It has been established that an employer can be held responsible for an employee's sexual harassment by a supervisor or coworker, but what about in the context of school? Peer sexual harassment in a classroom environment was the subect of Davis v. Monroe County Board of Education. The Supreme Court held that a school district can be liable under Title IX of the Education Amendments of 1972 for monetary damages resulting from peer sexual harassment if:
- the school district is deliberately indifferent to sexual harassment allegations,
- of which it has actual knowledge,
- that is so severe, pervasive, and objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the school.
Whether the conduct is actionable depends on a "constellation of surrounding circumstances, expectations, and relationships." Damages are not available for "simple acts of teasing and name calling" among children, even when the comments target differences in gender.
Davis v. Monroe
Davis v. Monroe County Board of Education involves a claim that a school failed to take any action concerning repeated complaints to teachers and the principal about a fifth grade student who allegedly engaged in acts of sexual harassment consisting of verbal comments and offensive touching that occurred over a 5-month period. The victim alleged that her high grades dropped, she wrote a suicide note and commented to her mother that she did not know how much longer she could keep the harasser off her.
The Supreme Court found that under Title IX the school was liable on account of its deliberate indifference to its student's plight, its actual knowledge of the harassment, and the severity of the harassment at issue, overturning the lower court's ruling that Title IX provides no ground for a private cause of action for damages.
Dissenting Opinion
Four justices joined in a highly critical dissenting opinion. "The majority's opinion purports to be narrow, but the limiting principles it proposes are illusory. The fence that the Court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion. The potential costs to our schools of today's decision are difficult to estimate, but they are so great that it is most unlikely Congress intended to inflict them." The dissenters questioned the wisdom of judging the "objective offensiveness" of a comment by reference to a reasonable child. "Not only is that standard likely to be quite expansive, it also gives schools-and juries-little guidance, requiring them to attempt to gauge the sensitivities of, for instance, the average seven year old." Citing discipline procedures applicable to disabled students, the dissenters acknowledged the dilemma of subjecting schools to conflicting statutory obligations.
Preventative Action
Regardless of the dissent's opinion schools may now be subjected to liability for sexual harassment within their student populations. As such, school districts should develop and implement a peer sexual harassment policy that assures complaints will be properly directed, investigated, and responded to promptly and reasonably. Districts should also inquire as to whether they have insurance coverage for this type of claim. Finally, any concerns you may have about the impact of the decision should be conveyed to your congressperson.
*article courtesy of Robert A. Muccilli, Esq., a member of Capehart & Scatchard's Employer Relations and Environmental Department.