A commonsense ruling on sex harassment … may change rules for lawyers harassing schools for huge fees

Insight on the News, July 27, 1998 by Ralph R. Reiland, Kimberly Schuld

By a 5-4 vote on June 22, the Supreme Court made it much tougher to hold a school district financially responsible for an employee's sexual misconduct. "The only way to find a school liable for damages," wrote Justice Sandra Day O'Connor for the court's majority, would be to prove that a district official knew of the misconduct of a teacher, administrator, coach or principal and did little or nothing about it.

The case began in 1993 when police in Lago Vista, Texas, found social-studies teacher Frank Waldrop, 52, a former Marine colonel, naked in the woods with student Alida Gebser, 15. There was no evidence that school officials knew about the ongoing relationship, which the girl kept secret. After being nabbed by the police, Waldrop quickly was fired by the school district and later stripped of his teaching certificate. He eventually pleaded no contest to a charge of attempted sexual assault.

"We're gratified by the Supreme Court's decision," said Anne Bryant, executive director of the National School Boards Association. "It is important not to divert financial resources from the public schools when the school district itself engaged in no wrongdoing."

The court's four dissenters -- its most liberal members: Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- criticized the ruling as a rather dramatic departure from settled law, a break with the "should-have-known standard." Under that legal paradigm, the school district should have known about Waldrop and Gebser.

On top of opening deeper pockets to the plaintiff's lawyers, the should-have-known standard would have had the effect of shifting the bulk of the price for Waldrop's wrongdoing to the school district's taxpayers, students and other employees.

That price, given both the highly subjective definition of harassment and today's draconian penalties, represents a major-league threat to the financial stability of school districts, or any other enterprise. We're now at the point, for instance, where schools are overflowing with students who claim to have been victims of sexual harassment. "High-school kids" says Cathy Young, vice president of the Women's Freedom Network, "are herded into seminars where they are taught that sexual attention is demeaning to women, any annoying sexual overture is a crime and skepticism toward a sexual-harassment charge is the worst kind of insensitivity."

School districts themselves, in short, are manufacturing a student body of neo-Victorian plaintiffs who are conditioned to become indignant at racy classroom metaphors. Some 85 percent of girls and 76 percent of boys claimed to have been harassed at school, according to Hostile Hallways, a 1993 report issued by the American Association of University Women. Of those students, one in four girls and one in 10 boys reported being harassed by an adult employee of the school.

For business owners, the Supreme Court's departure from the standard that allowed the emptying of pockets of organizations that were unaware of any wrongdoing is a welcome change. The next question is whether the Supreme Court will expand this tougher legal test to the private sector.

As it now stands, a clear double standard exists; Private companies, held to the should-have-known standard, continue to be regularly targeted for huge penalties because of the behavior of their employees, even when the behavior violates company policy and is hidden from the company. Worse, the alleged liability of private businesses has been expanded to include the actions of anyone who just happens to drop by.

In the case of Sunrise Sunoco in a high-crime section of Pittsburgh, the gas station's owner, Frank Salvati, received a letter from an attorney maintaining that a murder in Salvati's lot was caused by "your failure in not having proper security when the station was known to be located in a crime-ridden neighborhood with known street violence and drug dealing taking place." Added a paralegal in the attorney's office, "Someone going into a gas station doesn't expect to be shot."

Pittsburgh's Zone One police station happened to be right across the street from Sunrise Sunoco. To supplement this public-sector attempt at proper security, what should Salvati have done to avoid a charge of inadequate security? A fortress gas station with metal detectors and plastic cars? A drawbridge, perhaps, and a moat? Pumps inside, with every car occupant searched before a fill up? Instead of getting hit by lawsuits every time a crime happens to occur on or near their property, men such as Salvati should be given medals for creating jobs in urban America's highest-risk neighborhoods and for fighting off criminals who keep coming at them through the revolving jailhouse doors.

Ralph R. Reiland is Associate Professor of Economics at Robert Morris College in Pittsburgh.