Peer sexual harassment outlawed

NEA Today, Sep 1999 by Simpson, Michael D

Supreme Court to schools: Take steps to stop student-on-student sexual harassment or pay the consequences.

In a landmark decision handed down last May, the U.S. Supreme Court ruled 5 to 4 that school districts, colleges, and universities can be sued for damages by students who are the victims of peer sexual harassment.

In the majority opinion, written by Justice Sandra Day O'Connor, the Court said schools that receive federal funds can be held liable if they are "deliberately indifferent" to known instances of student-on-student sexual harassment.

Responding to concerns voiced by the dissenting justices that the Court's ruling will open the floodgates for frivolous litigation, Justice O'Connor cautioned that not every incident of offensive language or conduct will support a lawsuit for damages.

The harassment, she noted, has to be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to" an education.

Writing for the four dissenters, Justice Anthony Kennedy complained that the majority's ruling "imposes on schools potentially crushing financial liability for student conduct," and he predicted that the ruling will lead to an "avalanche" of lawsuits against schools.

"After today," Kennedy warned, "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."

The case, known as Davis v. Monroe County Board of Education, began in 1993 when fifth grader LaShonda Davis was subjected to five months of verbal and physical sexual harassment and abuse by a classmate at Hubbard Elementary in Monroe County, Georgia. The harasser, identified only as G.F., allegedly rubbed up against her, repeatedly tried to grab her breasts and genital area, and asked her for sex, saying, "I want to feel your boobs," and "I want to get in bed with you."

Davis and her mother told various teachers and administrators about the harassment, but nothing was ever done, according to their lawsuit.

The harassment finally ended when Davis and her mother swore out a criminal warrant against G.F., who pled guilty to sexual battery.

The family then sued the school district, claiming that its failure to take any action to stop the pervasive and damaging harassment violated Title IX, the federal law that prohibits schools that receive federal funding from discriminating on the basis of sex.

The U.S. Court of Appeals for the Eleventh Circuit dismissed the lawsuit, reasoning that, because Title IX 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.

In May, the Supreme Court reversed and ruled that schools can be liable, but only if school officials have "actual knowledge" of the harassment and fail to take reasonable steps to end it. Both the Clinton Administration and the NEA filed friend-of-the-court briefs in support of the Davis family.

"We believe," NEA President Bob Chase told reporters, "that school districts should take prompt and effective action to stop known instances of peer sexual harassment.

Added Chase: "The lesson here is that school districts should work to prevent sexual harassment from occurring in the first place through education and training programs for students and staff."

Few observers feel that the Supreme Court's ruling will threaten school district budgets. as the Courts dissenting justices suggested. Julie Underwood, general counsel of the National School Boards Association, doesn't foresee "the avalanche that [Justice Kennedy] is forecasting." The ruling, she said, "gives school districts some flexibility, so they won't be litigating over every student peck on the cheek."

But Verna Williams, the lawyer who argued the case on behalf of LaShonda Davis, sounds this cautionary note: "Schools are now on notice: Listen to your students and assist them before their learning environment becomes intolerable. Set up guidelines, make them well-known, and respond to calls for help. It's the law."

The Davis decision can be found at www.findlaw.com/US/000/97-843.html.

-Michael D. Simpson

NEA Office of General Counsel