School Officials Face Lawsuits if They Ignore Sex Harassment of Students

WASHINGTON —  As students return to the classroom this fall, school officials have been put on notice that they can be sued if they ignore instances of gross and repeated sexual harassment of girls by other students.

Three federal courts ruled this summer that school districts, and perhaps school officials themselves, can be forced to pay damages to former students who were ridiculed, embarrassed and grabbed in hallways or on school buses. In each case, the girls and their parents had repeatedly complained to school officials, but nothing was done.

One sixth-grader from rural New York said she underwent a daily barrage of taunts, including “lesbo” and “dog-faced bitch.” Several boys grabbed her breasts in class, she said. According to the lawsuit, her mother’s complaints were brushed off with a school official’s observation that “boys will be boys.”

A Georgia case involved a girl who was mocked by comments about her breasts, and who endured daily grabbing. In Northern California, a mother reported that her daughter, having retreated into silence after boys repeatedly shouted “moo” at her, considered committing suicide rather than enduring the humiliation at school.

Not all the cases involve girls. A U.S. appeals court in Chicago in July reinstated a damage suit against a Wisconsin school district brought by a gay student who was repeatedly called “fag” and kicked and beaten in hallways. The July 31 ruling marks the first time federal antidiscrimination law has been extended to anti-gay harassment in schools.

Three weeks ago, civil rights lawyers at the Department of Education sent a directive to the nation’s 15,000 school districts telling them they have a duty to protect students from sexual harassment. Currently, 78 school districts are being investigated by the department over complaints of sexual harassment of students by other students.

While lawsuits and damage claims might not be an ideal way to force a change, they will certainly get the attention of school officials, says one expert on discrimination law.

“Employers woke up to this when a few big damage awards were handed down,” said Merrick T. Rossein, a law professor at the City University of New York. “The school people need to wake up to this issue and take action. I think a few damage awards will do it.”

A legal expert on workplace discrimination, Rossein was contacted by the parents of the sixth-grader who had suffered daily harassment at her junior high school.

“They would have accepted an apology and a commitment to do something about the problem,” he said. But they decided to file suit after the harassment became so severe they felt it necessary to transfer their daughter to another school, he said.

Lawyers for the school had maintained that officials could not be sued over the actions of students. But on July 24, U.S. District Judge Thomas J. McAvoy in Binghamton, N.Y., disagreed. He ruled that educators, if told of a sexual-harassment problem, can be held liable if they fail to take action. The suit goes to trial this month.

On July 22, U.S. District Judge Claudia Wilken in Oakland cleared the way for a damage trial against the Petaluma, Calif., school district. She acted on a suit filed by a young woman who says she was repeatedly called “slut” and “whore,” among other things, during her junior high school days in 1991 and 1992.

Before that, another federal judge had said the school could be found liable only if its officials engaged in “intentional” discrimination against the girl. That high standard would be hard to prove, if not impossible.

But Wilken ruled that the workplace standards for sexual harassment also apply in the schools. Petaluma officials are liable if they “knew or should have known” of the harassment suffered by the young woman, yet “failed to take remedial action” to stop it, she wrote in her opinion. That case also goes to trial soon.

In the Georgia case, federal appeals court Judge Rosemary Barkett said school officials can be forced to pay damages if they are told of the problem and “knowingly fail to act to eliminate the harassment.”

The new round of legal actions marks a major expansion of Title IX of the federal education code.

In 1972, Congress added Title IX to make clear that schools and colleges could lose their federal funds if they discriminated against girls by, for example, offering sports teams for men but not women.

Four years ago, the Supreme Court raised the stakes when it ruled school districts could be sued for damages for violating Title IX. The Georgia case, Franklin vs. Gwinnett County Schools, arose when a young woman complained that a sexually aggressive teacher had harassed and seduced her in high school. School officials had been warned several times about the teacher’s pursuit of his female students.

The high court ruling established that school officials are responsible for sexual harassment by teachers or other employees. The latest decisions extend that duty to include harassment of students by other students.

Not all federal courts are in agreement. In April, a U.S. appeals court in New Orleans threw out a sexual-harassment complaint brought by the mother of a Texas girl. “The mere existence of sexual harassment [at school] does not necessarily constitute sexual discrimination,” wrote Judge Jerry Smith for a 2-1 majority.

But Clinton administration lawyers have joined the mother’s appeal to the Supreme Court. The school is being sued “for its own conduct in knowingly allowing a discriminatory environment to continue,” said U.S. Solicitor Gen. Walter Dellinger.

School lawyers question the need for lawsuits. But they also are rushing to get the nation’s secondary schools to enact strict policies against harassment of students by their peers.

“It’s horrible what some of these girls have gone through, but it’s not that easy to stop it,” said Gwendolyn Gregory, counsel for the National School Boards Assn. “This is not like employment. There, you can say, ‘If you do this, you’re fired.’ You can’t do that with all the boys at school.”

She said federal officials should help school districts adopt grievance procedures and educate their staffs, rather than bringing legal complaints.

“Surely there is a better way to deal with this than lawsuits,” she said.

Meanwhile, the organization that represents junior and senior high school principals is urging its members to adopt clear policies against student harassment, as well as procedures for victims to complain about violations.

“They need to be proactive. That’s what we have been telling them,” said Stephen Yurek, general counsel for the National Assn. of Secondary School Principals, based in Reston, Va. “They can’t just sit back and say, ‘Well, boys will be boys at that age.’ They need to be clear that it’s not permitted. They need to have a way to report problems. They also need to make sure they are investigated and something is done.”

Federal officials stress that schools can avoid liability simply by acting on complaints. “That’s why we wanted to get these [draft regulations] out, to show schools how they can avoid a problem,” said Roger Murphy, a spokesman for the Office for Civil Rights.