IT IS NO SURPRISE that the Supreme Court split 5 to 4 in holding that school boards can be sued for damages if they willfully fail to stop egregious instances of student-on-student sexual harassment. It's not just that the statute in question -- which provides federal money to schools but insists that students be protected from discrimination "under any education program or activity" receiving that money -- applies somewhat ambiguously to peer harassment. It's also that the policy concerns on both sides of the case are so strong that any thoughtful body would have significantly mixed feelings.
It's hard to argue that the plaintiff in this case should be thrown out of court, as the lower courts did. Her daughter, LaShonda Davis, claims that a boy in her fifth-grade class repeatedly grabbed her breasts and genital area and sexually taunted her, that she repeatedly complained about it to school authorities and that she was repeatedly ignored. This allegedly continued for many months, while the school did nothing to discipline the perpetrator nor even to separate LaShonda from him. At some point, presumably, such negligence on the part of a school system becomes more than neglectful. It becomes a kind of abuse that prevents a student from learning. Why exactly should this not be actionable under federal law, which, after all, does protect adults from such conduct in workplaces that are not federally funded?
At the same time, as other areas of sexual harassment law have shown, attempts to articulate a principle under which a limited subset of harassment cases can go forward tend to open a can of worms that permit great numbers of meritless suits to be entertained or merely threatened. Justice Sandra Day O'Connor has clearly tried to carve out a very narrow set of circumstances under which student-on-student harassment cases can be brought against school boards: "only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities" and only then when the harassment "is so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit."
That sounds pretty good. But it would be naive to think that this decision will not encourage myriad suits against school districts, and -- as the dissenting justices point out -- that the threat of such actions will not affect the tone and substance of educational instruction. As Justice Anthony Kennedy put it in dissent, "Today's decision mandates to teachers instructing and supervising their students the dubious assistance of federal court plaintiffs and their lawyers and makes the federal courts the final arbiters of almost every disagreement between students. . . . After today, Johnny will find that the routine problems of adolescence are to be resolved by invoking a federal right to demand assignment to a desk two rows away."
This may be hyperbole, but Justice Kennedy's concern is serious. Experience will show whether this decision proves to be the narrow exception the majority intends or the opening of the floodgates that the minority fears.