Off The Hook

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In a ruling that goes against the grain of several recent decisions, a federal appeals court has said that a school district cannot be held liable for failing to stem student-to-student sexual harassment.

The case involves two sisters who were 8th graders at a Bryan, Texas, middle school in 1992-93. The girls claimed they were tormented throughout the year by a boy on their school bus who grabbed their breasts and genitals and used foul and lewd language. The girls' parents complained frequently to school officials, who briefly suspended the boy from the bus but allegedly took no other action.

The girls' mother sued the district under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools and has been held by the courts to cover sexual harassment in education. A federal district court dismissed the suit, and the U.S. Court of Appeals for the 5th Circuit this spring concurred. The 2-1 ruling says the girls had no claim under Title IX because the harassment was not by school employees.

The ruling in Rowinsky vs. Bryan Independent School District differs from a February ruling by the U.S. Court of Appeals for the 11th Circuit, which held in a similar case that a Georgia district could be liable for failing to eliminate a sexually hostile educational environment. The conflict among the circuit courts, legal experts say, makes the difficult issue of peer harassment in public schools ripe for review by the U.S. Supreme Court.

The 5th Circuit court rejected the idea that a district could be responsible for peer harassment in the same way it could be liable if a teacher sexually harassed a student. It also rejected the application to a school setting of the principle that holds employers liable for a sexually hostile workplace. "Unwanted sexual advances of fellow students do not carry the same coercive effect or abuse of power as those made by a teacher, employer, or co-worker,'' wrote U.S. Circuit Judge Jerry Smith.

The majority also was unswayed by recent rulings by the U.S. Department of Education's office for civil rights that schools have a duty to stop peer sexual harassment. Judge Smith said the "letters of finding'' in specific cases do not represent formal policy, which still limits Title IX enforcement to employees or agents of a school district that receives federal funds.

According to the Rowinskys' lawyer, the family has decided to appeal directly to the U.S. Supreme Court.

--Mark Walsh

Vol. 07, Issue 09, Page 1-24

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