Federal law prohibits student-on-student sexual harassment

VOLUME 30, NUMBER 11 December 1999

JUDICIAL NOTEBOOK

The Supreme Court rules that Title IX reaches hostile acts between students.

By Richard L. Wiener, MLS, PhD
St. Louis University

Audrey T. Feldman Wiener, PhD
St. Louis Family Court

Under Title IX of the Education Amendments of 1972, no education program or activity receiving federal financial assistance may exclude, deny benefits to or discriminate against any person on the basis of sex (20 U.S.C. Sec. 1681.a). The purpose of the statute is to prevent "discriminatory practices" in education and "to provide...effective protection against those practices."

In Cannon v. University of Chicago, 441 U.S. 677, at 704 (1979) and Franklin v. Gwinnett County Public Schools, 112 S.Ct. 1028 (1992), the U.S. Supreme Court held that private citizens could collect damage awards when teachers sexually harassed their students. But more recently in Gebser v. Lago Vista Independent School Dist., 118 S.Ct. 1989 (1998), the Court limited the liability of school districts to include only those cases in which "an official who...has authority to address the alleged discrimination and to institute corrective measures on the [school's] behalf has actual knowledge of discrimination in the [school's] programs and fails adequately to respond" (118 S.Ct. 1999). The plaintiff must demonstrate that the official's response shows "deliberate indifference" to "actual knowledge" of discrimination. Instances in which a school administrator had enough information to have inferred that a teacher harassed a student (constructive knowledge) are not sufficient to trigger liability.

Background of the cases

In Gebser, teacher Waldrup had sexual relations with student Gebser, who failed to report the incidents to any school administrator. The relationship only became known when a security guard caught Waldrup in the act. The Court held that the district was not liable.

In the 1999 term, the Supreme Court extended the liability of Title IX to include "student-on-student" sexual harassment, Davis v. Monroe County Bd. of Educ., (119 S.Ct. 1661). In the case, LaShonda Davis, a fifth-grade student, reported to her mother and teacher that a male classmate made vulgar comments and tried to touch her genital area and her breasts on repeated occasions. The school principal was made aware of the behavior. Despite repeated complaints, the boy was not disciplined and his offensive comments and actions continued, escalating in severity. Finally, he was charged for the misconduct and pled guilty to sexual battery. The 11th Circuit Court of Appeals dismissed a claim for compensatory and punitive damages against the school, holding that Title IX does not provide schools adequate notice that they are liable for sexual harassment of one student by another [Davis v. Monroe County. Bd. of Educ., 120 F3.d 1390 (11th Cir, 1997)].

The U.S. Supreme Court agreed with the Eleventh Circuit's conclusion that Title IX does not provide schools notice of liability concerning the actions of other. However, a school's "deliberate indifference" to "known acts of harassment" is itself misconduct prohibited by Title IX which can trigger a private damage action by the plaintiff (Davis, 1999, p. 1671). A school's misconduct causes the plaintiff to be subject to discrimination when the school exercises"substantial control over the harasser" and the context in which the known harassment occurs" (e.g., "during school hours and on school grounds" p. 1672). The complained after conduct must be "sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victim's educational experience, that the student is effectively denied equal access to an institution's resources and opportunities" (p. 1675). Whether a school's response to student-on-student actions rises to the level of misconduct prohibited by Title IX is to be judged by the totality of the circumstances. Actionable conduct will likely go beyond "simple acts of teasing and name calling among school children" (p. 1675), and likely will require more than "one instance of peer-on-peer harassment" (p. 1675).

Implications for psychologists

The holding in Davis has important implications for psychology research and practice. Researchers can study judgments of when offensive behavior between students crosses the sexual harassment threshold. School psychologists can develop programs to teach students to avoid sexually harassing conduct, and to identify and report harassment when it does occur. Clinicians can develop approaches to assess psychological damage that children may suffer in these situations. Lastly, policy advocates with an eye toward psychological interventions can explore potential conflicts between the First Amendment's protection of free speech and speech codes that could be implemented in schools to address Title IX concerns.

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.

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