Court's sexual harassment ruling puts schools on notice

By Kathryn Foxhall
Monitor staff

Schools are now on notice that they can't be complacent about sexual harassment, much as employers were given that message in the 1970s, says Verna Williams of the National Women's Law Center (NWLC).

In a decision handed down last May, the U.S. Supreme Court said that whenever student-to-student sexual harassment is an impediment to education, schools may be held financially liable. That means schools will have to carefully assess sexual harassment policies and take complaints about sexual harassment seriously, Williams explained at a Aug. 20 symposium that was part of the miniconvention on "Critical Issues for Women in the Next Millennia" at APA's 1999 Annual Convention, Aug. 20 - 24 in Boston.

The decision, from a case brought by a fifth-grade girl against a boy in her class, has the potential to "effect a significant change in education and really motivate schools to take a serious look at how they handle sexual harassment," said Williams. NWLC represented the mother of the girl allegedly harassed.

The case, Davis v. Monroe County Board of Education, originated in 1993 when LaShonda D. (as she is identified) was a fifth-grader in Monroe County, Ga. A boy in her class, in repeated incidents, attempted to touch her breasts and genitals, rubbed up against her in a way she considered sexual and told her things like, "I want to get in bed with you."

LaShonda and her mother reported the problems to teachers and the principal, but no disciplinary action was taken. It took three months just to get permission to move her assigned seat away from the boy. The girl's grades fell, Williams said, and she considered suicide. Her mother finally filed a criminal complaint against the boy, who pled guilty to sexual battery.

But the mother also sued the school, Williams told her audience, for violation of the educational amendments (Title IX) of the Civil Rights Act. She argued that the situation, in effect, barred her daughter from equal access to education.

NWLC took the case, said Williams, "with great trepidation." In its previous term, she said, the Supreme Court issued an "extremely hostile" response to the idea that schools might be held responsible for sexual harassment they didn't know about, just because it happened under their authority. The Court, Williams noted, was also very concerned that schools might be held liable for amounts exceeding what they received from the federal government.

And while the Davis case did divide the Supreme Court, its 5 - 4 decision recognized that school authorities did know about LaShonda's harassment.

Justice Sandra Day O'Connor, who wrote for the majority, said school boards that receive federal funds may be sued when they are "deliberately indifferent to sexual harassment" of which they have actual knowledge.

The decision cautioned, however, that the harassment "must be so severe, pervasive and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school."

The concept that schools may be held responsible in such cases is not new, said Williams.

U.S. Department of Education guidelines have already said such harassment is subject to Title IX rules.

But the new Supreme Court decision puts it on much firmer ground, Williams said. "The tone and the message that the Court sends to school districts," she said, is that they "cannot turn their backs and say, 'Well, that is just the way kids are...you don't have to deal with student-to-student harassment because kids are trying out their sexuality.'"

The decision in Davis sends a "message [that is] a very important one because back in the 1970s, employers got the same kind of message," she said. "Up until the last of the 1970s, courts were very reluctant to hold employers liable because they felt that sexual interaction...was just sort of the natural way men and women interacted."

But court decisions at that time instigated a sea of change in the workplace, she said, with employers beginning to focus carefully on sexual harassment policies and training.

"I think Davis marks a change in that attitude," Williams said, "as well in the education context."Y



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