court rules on harassment, The

NEA Today, Jan 1999 by Simpson, Michael D

Students who are victims of sexual harassment will have a tough time winning damages from the school district.

In a landmark decision last June, a sharply divided Supreme Court ruled that students who are sexually harassed by teachers can rarely force the school to pay damages.

To win, students will have to prove that a school official with the authority to stop the harassment actually knew about it, but chose to ignore it.

Writing for the 5-4 majority in Gebser v. Lago Vista Independent School District, Justice Sandra Day O'Connor conceded that "a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher." But, she added, the school shouldn't be made to pay absent "actual notice and deliberate indifference."

In a strong dissent, Justice John Paul Stevens complained that the majority "ranks protection of the school district's purse above the protection of immature high school students."

"Few plaintiffs," he added, "will be able to recover damages under this exceedingly high standard."

Women's rights advocates also condemned the decision, arguing that it encourages school officials to bury their heads in the sand.

"They are essentially saying 'ignorance is bliss,"' says Paula Pearlman, an attorney with the California Women's Law Center.

"A damage verdict is what causes school districts to sit up and take notice," adds Martha Davis, legal director for the NOW Legal Defense Fund. "This [ruling] takes away the incentive for them to do something about the problem."

"Schools can't protect students from everything," counters Virginia Collier, who was superintendent of the Lago Vista (Texas) School District when it was sued.

As previously reported in the Rights Watch column (April 1998), Alida Gebser was a 14-year-old high school freshman when her social studies teacher, Frank Waldrip, allegedly pursued and enticed her into a sexual relationship.

After the police discovered the two engaged in sex, Waldrip was fired, decertified, and jailed.

Gebser then sued the Lago Vista Independent School District under Title IX, the federal law that prohibits sex discrimination, including sexual harassment, by schools that receive federal funds.

In a friend-of-the-court brief, NEA argued that schools usually should be held liable in these kinds of cases-- except where the school has in place a comprehensive and effective program to prevent and remedy sexual harassment.

Justice Ruth Bader Ginsburg adopted this position in a dissenting opinion joined by Justices David Souter and Stephen Breyer.

NEA is now working with other organizations on federal legislation to overturn Gebser.

Soon after the Court's decision, Education Secretary Richard Riley issued a strong statement noting that, even though the Gebser decision limited a student's ability to recover damages, it did not alter the department's position that this sort of harassment violates Title IX.

In a related case, the Supreme Court last October agreed to decide whether schools can be held liable under Title IX for failing to stop student-on-student sexual harassment.

The 1I th Circuit Court of Appeals ruled in Davis v. Monroe County Board of Education last year that schools have no legal duty to stop peer harassment.

Fifth grader LaShonda Davis claims that school officials in Monroe County, Georgia, did nothing to stop a five-- month "barrage of sexual harassment and abuse" at the hands of a classmate, despite her repeated complaints.

The harasser allegedly rubbed up against her, repeatedly tried to grab her breasts and genital area, and asked her for sex.

Davis and her mother eventually swore out a criminal warrant, and the perpetrator pled guilty to sexual battery. They then sued the school district under Title IX.

The 1I th Circuit said that school districts can't be held liable for peer sexual harassment, even when school officials actually know about the harassment and choose to ignore it.

The court reasoned that because the text of Title IX itself doesn't explicitly say that schools can be sued for peer harassment, Congress didn't give school districts adequate notice that their receipt of federal funds could lead to this kind of liability.

A decision by the Supreme Court in Davis is expected by June.

-Michael D. Simpson

NEA Office of General Counsel