Six-Year-Old Harassers?

Article excerpt

Granted, G.F., as the Supreme Court calls him, was even more vulgar than many fifth-grade boys occasionally are. His sexual misbehavior, which continued for five months and eventually required him to plead guilty to sexual battery against his classmate LaShonda, was directed at others as well. It included, Justice Sandra Day O'Connor wrote last week, verbal affronts ("I want to feel your boobs"), groping and other crudities ("G.F. purportedly placed a doorstop in his pants and proceeded to act in a sexually suggestive manner").

But did a Georgia school's allegedly inadequate response to G.F. on LaShonda's behalf give her the right to sue the school district for violation of a 1972 federal law? The law says that no person "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 receiving federal funds.

In a 5-4 ruling, the court said yes. This case illustrates how law metastasizes from words by Congress, to rules from bureaucrats, to fiats from judges, to a torrent of litigation that will divert school districts' financial resources from educational functions and force schools into defensive silliness.

O'Connor (joined by Stevens, Souter, Ginsburg and Breyer) argued that the 1972 language applies to student-on-student sexual harassment when a school shows "deliberate indifference" to "severe, pervasive and objectively offensive" harassment of which the school has "actual knowledge." Proof of severity in this case was that LaShonda's grades suffered.

The kinds of discrimination that Congress clearly was worried about in 1972-- discriminatory admission standards or hiring, denial of access to programs-- could not be committed by students. So when O'Connor addressed the question of whether Congress had anything like student-on-student sexual harassment in mind in its 1972 language, her language became oblique: episodes of official indifference to peer sexual harassment are "realities that Congress could not have meant to be ignored." O'Connor, in a legislating mood, really means "should not."

Dissenting, Justice Kennedy (joined by Rehnquist, Scalia and Thomas) said that Congress said nothing about this, so states were not given clear notice of what was required of them. And Kennedy said that the court, by turning the 1972 language into "a Federal Student Civility Code," has justified "a corps of federal administrators in writing regulations on student harassment." But regulators have been hard at it for a while.

In autumn 1996 the Department of Education warned that schools might be held liable for peer sexual harassment. Kennedy says "it would appear to be no coincidence that" soon thereafter a North Carolina school suspended a 6-year-old boy for the sexual harassment of kissing a girl on the cheek. A week later a New York school suspended a second grader who kissed a classmate and ripped a button off her skirt, an idea the child said he got from his favorite book, "Corduroy," about a bear with a missing button.

The court's ruling about G.F. makes such overreactions more probable. But schools will find that such self-defense puts them in jeopardy under the Individuals With Disabilities Education Act of 1994. …