When teachers harass students

NEA Today, Apr 1998 by Chmielewski, Cynthia M

We know who gets hurt. But soon the Supreme Court will rule on when a school can be held liable under Title IX.

Alida Gebser was only 13 when she first met Frank Waldrop in 1991. She was a student in his wife's eighth grade class and a participant in the gifted and talented program at the Lago Vista Independent School District in Texas.

Alida soon joined a high school '`great books" discussion group led by Waldrop. The following year, she wound up in his freshman social studies class.

During this time, according to the lawsuit that she has since filed. Waldrop began showing Alida special attention. He flirted with her. He flattered her. He went out of his way to spend time alone with her.

Just before spring break of Alida's freshman year, Waldrop visited her home, ostensibly to deliver a book she needed for a school project. There, Waldrop kissed the 14-year-old and fondled her breasts and genitals.

Later that spring, Waldrop repeatedly had sexual intercourse with the student.

That summer, Waldrop taught an advanced placement class, and Alida was his only student. He would pick her up at her house, and they regularly engaged in sexual intercourse during class time.

In the fall, Alida wound up in Waldrop's class again. and the relationship continued-until a police officer caught them having intercourse. At the time, Alida was 15 years old.

Did the school know about Waldrop's relationship with Alida? No. But other female students had previously complained to the principal about Waldrop's inappropriate classroom comments. The principal met with Waldrop to discuss the complaints but didn't investigate further. Nor did she alert the school's Title IX coordinator.

In addition, the school allegedly failed to disseminate to students an anti-harassment policy and complaint procedure as required by Title IX. As a result, Alida testified, she "didn't know what to do" when Waldrop initiated sexual advances.

"If I had known at the beginning what I was supposed to do when a teacher starts making sexual advances toward me, I probably would have reported it," she added.

So what did Alida and her mother do? They hired a lawyer and sued the school district for money damages.

The complaint alleges that the school district is liable for Waldrop's sexual harassment of Alida under Title IX. the federal law prohibiting sex discrimination by educational institutions receiving federal money.

The Fifth Circuit Court of Appeals ruled last year that the school district couldn't be held liable because it didn't know Waldrop was sexually harassing Alida.

According to the court, a school district cannot be held liable for a teacher's sexual harassment of a student unless "a school district employee with supervisory power over the offending employee actually knew of the abuse, had power to end the abuse, and failed to do so."

Under this legal standard. a student's complaint to another teacher is not sufficient to impose liability on the school. A harassed student must tell a "supervisory employee," such as a principal or superintendent.

The burden that this standard places on student victims is demonstrated by another Texas case, Leija v. Canutillo Independent School District.

In this case, a second grader was sexually molested by her health teacher. He placed her on his lap and fondled her during weekly in-class movies. The girl and her mother complained to the homeroom teacher. But the court ruled that this wasn't enough to impose liability on the school.

How can we protect students from sexual harassment-and schools from being sued?

With education, according to NEA's brief in Alida Gebser's case, Gebser v. Lago Vista Independent School District.

In December, the Supreme Court agreed to review the lower court's decision in Gebser. The Court's ruling will ultimately determine when a school can be held liable for a teacher's sexual harassment of a student under Title IX.

The Clinton administration and NEA both filed friend-of-the-court briefs in support of Alida.

In its brief, NEA argues that, at a minimum, a school should be held liable if it knew or should have known of the harassment and failed to take appropriate steps to stop it.

In addition, NEA argues that a school should be held liable if a teacher uses his or her position of authority to sexually harass a student-with one exception.

NEA maintains that schools that adopt effective, pro-active anti-harassment policies, complaint procedures, and prevention programs should not be held liable.

In the Gebser case, NEA argues that because Waldrop used his authority and position as a teacher to seduce a student, the school should be held liable-unless it can show that it had in place a comprehensive sexual harassment policy, procedure, and prevention program. and that students were informed about them.

The Court will hear oral arguments in Gebser on March 25. A final decision is expected this summer.

Cynthia M. Chmielewski NEA Office of General Counsel