When kids harass kids at school
High court hears case that will decide if schools are liable forsexual harassment.
WASHINGTON — When the boy who sat next to LaShonda Davis in her fifth-grade class tried to fondle her, she knew exactly what to do. She told her teacher. When the boy's unwanted behavior grew increasingly offensive and threatening, she complained again, and again, and again. At one point during the six-month ordeal, LaShonda told her mother that she "didn't know how much longer she could keep him off her." Her grades suffered, and her father found a suicide note. Three teachers and the school principal knew of her plight. But no one took action against the boy to help her. On Jan. 12, the US Supreme Court took up the issue of whether officials at LaShonda's Georgia elementary school had a legal obligation to protect the 10-year-old girl from sexual harassment by the other student. It is a case with implications for virtually every school in the US. It holds the potential to make fighting sexual harassment an essential component of education policy from coast to coast. Some school officials are also concerned that a high court ruling for LaShonda could trigger an explosion of legal costs in cash-strapped districts forced to defend similar suits. The case has split the education establishment: The National Education Association, the largest teachers union, is on LaShonda's side and the National School Boards Association is backing the school district. "It is a very important case because it stands for very basic principles," says Jocelyn Frye of the National Partnership for Women and Families in Washington. "The issue is whether a school can be held liable when they know about sexual harassment among students and they do nothing." Legal arguments Specifically, the case is about whether LaShonda's mother, Aurelia Davis, can sue the school district for damages as a result of what she says was deliberate indifference by school officials to the sexual harassment of her daughter. It is unclear how a majority of the nine Supreme Court justices will rule. But some analysts believe it may come down to a classic 4-4 split between the conservative and liberal wings of the court, with Justice Sandra Day O'Connor casting the deciding vote. During oral arguments, Justice O'Connor began the questioning in earnest: "I'm sure schoolchildren nationwide tease each other, and little boys tease little girls throughout their school years. Is every one of these going to result in a lawsuit?" "No," responded Verna Williams, a lawyer for Mrs. Davis. It would have to be severe, offensive, and pervasive, she said. Justice Antonin Scalia shot back: "Little girls always tease little boys - that's pervasive." Ms. Williams, with the National Women's Law Center in Washington, later responded that simple teasing would never constitute sexual harassment. The lawyer for the Monroe County Board of Education, W. Warren Plowden, asked the court to draw a bright line in barring such suits in federal court. He warned that if it ruled in favor of LaShonda and applied adult legal concepts to the actions of children, it would subject school disciplinary actions to legal review and encourage litigation. Mr. Plowden said student-to-student sexual harassment should be left to school officials and parents to deal with. District lawyers say school officials can't be sued as a result of the wrongdoing of a student when the student is neither a school official nor acting at the direction of an official. They question why the school district should be forced to pay damages as a result of someone else's wrongdoing. Davis's lawyers say school officials helped perpetuate the sexual harassment of LaShonda by failing to take prompt action to stop the harassment. The controlling law is Title IX, the federal statute that outlaws sex discrimination by schools receiving federal funds. Plowden says the case should be thrown out because Title IX applies only to gender discrimination and does not encompass sexual harassment. Davis's lawyers counter that Title IX prohibits discrimination. Sexual harassment is a form of discrimination, they argue, and if a school refuses to stop ongoing student-to-student sexual harassment, the discrimination is compounded through the deliberate inaction of school officials. "When schools fail to address and remedy sexual harassment, they are really subjecting students to discrimination, which is what Title IX" was meant to prevent, Williams says. Common problem? Some legal analysts suggest the Davis case might encourage the filing of similar lawsuits. School officials know that questionable behavior is not uncommon in American schools. One survey showed that 83 percent of girls in Grades 7 to 12 experienced some form of sexual harassment. "The law doesn't require schools to respond perfectly to sexual harassment," Williams says. "In order for schools to be in compliance with Title IX, they have to take reasonable steps to address the sexual harassment." Legal experts say such reasonable steps could include changing the seat assignment of the alleged harasser, confronting the alleged harasser, or even suspending the alleged harasser from school. In its brief to the court, the National School Boards Association says that claims for damages under Title IX must hinge solely on the existence of gender discrimination by the school, "not on whether schools are successful in responding to allegations of student misconduct." In LaShonda's case, it was the desperate action of her mother that made the difference. Eventually, Davis gave up on school officials and turned instead to police. She filed a criminal complaint. Once confronted and facing serious consequences, the boy - who has been identified only by his initials - pleaded guilty to sexual battery. Then Davis sued the school district seeking $500,000 in compensation for her daughter's ordeal, and an injunction requiring school officials in the future to promptly address student complaints of sexual harassment by other students. A decision in the case is expected by June.