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Schools, liability, and sexual harassment

Historic lawsuit highlights taunts, tragedy, and districts' predicament.

By Kris AxtmanStaff writer of The Christian Science Monitor / December 8, 2003



HOUSTON

Two hours before she would be stabbed to death during sixth period, a lawsuit contends, Ortralla Mosley complained to teachers at Reagan High School that her ex-boyfriend was becoming increasingly violent with her and that she was worried about her safety.

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That suit, filed in Austin last week, says school officials knew of Marcus McTear's violence with girls but were "deliberately indifferent." Now Ortralla's mother, Carolyn, is suing the Austin Independent School District for wrongful death under Title IX, the federal law prohibiting sexual discrimination in public schools. She seeks $23 million in damages.

It is the first Title IX case involving death and one of the largest in monetary demands. But even more important, experts say, it's a tragic reminder of sexual harassment as a persistent problem in hallways, on athletic fields, and in classrooms.

Most know Title IX as the law protecting gender equity in sports, but in two separate cases in 1998 and 1999, the US Supreme Court clarified that school districts could be sued under Title IX for sexual discrimination on campus, including student-to-student abuse. Since then, school officials have had to rethink harassment policies and implement new ones. They've made classroom environments more welcoming and made sure students, as well as teachers, are aware of the issue.

But experts say that while the high court's clarification put school districts on notice that they could be sued for such abuse, such cases can be extremely hard to win - and most suits of this nature have failed. In fact, many suggest the legal clarification on Title IX was made more to shield school districts than to protect students.

""It unfortunately gives students less protection than employees get in the workplace," says Jocelyn Samuels, vice president for education and employment at the National Women's Law Center. "It's counterintuitive, because schools should have a higher duty to protect their students from this kind of abuse."

To succeed, these cases must prove that school officials, or someone with authority at school, knew of the harassment but was deliberately indifferent - in other words, did nothing to help.

In the Mosley case, the lawsuit contends that 16-year-old Marcus McTear had a history of assaulting female students on campus - punching them, choking them, and pushing them down stairs. In addition, it says, officials were aware of the assaults, but did not take effective corrective action.

On March 28, the suit alleges, when Ortralla told teachers in the cafeteria about her concerns, those teachers made no attempt to protect her.

Ms. Mosley's lawyer, Sergei Kachura, did not wish to comment, saying only that he expected the case to go to trial within a few months. For its part, the Austin school district says it continues to grieve the loss, but will seek dismissal of the suit. Mr. McTear received a 40-year sentence in June, and will spend at least three years incarcerated in a Texas Youth Commission facility.

Granted, this is a dramatic, exceptional case: Most harassment consists of students' verbal abuse or of teachers' preferential treatment. The American Association of University Women (AAUW) published a report on the subject in 2001, showing that 83 percent of girls and 79 percent of boys in 8th through 11th grades have experienced harassment at school.

That's an increase, says Leslie Annexstein, director of the AAUW Legal Advocacy Fund. "The problem is still prevalent, and there is still a lot of work to do," she says. There has been a sea change, however, in awareness of school policies. Only 26 percent of students said their school had a sexual-harassment policy in 1993. Eight years later, 69 percent said their school had such a policy.

"There's hope that these educational policies put in place in recent years are working," says Ms. Annexstein. "Children need to be taught at an early age what's acceptable behavior and what is not permitted under the law."

In addition to the Supreme Court ruling, part of the impetus for schools' focus on sexual harassment was the Columbine massacre in April 1999. Locked schools, metal detectors, and check-in systems are now common in schools across the country. Teaching students how to recognize violence has often become part of the curriculum.

And within school safety, say educators, lies sexual harassment. "[That] is the newest kid on the block in terms of school safety," says Jerald Newberry, executive director of the National Education Association's Health Information Network. "We have watched corporate America really struggle with this issue in the past five to seven years. Now, as courts get clearer on the issue in classrooms, schools are having to adapt that language to ... third-, sixth-, and ninth-graders."

But it can be confusing and tricky, says Mr. Newberry, "especially for 11- to 15-year-olds who are learning who they are as sexual human beings, learning how to date, to show affection."

That's why, last week, his organization rolled out a program on bullying and sexual harassment in schools. It gets parents and teachers together to watch a video and brainstorm ways to talk to kids about the issues. Most districts have antiviolence policies but no specific policies on sexual harassment, he says. In the next few years, he continues, "sexual harassment is going to be the big topic in education."

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