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  •   High Court Reviews Student Sexual Harassment

    Supreme Court
    (Ray Lustig — The Post)
    By Joan Biskupic
    Washington Post Staff Writers
    Monday, January 11, 1999; Page A6

    For months, a boy in LaShonda Davis's fifth-grade class made her life unbearable. Whenever he got the opportunity, he would sexually taunt her by trying to grab at her breasts, rub against her in the hallways or whisper that he wanted to "get in bed" with her. Once, he put a doorstop in his pants and gestured suggestively.

    It became a debilitating ritual for LaShonda, whose grades began to fall. And for her mother, Aurelia Davis, it was an infuriating nightmare – she repeatedly asked the teacher and other authorities at the Forsyth, Ga., elementary school to do something to stop the boy whose desk was next to LaShonda's. But to no avail.

    "One day she came in the door," Davis recently recounted in thinking back on LaShonda's ordeal, "she dropped her head and a tear rolled down her cheek as she said, 'He did it again.'"

    What Aurelia Davis did next might have been unheard of in years past, but not anymore: She sued the Monroe County School Board claiming that educators had not done enough to protect her child from sexual harassment.

    Parents nationwide are increasingly turning to the courts in hopes of making schools accountable when their children are groped, grabbed and sexually tormented by other students. This week the U.S. Supreme Court will hear oral arguments on whether school boards should be forced to pay money damages when students in their classrooms are victimized by their peers.

    In the Davis case, the Monroe County School Board said nothing in federal law makes the school liable for a student's bad behavior. The board won in lower courts.

    The Supreme Court's eventual ruling in Tuesday's case could set a national standard and resolve conflicting views among lower court judges on whether parents should be allowed to sue when confronted with such circumstances.

    Recent studies suggest that the majority of junior and senior high school students experience some sexual harassment and that more and more schools are setting policies to punish those who do it. But at the same time, schools have occasionally drawn criticism for overreacting – most notably in 1996, when a first-grader in North Carolina was suspended for kissing an unsuspecting classmate. Officials are struggling with how to strike a balance in the classroom, and at this point, school boards say the courts shouldn't be part of the problem.

    The National School Boards Association, siding with Monroe County, has told the justices that misconduct among students is difficult to sort out: "Was the act of pushing in the hallway 'sexual harassment' – or was it merely pushing in the hall? . . . Which student was more credible?" The association also has warned that if Davis prevails, it would have a "serious financial impact" on the nation's schools.

    While myriad educational and social dilemmas are called into play, the legal question for the Supreme Court is straightforward: Does a federal law prohibiting sex bias in schools that receive federal funds allow parents or any private party to sue for money damages when one student is sexually harassed by another?

    The Supreme Court has long considered such abuse a form of discrimination. But the protections against sexual harassment derived from Title IX of the Education Amendments of 1972 are not as broad as those stemming from a separate federal law, known as Title VII, that governs the workplace. That is because Title IX is not an outright prohibition on bias; rather, it conditions an offer of federal funding on a school district's vow not to discriminate.

    Last term the court reviewed Title IX in the context of teacher harassment arising from the case of a Texas high school girl who was seduced by her social studies teacher. The justices said school districts could be held responsible for a teacher's sexual misconduct, but only if the district had actual knowledge of it and was deliberately indifferent.

    Verna L. Williams, the lawyer who will represent the Davis family at the Supreme Court on Tuesday, said last year's ruling against the student victim actually helps the student in this case, because Aurelia Davis repeatedly complained to teachers and the principal about the boy, identified in filings only as "G.F." Davis also took her complaint to the local sheriff and the boy ultimately pleaded guilty to sexual battery. But Davis wanted the school to have to pay for the damage done to her daughter, and she wanted to ensure that the boy was kept away from LaShonda.

    Williams, an attorney with the National Women's Law Center, contends in her written brief that Congress intended Title IX to broadly ban sex discrimination, including student-on-student harassment. She stresses that if schools are to offer equal opportunities for all students, female students cannot be victimized by sexual harassment from their peers without any redress.

    Aurelia Davis said the ordeal made her daughter – once diligent and cheerful – unable to do her school work and stressed out. "She seemed pure exhausted," the mother said of her daughter, now 16. LaShonda was afraid during the ordeal six years ago that she wasn't going to be able to keep the boy off of her and at one point wrote a suicide note.

    Even if all the allegations are true, Monroe County school officials say, Davis still cannot sue. School board lawyer W. Warren Plowden Jr. has asked the court to affirm the 11th U.S. Circuit Court of Appeals decision that Title IX does not allow a lawsuit based on a school's failure to act against student sexual harassment.

    The appeals court said that because Title IX was passed under Congress's spending power, Congress must unambiguously detail all the conditions that accompany a grant, so that a school knows its obligations.

    Plowden said that nothing in the language of Title IX puts a district on notice that it could be held financially responsible for student-on-student sexual harassment.

    The U.S. Justice Department has sided with Davis, interpreting federal law as making schools liable as long as they knew about the harassment and failed to respond.

    The government emphasizes that teachers and administrators are in a position to prevent or punish misconduct, "by disciplining, reassigning, excluding, or otherwise inducing a change in the behavior" by the offending student. When the school fails to step in, it forces the victim "to attend school in a discriminatorily hostile or abusive environment," which Title IX was intended to prevent.

    The case is one of the most closely watched of the term and the first to come before the court since Chief Justice William H. Rehnquist began presiding over the trial of President Clinton. Under the schedule approved by the Senate on Friday, Rehnquist is likely to be available for Tuesday's oral arguments in Davis v. Monroe County Board of Education.

    But if the chief is called to the Senate chambers then or during any other scheduled case, the next most senior justice, John Paul Stevens, will preside. Any absence by Rehnquist would not prevent him from voting with his colleagues in their private conference on a case.

    © Copyright 1999 The Washington Post Company

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