Supreme Court Watch: Schools and Student on Student Sexual Harassment
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PHIL PONCE: The court heard arguments today in a sexual harassment case from Georgia. At issue: Is a school responsible for student-on-student harassment? For more on the case we turn to NewsHour regular Jan Crawford Greenburg, legal affairs reporter for the Chicago Tribune.
PHIL PONCE: Jan, first of all, this case is being called by some one of the most important cases of the term. Why is it considered so important by those folks?
JAN CRAWFORD GREENBURG: It could have a very broad impact that would affect every school in the country, as well as the nation’s 45 million school children who – as one lawyer told the justices today – are trying to sort out the differences, being a boy or a girl.
PHIL PONCE: And the facts in this specific case, what happened?
JAN CRAWFORD GREENBURG: Well, this case about during the 1992/93 school year when Leshonda Davis, a fifth grade student in a small Georgia town, Forsythe, outside of Macon, said she began being sexually harassed by a classmate, who we know by his initials GF.
Leshonda said that the boy, GF, sexually harassed her eight different times over a five-month period. She said his behavior was crude and offensive, that he groped her, that he said he wanted to have sex with her, that he simulated a sex act. And after each incident, she complained to a teacher and ultimately to the principal.
PHIL PONCE: So the alleged behavior went well beyond the rough-housing that kids engage in – pulling hair or pushing on the playground. This was – the allegations were that it was very aggravating.
JAN CRAWFORD GREENBURG: Right. She said it was just horrible and very traumatizing to her. So that’s why she complained to the teachers after each incident and then, like I said, to the principal. But Leshonda said that the teachers and the principal did nothing. It took her three months before she could move her seat away from the boy, and the principal took no action, she said, other than just threaten him with disciplinary action.
Obviously, like you said, I mean, these incidents to Leshonda were more than horse play, and they upset her very deeply. She said that her grades suffered, and she even wrote at one point a suicide note that her father found.
PHIL PONCE: So the student and her mother sued and -
JAN CRAWFORD GREENBURG: They did.
PHIL PONCE: On what basis did they sue?
JAN CRAWFORD GREENBURG: They pointed to an education funding law known as Title IX, which prohibits institutions that get federal money from discriminating based on sex. And Leshonda and her mother said that the school district should be responsible because it gets federal money, and it’s basically engaging in sex discrimination by allowing this harassment to occur.
PHIL PONCE: And the federal appeals court said no, that -
JAN CRAWFORD GREENBURG: That’s right.
PHIL PONCE: — Title IX did not cover the situation, which brings it to the Supreme Court. What arguments did the student’s attorneys make in court today?
JAN CRAWFORD GREENBURG: The student’s attorney argued first, and she made the point in response to some pretty pointed questions by the justices that this was severe behavior and that it should be prohibited under the education law, Title IX, because it was very severe and pervasive; it was more than, as she said, simple teasing.
A lawyer for the Justice Department, who also argued on behalf of the student, went, you know, further than that. He said that this case –here the response by the school district was deliberately indifferent, so it should be held liable also because Leshonda had been so traumatized and essentially had been denied educational benefits, in violation of the federal law.
PHIL PONCE: And you say the justices were asking a lot of questions. What kinds of questions did they ask?
JAN CRAWFORD GREENBURG: From the very beginning, I mean, they are very concerned, and it was quite a lively argument, but they were very concerned about how you would draw the line between a simple childhood teasing or horseplay and the more serious forms of illegal sexual harassment. Now, the lawyer for the school district here, the Monroe County Board of Education, said that such conduct never should be prohibited; Title IX should never come into play when students harass other students.
He was worried that if that were the case, that school boards could really suffer financial ruin — that it’s a very different thing when we focus on adult misconduct, say one adult in the workplace sexually harassing another adult, than when we’re talking about misconduct by children.
PHIL PONCE: Concern on the part of justices that instances involving roughhousing, whatever, could all of a sudden become “federal cases?”
JAN CRAWFORD GREENBURG: Oh, absolutely. I mean, Justice O’Connor got the conversation kicked right off at the first question, saying, schoolchildren nationwide tease each other; is every one of those instances going to lead to a sexual harassment lawsuit, and that was a quote from her.
Justice Souder said that he was concerned that there was no way to draw the line, that we’re going to have federal guidelines for every instance of first-grade teasing. And some of the justices expressed concern beyond a mere line drawing that we were really getting federal courts into business that is better handled by educators and, as Justice Breyer said, psychologists, that this is something that lawyers and attorneys really should just stay out of and let the schools handle what is really a disciplinary problem.
PHIL PONCE: And the response to some of those concerns that the Justices raised from the student’s attorney?
JAN CRAWFORD GREENBURG: Well, they made a point, that, well, this is – we’re not asking for this law to come into play on every instance of teasing; we think it should come into play when the behavior by the student, the harassment behavior is severe and pervasive, and it really harms the student.
And I should say, I mean, despite the justices’ skepticism, I don’t think that we can assume that the court is going to side with the school board here. There was some discussion about and some suggestion that perhaps students, while they might not be able to sue for money, for financial damages, perhaps they might be able to sue to have the board change its way, to come in and stop the behavior. And Justice Stevens put forth somewhat of an extraneous example that didn’t sit well with some of the justices either.
He said, let’s say we have a situation where there’s one baseball field at a school and the boys get to play for one hour and the girls play on the field for the second hour, and that’s the school’s policy. But for whatever reason, the boys decide that they’re not going to give the field up. The teacher stands by and week after week the boys say, sorry, girls, you know, I know your hour’s here, but you can’t come on the field, so the girls are denied access to the field and the school does nothing. Well, according to the school board’s attorney that would not present a cause of action under Title IX.
PHIL PONCE: Because the school board’s attorney is basically saying that once you go that route, it opens up a can of worms.
JAN CRAWFORD GREENBURG: Right.
PHIL PONCE: In federal intervention in school conduct and that sort of thing.
JAN CRAWFORD GREENBURG: Exactly. Exactly. And he said that the same would be true if it were a group of black students – I mean, a group of white students who were trying to exclude black students, if this was just something – the student-on-student behavior – that this law doesn’t consider.
PHIL PONCE: Jan, thank you very much.