To federal officials, it's a matter of common sense: First-graders who give classmates an innocent peck on the cheek need not be suspended for sexual harassment.
But as the US Department of Education sends its new guidelines on sexual harassment to the nation's public schools, it is butting heads with many principals who prefer a different approach. In their view, strict zero tolerance of unwelcome sexual advances - not case-by-case discretion - is the wisest disciplinary tool.
While champions of local control say the US has no business telling school districts how to discipline students, others say the federal guidelines are an effort to bring some consistency to how the education community copes with on-campus sexual harassment.
In fact, discipline has varied widely. At one extreme, a principal in North Carolina last fall suspended a six-year-old boy for a week for smooching a classmate. More recently, an elementary school principal in Washington decided a verbal reprimand would suffice for a dozen boys who sexually assaulted two girls in a classroom broom closet. After parents objected and House Speaker Newt Gingrich (R) entered the fray, calling for the principal's dismissal, the District of Columbia school board suspended the principal and the classroom teacher with pay.
Many school officials say the Washington case illustrates the perils of "discretion" in punishment - the approach advocated by the Education Department. School districts have been sued, they note, by parents who argue that administrators did not take appropriate action to prevent sexual harassment or to punish offenders.
In a recent case, an eighth-grader from Petaluma, Calif., who regularly faced sexual taunts from her peers, sued the school district for emotional distress and collected $20,000 in a settlement.
"Twenty years ago, if a child was disciplined in school, parents would back [the principals] up," says June Million of the National Association of Elementary School Principals in Alexandria, Va. "Nowadays, we don't feel they support schools' authority. Maybe they'll even slap you with a lawsuit" if they feel a punishment is too harsh, or too lenient.
The Education Department has weighed in with its guidelines to help school districts address a problem that, by most measures, has been intensifying in recent years. A 1996 survey of 220,000 middle- and high-school girls showed that 3 of 4 have been sexually harassed in school, in incidents ranging from lewd remarks to assault.
In its guidelines, the department urges principals to use common sense, and to consider the age of the offender and the severity of the offense when deciding punishments.
"You have to gear the response to the situation," says Howard Kallem, an attorney with the Education Department's Office for Civil Rights. "You treat a 12-year-old differently from a 21-year-old. And you treat a first offense differently from a fifth offense."
BUT as educators work this summer to integrate the new guidelines into their school policies, they may not see it that way. Some say the guidelines may put school districts at greater risk of litigation.
"These guidelines are not designed to help people prevent sexual harassment," says Gwendolyn Gregory, deputy general counsel for the National School Boards Association in Alexandria, Va. "They're designed to help plaintiff's attorneys file lawsuits against the schools."
"They tell you how you can be held liable for damages," she adds, "but they don't tell you how to abide by the law."
It's too soon to know whether the federal government's call for disciplinary discretion can overcome school officials' fear of litigation - and their subsequent reliance on zero-tolerance policies. In fact, the no-nonsense, no-exceptions approach to discipline has been gaining ground for infractions ranging from weapons-toting to fighting.
A recent survey of principals by the National Association of Elementary School Principals shows that nearly 95 percent say zero-tolerance policies are necessary, including in cases of sexual harassment.