When Permission Goes to Court

0 Comments | Insight on the News, July 5, 1999 | by Woody West

It might be a timely, if dismal, idea to replace the motto "E Pluribus Unum" with a more pertinent national legend: "Reductio Ad Absurdum" We're a society that is exhibiting signs of cognitive impairment -- or, in lay terms, going seriously goofy. A cultural archaeologist need dig no deeper than the recent Supreme Court decision on "gender discrimination" in the classroom.

The 5-4 decision was characterized succinctly in a Washington Times editorial where it was suggested that Associate Justice Sandra Day O'Connor, who wrote the majority opinion, henceforth will be "Principal O'Connor" potentially for every school in the land.

Principal O'Connor's ruling (in which she predictably was joined by justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) held that schools receiving any federal money are liable for damages for not reining in sexual harassers. Call it peer harassment.

The ruling involved two 10-year-olds in Geogia. The plaintiff, a fifth-grade girl, during more than five months repeatedly and lewdly was taunted and fondled. Though both her mother and the girl complained to school authorities about the nastiness, nothing was done. The girl's grades and her disposition seriously deteriorated. So (what else in America) the problem was dragged into the legal labyrinth.

The court majority hesitated a bit climbing this tricky mountain by averring that such suits can be filed only when school officials are aware of and are "deliberately indifferent" to behavior that is "so severe, pervasive and objectively offensive" that it denies the harassed student the benefit of her (and presumably his) education. This has been described as raising the bar for litigation a few notches. But does anyone who has gotten beyond fifth grade doubt for a nanosecond that wily lawyers can't fit an ox into that stall?

Like iron filings pulled to a magnet, a variety of social odds and ends have been attracted to the force field of this singular decision. Foremost is the "children's rights" industry that during the last several decades has lobbied and litigated the notion that nearly every technique of discipline is illegitimate: Anything in school that appeals to the apprentice citizens must not be interfered with -- oh, except smoking, of course. This has succeeded in eroding to the point of extinction the fonts of institutional authority intended to constrain the wild energies of the young.

Radical permissiveness has been conceded to ever younger tadpoles, especially in this (as the Times editorial pungently put it) "the most sexually saturated culture since Sodom" Two-parent families of the not-so-ancient past have been widely transformed into two-wage-earner or single-parent families. At the same time, school officials are in terror of being sued if they either do, or don't, enforce standards of demeanor -- contemporary or traditional. A result has been a terrifically potent peer pressure among youngsters and an eagerness to challenge whatever inhibitions or prohibitions remain in the (allegedly) adult world.

Even a generation of parents that came to maturity chanting that if it feels good, do it -- even these parents -- often are struck dumb by the anarchic landscape over which their offspring gambol these days. So if Mom and Dad can't handle the kiddies and schools don't dare, why, what else? -- leave it to the Supreme Court. Now that, Baby, is gravitas.

The unsurprising product of this who-dare-say-them-nay landscape is a distressing number of young savages and, evidently, a lot of young savagesses. What used to be called the mediating institutions -- school, home, church -- have existed for one essential purpose and that is to acculturate the children, to civilize them. Failing that, as seems often the case, public education is left with a touchy bunch of brats who convert schools into custodial holding pens and guards who flinch at any confrontation. The chief problem of the kiddies may be too much self-esteem, not too little.

A rearguard action continues against this absurdity. In the case of the Supreme Court's ruling, there is modest encouragement in the dissent. Justice Anthony Kennedy (joined by Chief Justice William Rehnquist and associate justices Anthony Scalia and Clarence Thomas) eloquently begged to differ with Principal O'Connor and her four vice principals.

The ruling, Kennedy tartly contended, "mandates to teachers instructing and supervising their students the dubious assistance of federal-court plaintiffs and their lawyers and makes the federal courts the final arbiters of almost every disagreement between students."

Translated to the daily world, he foresaw that "Johnny will find that the routine problems of adolescence are to be resolved by invoking a federal right to demand assignment to a desk two rows away." And he warned of the "avalanche of liability now set in motion."

Just so -- fantastic as it all seems.