If Billy teases Suzy, can Suzy sue?


By Curt A. Levey

The Wall Street Journal, January 12, 1999

Sexual harassment law may be coming to elementary school. Today the Supreme Court hears arguments in Davis v. Monroe County Board of Education, a case that will decide whether schools can be held liable under Title IX of the 1972 Education Amendments, which bars sex discrimination, for student-on-student sexual harassment.

Call the lawyers!

Plaintiff LaShonda Davis is demanding $500,000, based on her claim that a fifth-grade Georgia classmate sexually harassed her on eight different occasions, while school officials did little to stop the harassment. Her case, litigated by feminist advocacy groups, has the support of the Clinton administration.

The crusade to extend Title IX is driven by a belief that sexual harassment now ranks among the greatest threats to the nation’s schoolchildren. A report by the American Association of University Women concluded that harassment “will continue to deny millions of children the educational environment they need to grow into healthy, educated adults.”

To be sure, sexual misconduct, even by schoolchildren, can reach the level of assault–from which the victims, like all Americans, are protected by criminal and civil tort law. In fact, LaShonda’s fifth-grade classmate was charged with sexual battery as a result of her complaints.

But according to the AAUW study, 65% of students in grades eight through 11, including 54% of boys, have been victims of student-on-student sexual harassment. The organization came up with these numbers by using a definition so broad that it includes behavior as trivial as “sexual comments, jokes, gestures or looks.”

If the court in Davis issues an open-ended ruling in the plaintiff’s favor–as it has tended to do in past sexual harassment cases–students may be able to make a federal case out of an unwanted peck on the cheek. Bureaucrats at the Justice Department’s Office for Civil Rights will be awfully busy if the Supreme Court hands them the job of disciplining schoolchildren, a task that teachers and principals find challenging enough. If the AAUW is right, that’s seven million potential complainants in just four of 12 grades. Some legal scholars have suggested that schools drowning in a sea of Title IX legal bills and damage awards should turn around and sue parents for indemnification.

Expansion of Title IX would also damage the First Amendment. The interpretation urged by LaShonda’s lawyers would force schools to prevent any behavior that contributes to a “sexually hostile learning environment”–including constitutionally protected speech. Since previous sexual harassment cases have established that a hostile environment can arise from the cumulative effect of seemingly innocuous remarks, it is very likely that officials frightened by the prospect of lawsuits will trample on students’ First Amendment rights.

Schoolchildren don’t enjoy full First Amendment protection in the classroom as it is, but Title IX applies with equal force to colleges and universities. When California’s Santa Rosa Junior College failed to prevent two men from making derogatory remarks about a female student in private messages sent through the school’s computer system, the Office for Civil Rights found the college guilty of sexual harassment. Threatening to terminate the school’s federal funding, the office demanded that Santa Rosa adopt a speech code banning “comments that harass, denigrate, or show hostility . . . based on sex, race, or color, including slurs, negative stereotypes, jokes, or pranks,” with no exception for political speech. Suppose a student argues that female professors, because they benefit from affirmative action, are less qualified than their male counterparts. Whatever the merits of this position, it is clearly a legitimate political point of view–yet the Office for Civil Rights might well demand that it be censored.

The 11th U.S. Circuit Court of Appeals rejected LaShonda’s claim, stressing that Title IX makes no mention of sexual harassment and that the legislative history makes clear that the statute is aimed at intentional discrimination by educational institutions themselves. Though teachers’ harassment of students has been held to fit that description, it’s a stretch to claim that ineffective discipline of fifth-graders does.

Applying workplace sexual harassment standards to schools, as the Office for Civil Rights advocates, makes little sense. It’s one thing to hold employers responsible for the behavior of employees they can hire, fire and promote, another to hold a school liable for the behavior of unruly children who have the same legal right to an education as their well-behaved classmates.

Not even the Warren Court could have imagined that antidiscrimination statutes, which say nothing about sexual harassment, would someday be interpreted to put off-color jokes, unsolicited compliments and lusty looks on a par with refusing to hire women and minorities. Yet with this case, the Supreme Court could finally set some limits on the expansion of sexual-harassment law.