Schools deemed liable for pupil sex harassment

Split Supreme Court outlaws continuing, severe provocations, New right, with limitations

May 25, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Creating a new but limited legal shield for students who are sexually harassed by their classmates, a divided Supreme Court yesterday outlawed severe and continuing sexual taunts or touching in classrooms and on school grounds.

The 5-4 decision marked a breakthrough in the law of sexual harassment and drew praise from advocacy groups for the rights of women and gays.

The court had never ruled on whether student-on-student harassment was ever illegal under federal civil rights law.

Before yesterday, victims of peer harassment and their parents could sue only for damages in the limited circumstances allowed under state law. If the assaults were serious enough, the harassers could be prosecuted criminally.

The decision allows LaShonda Davis, who is now a teen-ager, and her mother to go ahead with a civil rights lawsuit against a school district in Forsyth, Ga., over five months of escalating comments, touching and physical gestures by a boy when she was a fifth-grader in 1992.

The new right created by the decision, however, was surrounded by limitations, making it difficult for victims of student-on-student harassment to win damages from school districts.

For example, the court stressed that "damages are not available for simple acts of teasing and name-calling among schoolchildren," even when those are sexual in nature.

It would be rare, it added, for damages to be awarded for a single act of sexual harassment of one student by another, because schools should be held liable only in cases "having a systemic effect" on educational programs or activities.

The harm must be traced to "deliberate indifference" by school officials in response to harassment that they clearly know about, and the harassment must have been "so severe, pervasive, and objectively offensive" that it shuts out the victim from a program or activity at school.

Officials are responsible, it said, only when the harasser is withinthe school's control -- that is, the harassment occurs in the classroom or on school property.

The court also emphasized that school officials could not be blamed directly for the actual misconduct of students. Only their own "unreasonable" reaction in the face of serious harassment can lead to damages, it said.

The case involving the Georgia fifth-grader has not gone to trial because lower federal courts ruled that student-on-student harassment is not outlawed by federal civil rights law. In her lawsuit, the teen-ager, joined by her mother, said her grades suffered and she began reacting fearfully as the boy continued to harass her, and school officials declined to take steps to stop his behavior. The girl and her mother then took the issue to the Supreme Court to gain the right to sue, granted by the court yesterday.

The court had ruled seven years ago that school officials could be sued for damages by students or parents when a student is sexually harassed by a teacher or a school staff member. But it had left open the issue of schools' legal responsibility when the harassment was done by another student.

"Schools are now on notice," said Verna L. Williams, vice president of the National Women's Law Center, a women's rights advocacy group. She urged school districts to "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 is the law."

David Buckel, a staff attorney for the Lambda Legal Defense Fund, a gay rights organization, said student-on-student harassment is the most common form of anti-gay conduct in schools. The ruling, he said, "is very important to our struggle to make schools safe for lesbian and gay students."

But Julie Underwood, general counsel of the National School Boards Association, reacted by stressing the limits the court had set on schools' liability. "This sets a very high standard; it's going to be a rare occasion when school districts are held financially liable under this standard."

She said districts across the country are developing policies to deal with harassment.

Justice Sandra Day O'Connor wrote the majority opinion, finding a right of students or parents to sue for peer sexual harassment under Title IX, a 1972 federal civil rights law that forbids sex discrimination in federally financed education programs.

O'Connor took care to stress that school officials will be left with wide discretion on how to deal with peer student harassment. The court, she said, would not impose specific disciplinary rules; it turned aside a suggestion that a harassing student must be automatically suspended or expelled.

Moreover, she said, no student victim was being given a specific right to dictate a remedy for harassment, such as a change of classes or desk assignment.

Her ruling was supported by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

Justice Anthony M. Kennedy, writing for the dissenters, said that nothing in Title IX "suggests that Congress intended or contemplated the result the court reaches." Also in dissent were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

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