In January, the Supreme Court heard argument on a case which could alter the landscape of school liability. The case, Davis v. Monroe County, arose out of a fifth-grade classroom in Georgia. The issue is whether the local school system can be held liable under Title IX when one student sexually harasses another. The stakes here are enormous.
LaShonda Davis was a fifth grader in Monroe County, Georgia. Over a six-month period, a fifth grade boy repeatedly made lewd suggestions and gestures to her. LaShonda and her mother repeatedly complained, requesting school officials to protect her. In response, the principal "threatened" the boy, and the teacher moved his assigned seat away from LaShonda. No disciplinary action was taken, although criminal charges were eventually filed against the boy, and he pled guilty to sexual battery. LaShonda sued the county school board, the superintendent, and the principal, claiming that she had been injured by the boy's conduct and deprived of the benefit of her elementary education. LaShonda lost her case in the trial court. The U.S. Court of Appeals initially ruled in her favor, but on rehearing, the court sided with the school system. (See the ruling here.)
The appeal to be considered by the Supreme Court focuses on Title IX, which provides "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]" The Monroe County School Board did not dispute that it received federal funding, so the key question became whether its failure to prevent the boy's abusive behavior deprived LaShonda of her education or subjected her to discrimination.
LaShonda's legal team&emdash;and the Clinton administration&emdash;argued that legal precedent developed for the workplace under Title VII should be applied to the classroom under Title IX. Title VII requires employers to make reasonably sure that the working environment is free of sexual harassment. In these "hostile workplace" cases, employers have been found liable for allowing a sexually hostile environment to exist, whether or not they are responsible for the actual harassment.
In theory, at least, the legislative history of Title IX will determine whether these Title VII principles can be applied to the classroom. Adopted in 1972, the anti-discrimination section of Title IX was described on the floor of the Senate as covering "admissions procedures, scholarships, and faculty employment." See 118 Cong. Rec. 5803 (1972) (Birch Bayh, Senator). Congress did not seem to be addressing student-to-student discrimination. Moreover, Congress passed the legislation under its spending powers, essentially placing conditions on the appropriation of federal funds. The Supreme Court has ruled that such conditions need to be unambiguous, so states (and schools) can make an informed decision as to whether to accept the federal funds. Thus the history of Title IX seems to indicate that Congress did not intend for it to apply in cases like LaShonda's.
Still, some lower courts have found schools liable for student-to-student harassment. (One court even found a dental school liable for a patient's harassment of a dental student.) Other courts have taken the more restrictive view--more in keeping with the statutory language and legislative history--that Title IX cannot be extended to student-to-student harassment.
If LaShonda wins her appeal, schools could face "whipsaw" liability in these cases, meaning that both the alleged harasser and the alleged victim could have claims. If the measures it takes to prevent the harassment are not strong enough--as in LaShonda's case--the victim could sue for allowing a "hostile environment" to develop. On the other hand, the measures could also be too strong, or the allegation could prove to be false. In such a case, the accused could well have a claim against the school because public education is a constitutionally protected right. To make matters worse, the spectre of a lawsuit by the victim could make school administrators biased in a disciplinary hearing invloving the accused. The administrators might have to recuse themselves and bring in independent persons to preside over the hearing.
We see a major warning sign for school systems in Supreme Court precedent. In 1992, the Court approved an award of damages against a school system for sexual harassment committed by a teacher. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, (1992). Of course, there is a logical distinction between actions committed by school board employees and those committed by students. In a hostile environment case, however, we're not sure that there is a legal distinction between teacher actions and student actions. The Title IX analysis we described above is not dependent on the identity of the tortfeasor. More importantly, in Franklin, the Supreme Court seemed to accept the notion that students are entitled to the same rights at school as workers enjoy in the workplace. If so, the Court is surely on a slippery slope which will lead to the recognition of hostile environment claims under Title IX.
In LaShonda's case, the Court of Appeals cited statistics illustrating that 65% of students in grades eight to 11 claim to have been victims of student-to-student sexual harassment. Moreover, 59% of those students reported that they have committed sexual acts harassment in school. If these statistics are close to accurate, a ruling in favor of LaShonda could open the floodgates for these types of claims.
We expect a decision in June. If you would like us to notify you of the outcome, please let us know.