Academic journal article Missouri Law Review

A Cause of Action for Student-on-Student Sexual Harassment under the Missouri Human Rights Act

Academic journal article Missouri Law Review

A Cause of Action for Student-on-Student Sexual Harassment under the Missouri Human Rights Act

Article excerpt

Doe ex rel. Subia v. Kansas City, Missouri School District, 372 S.W.3d 43 (Mo. App. W.D. 2012)

I. INTRODUCTION

School districts have an obligation "to protect children in their charge from foreseeable dangers," and a school district's "first imperative must be to do no harm to the children in its care." (1) It seems there would be no argument against guaranteeing students an education free of peer sexual harassment, but there is controversy when determining how much obligation a school district has in ensuring such a guarantee. In Doe ex rel. Subia v. Kansas City, Missouri School District, the Missouri Court of Appeals for the Western District found that Missouri's schools districts have a responsibility under the Missouri Human Rights Act (MHRA) to protect students from peer sexual harassment. (2)

Before Doe, in order to guarantee that students would not be sexually harassed in a way that would deprive them of their access to public education, legislation like Title IX was used as a vehicle for state and federal courts to provide redress to students who had been victims of peer sexual harassment. (3) However, imposing liability on school districts is controversial because school districts do not have complete control over the behavior of students. (4) When the Supreme Court of the United States allowed a cause of action against public school districts for student-on-student sexual harassment under Title IX, Justice Kennedy stated in his dissent, "the fence the Court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion." (5)

Missouri public schools are familiar with harassment and bullying among students. (6) The state legislature attempted to address this issue in 2007 when it passed a state statute that would require every school district to adopt an anti-bullying policy. (7) The state courts are the latest to join in the battle to end harassment in schools, specifically student-on-student sexual harassment, but the courts operated under a different statute than Title XI: the Missouri Human Rights Act.

Claims for peer sexual harassment in the workplace are commonly filed under the MHRA, but a claim against a public school district had never been decided in Missouri until 2012. (8) The notion of a public school district being liable for peer sexual harassment is controversial. Most claims have been filed under Title IX (9) and few have been filed under state civil rights laws. (10) Under Title IX, the Supreme Court of the United States has held that a public school district is liable if it acted with "deliberate indifference to known acts of harassment[.]" (11)

The Missouri Court of Appeals for the Western District is the first to decide whether a public school district can be liable under the MHRA. (12) In doing so, the court has imposed a lower standard of liability than Title IX's actual knowledge standard with the purpose of broadening the reach and protection of the MHRA. (13)

This Note argues that a cause of action under the MHRA is problematic because it misapplies the law with respect to public schools, creating limitless liability against school districts. The cost of damages and legal fees could overwhelm many of Missouri's school districts, taking taxpayer money from funding education and putting it in the pockets of attorneys and plaintiffs.

II. FACTS AND HOLDING

Doe was a male elementary school student in the Kansas City, Missouri School District (School District). (14) Doe alleged that another male student sexually harassed him on multiple occasions beginning in May 2009. (15) Doe claimed the perpetrator would climb under the stalls in the boys' restroom to commit the sexual harassment. (16) Doe further alleged that even though school administrators and teachers responsible for the perpetrator had knowledge of the behavior, "school personnel permitted the perpetrator to use the restroom at the same time as other male students. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.