Courts Split On Student Harassment

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The federal courts continue to struggle with one of the biggest issues in school law: whether school districts and administrators can be held liable for sexual harassment of students by other students.

One federal appeals court ruled in August that school officials cannot, under most circumstances, be held liable for incidents of so-called peer sexual harassment. The ruling in a Georgia case by the U.S. Court of Appeals for the 11th Circuit was the second in two years by a federal appeals court to reject district liability in such instances.

But another federal appeals court, also ruling in August, took the opposite view. In a decision handed down a week before the 11th Circuit's, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, said that school officials have a "clearly established" duty to take "reasonable steps" to prevent sexual harassment of students by other students. The decision came in a case involving a 6th grade girl in the Santa Rosa, California, district who said she was sexually harassed by a student-teacher and male classmates.

Both the Georgia and California cases were brought under Title IX of the Education Amendments of 1972. The law, which bars discrimination based on sex in schools receiving federal funds, has been the basis of a growing number of peer-harassment lawsuits.

The two recent rulings present the kind of conflict among federal circuit courts that could lead the U.S. Supreme Court to take up the issue. "At this point, the split is pretty apparent," notes Deborah Brake, a lawyer with the National Women's Law Center. The center, a Washington, D.C.-based advocacy group, represents the plaintiff in the case rejected by the 11th Circuit. That suit alleges that school officials in Monroe County, Georgia, failed to respond adequately to complaints from the family of a 5th grade girl who was fondled and spoken to in a sexually explicit way by a male classmate. The full appeals court threw out the suit, ruling 7-4 that schools cannot be held liable for peer sexual harassment under Title IX.

The majority said that "students are not agents of the school board" and thus cannot be disciplined in the same way a business can discipline its employees.

--Mark Walsh

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