Six-Year-Old Harassers?

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. It, Kennedy notes, "places strict limits on the ability of schools to take disciplinary actions against students with behavior-disorder disabilities, even if the disability was not diagnosed prior to the incident triggering discipline." After all, "disability" as defined by the Act includes "serious emotional disturbance."

And the Department of Education has said that a "serious emotional disturbance" is a pronounced and protracted condition that involves an "inability to build or maintain satisfactory interpersonal relationships with peers and teachers." So, G.F. had a "disability." Lawyers for children like him can argue that any behavior that merits serious discipline must arise from a serious emotional disturbance. If G.F.'s school was slow to discipline him, could this be why?

Still, after last week's court ruling, schools are apt to adopt a better-safe-than-sorry policy regarding sexual harassment. A Minnesota teachers' manual suggests that sexual harassment in kindergarten--no kidding--can involve a boy's being "put down" on the playground "because he wants to play house with the girls" or a girl's being "put down because she shoots baskets better than the boys." Another manual says blowing a kiss could be problematic, and "you look nice" could constitute sexual harassment, depending on the child's "tone of voice," how the speaker looks at the child spoken to and "who else is around."

In a similar spirit, a 1993 study by the American Association of University Women purported to find that "fully 4 out of 5 students (81%) report that they have been the target of some form of sexual harassment during their school lives." That study was hysteria-mongering by "victimization feminists" wielding ludicrous definitions of sexual harassment. But such spurious factoids will now find their way into litigation from coast to coast.

Kennedy warns, "A female plaintiff who pleads only that a boy called her offensive names, that she told a teacher, that the teacher's response was unreasonable, and that her school performance suffered as a result, appears to state a successful claim." And a "reasonableness" standard "transforms every disciplinary decision into a jury question."

How many millions of adolescents each year can claim, as LaShonda did, that their grades declined and their "ability to concentrate on... school work [was] affected" by normal adolescent stresses elevated to the status of sexual harassment? Kennedy warns that just one school's liability in even one peer sexual-harassment suit "could approach, or even exceed, the total federal funding of many school districts."

LaShonda, who filed her suit in 1994, is seeking $500,000 from her school district, which, remember, is vulnerable because it receives federal funds. In the 1992-93 school year, the district's federal aid was approximately $679,000.