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  •   Schools Liable for Harassment

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, May 25, 1999; Page A1

    The Supreme Court ruled 5 to 4 yesterday that public schools can be sued and forced to pay damages for failing to stop sexual harassment by students, a decision that some experts predicted would lead to widespread sexual harassment training in the nation's schools.

    Sharply divided along ideological lines, the court determined that public school districts that receive federal funds can be held liable when they are "deliberately indifferent" to the harassment of one student by another.

    Justice Sandra Day O'Connor, writing for the majority, emphasized that school districts should be held responsible only for misconduct that is so "severe, pervasive, and objectively offensive" that it makes it impossible for students to receive the benefits of their public education. "It is not enough to show . . . that a student has been 'teased' or 'called offensive names,'" she wrote.

    While some experts and local school officials said the resulting legal threshold would be high enough to discourage frivolous suits, the opinion provoked furious dissent from conservative justices, who said it could spur a wave of litigation against public schools and crush them with legal costs.

    Justice Anthony M. Kennedy broke tradition by reading portions of his dissenting opinion from the court's mahogany bench.

    "The majority seems oblivious to the fact that almost every child, at some point, has trouble in school because he or she is being teased by his or her peers," he wrote. "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."

    The ruling comes after years of conflicting lower court decisions over whether students and their parents can sue schools for peer sexual harassment under a federal law, known as Title IX, that prohibits sex bias in schools that receive federal aid. Women's rights groups applauded the decision as a victory, as did gay rights advocates, who hope to use Title IX to fight abuse of lesbian and gay students by their peers.

    While school officials said they regretted the court's imposition of new areas of liability, some took solace in the majority's standard requiring deliberate indifference by authorities in the face of especially severe conduct. That is a much higher standard than what adult workers claiming sex harassment face in lawsuits against their employers.

    The case was one of the most divisive on the court this year, with O'Connor herself likely providing the critical fifth vote. In the majority with her were the more liberal justices: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Signing Kennedy's dissent were Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

    "The majority gave life to the promise of Title IX, that sex discrimination cannot be chalked off and ignored," said Marcia Greenberger, co-president of the National Women's Law Center, which represented the Georgia fifth-grader whose torment at the hands of a boy who sat next to her in class started the case.

    Lawyers for students, as well as those who speak for schools, emphasized that one likely result of yesterday's ruling would be more training for teachers and students on what kinds of behavior are unacceptable.

    "It's going to require focused attention by school officials to effect the kind of changes the court is intending," said Lisa A. Brown, a Houston lawyer who wrote a "friend of the court" brief for the National School Board Association in yesterday's case. "Fifth graders, even 10th graders, are still learning how to be good citizens," Brown wrote. "You can use suspensions and have talks and other discipline and often the message doesn't get through on the first, the second or even the third time."

    Brown said that although the school board association would have preferred that school districts not be held liable for peer harassment, O'Connor's "deliberate indifference" standard is high. "We can live with it," she said.

    Brown's sentiment was echoed by local school officials, many of whom said their schools already respond aggressively to reports of sexual harassment.

    Brian Porter, a spokesman for Montgomery County schools, said the Supreme Court ruling "appears to reaffirm what we're doing." Since the school system created a new sexual harassment policy in 1994, the few complaints received have been "resolved amicably" within the schools, he said.

    "There is a difference between teasing and sexual harassment," said Paul Regnier, coordinator of community relations for the Fairfax County school system. "I can't imagine there would be a situation where there would be repeated complaints and we wouldn't react."

    The case that provoked yesterday's Supreme Court ruling, Davis v. Monroe County School Board, arose out of complaints at Hubbard Elementary School in Forsyth, Ga. Beginning in late 1992, fifth-grader LaShonda Davis was sexually taunted by a boy in her class who tried to grab at her breasts, rubbed against her in the hallways and whispered that he wanted to "get in bed" with her. Despite repeated complaints from LaShonda's mother, Aurelia Davis, school officials failed to do anything to stop the boy, according to filings in the case. In 1994, Aurelia Davis sued the Monroe County Board of Education under Title IX of the 1972 Education Amendments, which covers public education on all levels. (She also had taken her complaint regarding the boy known in the court filings only as G.F. to the local sheriff; the boy ultimately pleaded guilty to sexual battery.)

    Although the school board won in lower courts, other peer harassment lawsuits filed nationwide yielded conflicting results, leading the Supreme Court to take up the case and establish a uniform standard.

    Yesterday's ruling extended a decision from last term, in a case of harassment by a teacher, that said students could sue under Title IX if they showed that the school officials knew of and were deliberately indifferent to the misconduct.

    The Monroe County School Board had argued that Title IX did not clearly put schools on notice that they would be responsible for peer sexual harassment as a condition of receiving federal funds.

    O'Connor acknowledged that when Congress puts conditions on the receipt of federal funds it must be clear about the recipient's obligation. But she wrote that federal regulations, common law and state court rulings had all provided schools with some warning that they must protect students from their peers.

    Warren Plowden, lawyer for the Monroe County schools, said he regretted that the court had reinstated the Davis case, but he said he thought the court set a high enough bar that Davis might not prevail.

    "It's going to be tough for any plaintiff to win any of these cases," Plowden maintained, "unless she can show that the school did nothing."

    Staff writers Amy Argetsinger and David Nakamura contributed to this report.

    © Copyright 1999 The Washington Post Company

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