Jesus Heard the word of God, but Mohammed had convulsions: How religion clause principles should be applied to religion in the public school social studies curriculum

Journal of Law and Education, Jul 2003 by Kaiser, Elizabeth D

Courts also will step into the shoes of school decision makers decisions in sexual harassment cases, even when the harassment occurs by someone other than the teacher. In Davis v. Monroe County Board of Education, the Supreme Court held that a school district could be liable for sexual discrimination when it was aware that one of the school's male students was sexually harassing another, but did not try to stop the harassment from occurring.114 The school's liability stemmed from sexual anti-discrimination laws under Title IX, which provides that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any education program or activity receiving federal financial assistance . . . .115 In rendering its opinion, the Court explained that normally it would not allow courts to interfere with how schools handle peer-on-peer sexual harassment.116 However, the Court said it had to intervene in Davis since the gender-based harassment was severe enough to hinder the alleged victim's ability to receive an education and the school had deliberately neglected to stop the harassment.117 In cases where a school is clearly indifferent to its duties, the Court said the school is liable for Title IX harassment violations because the school was clearly unreasonable by doing nothing.118 The Court explained that using a 'clearly unreasonable' standard in gauging whether a school had fulfilled its Title IX duties was a way to balance federal obligations to uphold Title IX with a school's need to avoid excessive judicial interference.119 Such a standard, contrary to what critics would say, would not clog up the courts with excessive cases, nor would it prevent schools from exercising local control.120 In regards to court overflow, the Court said:

The recipient [of Title IX] funds must merely respond to known peer harassment in a manner that is not clearly unreasonable. This is not a mere 'reasonableness' standard, as the dissent assumes . . . . In an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not 'clearly unreasonable' as a matter of law.121

As for subjecting local school districts to federal court control, the Court responded:

School administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed 'deliberately indifferent' to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.122

Courts will also police classroom instruction if that instruction could be misconstrued as a school endorsement of a particular kind of student speech. In Hazelwood School District v. Kuhlmeier, high school journalism students wrote articles about teen pregnancy, which included interviews with several "anonymous" pregnant students at the school.123 The students wanted to have the articles published in the student newspa-per.124 However, the principal refused to publish the articles because he thought that students would be able to identify the anonymous students and that the description of sexual activity would not be suitable reading material for the younger students.125 The journalism students challenged the school's decision on free speech grounds, losing at the district level but winning at the appellate level.126 The Supreme Court reversed, explaining that the school newspaper in Hazelwood was not a public forum, but merely a curricular outlet for the journalism class.127 Journalism students wrote the paper during class hours, received credit and grades for their work and were subject to the editorial review of their journalism teacher.128 Thus, the newspaper did not qualify as a public forum and the school could regulate it in a reasonable manner.129 The Court found that the principal's decision in this case was reasonable. Specifically, the Court said that schools could exercise greater supervisory control over school-promoted speech like a newspaper to assure "that the views of the individual speaker are not erroneously attributed to the school."130