districts the seriousness of sexualharassment complaints.

"Cases involving sexual-harassment claims will continue to increase in number in the years ahead,'' predicts Hendrik de Bruin, a University of New Mexico researcher who recently presented a paper on sexual harassment in the classroom at a meeting of the National Organization on Legal Problems of Education. "School districts should be holding workshops and seminars to acquaint students and employees of their rights.''

As large employers, school districts already are frequently the target of sexual-harassment complaints stemming from supervisor-employee relationships and conduct between co-workers. The Oceanside, Calif., school board, for example, recently approved a $200,000 settlement with a junior high school teacher and coach who alleged that her school's principal grabbed her buttocks during a student-faculty basketball game. When the teacher rebuffed that overture and others, the principal allegedly removed her from her coaching duties. He eventually resigned.

Less frequent, but equally serious, are cases like Franklin's that involve the harassment of students by school employees. Such cases include instances in which school employees discriminate against females based on traditional sex roles. Among recent examples, the U.S. Education Department's office for civil rights found that a male shop teacher at Victor Valley (Calif.) High School had improperly ridiculed a female student and would not let her work on car engines with boys in the class. The teacher resigned in the wake of the investigation.

School officials are also becoming more concerned about another problem: the harassment of students by other students. Last year, officials at Amherst (Mass.) Regional High School drew national attention with a new policy that defined sexual harassment as "unwanted sexual attention.'' The policy cited examples such as "staring or leering with sexual overtones'' and "spreading sexual gossip.'' John Heffley, the principal of the school, says media reports mockingly focused on the subjective nature of the examples offered.

"I think students and staff here felt that the school was ridiculed for trying to bring attention to a serious problem,'' Heffley says. School officials have eliminated the examples from the policy, which remains in force. "In all candor,'' the principal says, "young people don't have a clue as to what really constitutes sexual harassment.''

A school district in Minnesota, meanwhile, recently learned an expensive lesson about its failure to act to halt the alleged sexual harassment of a student by a peer. A girl at Central High School in Duluth filed a complaint with state human rights officials after school officials refused to paint over the wall of a boys' bathroom that included crude comments about her written by unknown students.

This past fall, the human rights department approved a settlement of $15,000 to be paid by the district to the girl. The settlement also required the district to adopt a sexual-harassment policy and introduce a harassmentawareness program for students, employees, and parents. "Under our state law, school districts have a responsibility to make sure that a hostile environment does not exist in the schools,'' says Tracy Elftmann, the deputy commissioner of the human rights department.

In the case before the Supreme Court, the teacher who allegedly harassed Franklin resigned after the Gwinnett county school district completed its investigation. No criminal charges were brought against him.

Franklin sued the teacher and the school district in separate lawsuits in the Georgia courts, but both suits were dismissed. In the summer of 1988, Franklin filed a complaint with the U.S. Education Department's office for civil rights, alleging a violation of Title IX. After a six-month investigation, the OCR concluded that the teacher and school officials had violated Title IX. But the federal office accepted the district's assurances that it was taking action to correct the violations.

Franklin filed her federal suit in December 1988, seeking $11million in compensatory damages. The case rests on the legal theory that remedies under Title IX can be expanded by the courts to include the awarding of money damages in cases of intentional discrimination. The two lower courts declined to do so, saying that Congress did not expressly provide for compensatory damages when it adopted Title IX.

After losing in the two lower courts, Franklin received unexpected help from the Bush administration. Although the administration has sided against Franklin on the scope of remedies available under Title IX, it urged the Supreme Court to hear the case because federal appellate courts are split on the issue.

The Court's eventual ruling is expected to have a significant long-term impact on how sexual-harassment charges are handled by schools. Ellen Vargyas, a senior lawyer with the National Women's Law Center, argues that the availability of compensatory damages under Title IX is necessary for the fight against sexual harassment in the schools. Vargyas co-wrote a friend-of-the-court brief on Franklin's behalf that was joined by 20 organizations, including the National Education Association.

If money damages are allowed, Vargyas says, "Schools will have to pay attention to sexual harassment because it will cost them money if they don't.'' Besides, she adds, "if you can't get a remedy, the protection is not worth the paper it is written on.''

Mark Walsh

Vol. 03, Issue 05, Page 1-24

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