Justice Anthony Kennedy may have been exaggerating last month, but he wasn't exaggerating much. The Supreme Court's 5-4 decision in the school harassment case was as bad as he described it. The court contrived a terrible piece of jurisprudence. Teachers and principals will have a terrible time living with it.
The story dates from December 1992. At an elementary school in Monroe County, Ga., a girl in the fifth grade, LaShonda Davis, complained that a boy was sexually harassing her. She charged that G.F. attempted to touch her breasts and genital area, and made vulgar statements such as "I want to get in bed with you."The misconduct continued over a period of five months. The girl complained repeatedly to her teachers and to the principal, but nothing of consequence was done about it. Her grades fell off. She wrote a suicide note. The string of unpleasant incidents finally ended when the boy pleaded guilty to a criminal charge of sexual battery.
LaShonda's mother sued the local school board for $500,000 in damages. She lost in the lower courts on the board's motion to dismiss, but on May 24 the Supreme Court reinstated her suit. It will now be up to a jury to determine if the child's allegations justify an award.
Justice Sandra Day O'Connor, writing for the majority, attempted repeatedly to allay the concerns of school administrators. They will be held liable for damages, she said, "only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."
Damages are not available, O'Connor added, "for simple acts of teasing and name-calling among school children, even where these comments target differences in gender."
These reassurances were wasted on the four dissenters (Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas). Kennedy scorned the limiting guidelines as illusory: "The fence the court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion."
Kennedy said the number of potential lawsuits engendered by O'Connor's opinion is staggering. The cost of defending peer-on-peer allegations could overwhelm many school districts. Schools may well be beset with litigation from every side: "One student's demand for a quick response to her harassment complaint will conflict with the alleged harasser's demand for due process."
Justice Kennedy may overstate the fiscal consequences of the majority's opinion. Justice O'Connor's "little sticks" sound like pretty good planks to me. Unless teachers and principals are absolute blockheads, henceforth they will respond vigorously to a pupil's complaint of sexual harassment. Many suits may be filed, but few will result in substantial awards of damages. Local jurors will not look kindly on giving away local money.
By far the greater damage will be done in less tangible areas. "In the final analysis," said Justice Kennedy, "this case is about federalism." And indeed it is. Public education historically is a responsibility of the states. With Justice O'Connor's opinion, a huge area of tort law now devolves upon the federal courts.
True, the federal courts have been heavily involved in public schools for the past 45 years, but the desegregation cases were fundamentally different. There we were dealing with constitutional issues -- with the command that states may not deny equal protection of the law to any persons within their jurisdiction.
Universal Press Syndicate