No. 97-843

The Question Before the Court

Does Title IX cover peer sexual harassment and, if so, what is the standard of liability for school districts?

Background

Facts:

LaShonda Davis was a fifth-grade student at Hubbard Elementary School in Monroe County, Georgia during the 1992-1993 school year. Another fifth-grade student, G.F., while in the classroom of teacher Diane Fort, allegedly tried to touch LaShonda’s breasts and vaginal area. G.F. also allegedly made sexual comments to LaShonda, such as, “ I want to get in bed with you,” and “I want to feel your boobs.”

LaShonda complained to Fort and also told her mother, Aurelia Davis, about G.F.’s behavior. G.F. again engaged in similar conduct on two other occasions. LaShonda allegedly reported both incidents to Fort and her mother. After one of the incidents, Mrs. Davis called Fort who told her that the school principal, Bill Querry, knew about one of the incidents.

G.F.’s behavior continued. He allegedly placed a door-stop in his pants and behaved in a sexually suggestive manner toward LaShonda during their physical education class. LaShonda reported this incident and other subsequent incidents to Maples, the physical education teacher. LaShonda also told another teacher, Pippin, when G.F. sexually harassed her on other occasions. An unidentified teacher allegedly told LaShonda that Principal Querry was not ready to listen to her complaint about G.F. At some point, Fort reassigned LaShonda to a seat away from G.F., but G.F. continued his unwelcome sexual behavior. LaShonda and her mother visited Principal Querry to discuss G.F.’s behavior. At the meeting, Querry asked LaShonda why no other students had complained about G.F. and said that he would have to threaten G.F. a little harder. On the same day, G.F. was charged with sexual battery, which he did not deny.

In all, LaShonda accused G.F. of eight separate instances of sexual harassment, six of which occurred in Fort’s, Maples’ and Pippin’s classes. LaShonda reported four instances of sexual harassment to Fort, two to Maples and two to Pippin. She reported the final incident to her mother and Principal Querry. 

Lower Courts:

Aurelia Davis, on behalf of her daughter, LaShonda, sued the Monroe County Board of Education for the school officials’ failure to remedy G.F.’s sexual harassment of her daughter. The United States District Court for the Middle District of Georgia dismissed for failure to state a claim upon which relief could be granted. Davis appealed and a divided three judge panel of the United States Court of Appeals for the Eleventh Circuit reinstated the claim. Upon rehearing en banc, the Court of Appeals held that Title IX did not allow such a claim. Davis filed a petition for certiorari with the Supreme Court. The Supreme Court has not decided whether it will grant certiorari.

The Importance of this Case

A fifth grade student was sexually harassed for over six months at school by another student, culminating in a sexual battery for which her harasser pled guilty. School officials were aware of the situation, yet took no meaningful action to deter it. The lower courts’ opinions hold, in effect, that regardless of the severity of the harassment and the cognizance of teachers and other school officials, a school is under no obligation to prevent the harassment. This conclusion directly contradicts the spirit and purpose of Title IX.

Title IX provides that “[n]o person in the United States 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 or activity receiving Federal financial assistance.” A plain reading of the statute indicates that Title IX was intended to eliminate all types of sex discrimination.

Recent studies show that the vast majority (65-85%) of girls reported being sexually harassed in schools. Peer sexual harassment is the most common form of harassment students experience. Regardless of the identity of the perpetrator, sexual harassment causes real and demonstrable harm to students’ educational and social development. Sexually hostile environments reduce female students’ class participation and cause some students to drop out of classes entirely.

School officials are in a unique position to intervene as many instances of harassment occur in classrooms and other areas where students are supervised. The lower courts’ opinions, however, leave schools with no incentive to address the problem. Fear of liability would encourage schools to develop policies and procedures mandating intervention when problems arise. Experience shows that adequate training for teachers and other school personnel enables them to respond effectively to peer sexual harassment complaints, resulting in reduced sexual harassment in schools.

Without an incentive to stop peer sexual harassment or to create adequate policies to deal with the widespread problem of peer sexual harassment, schools will continue to ignore indicia of peer sexual harassment. If the Supreme Court does not act to reverse the lower courts’ wholesale rejection of Title IX’s applicability to peer sexual harassment cases, students will continue to suffer, as will their education.

Equal Rights Advocates’ Position

Girls and women will be unable to achieve their full potential if subjected to sexual harassment in their schools and places of work. Excluding peer sexual harassment from the spectrum of discriminatory conduct prohibited by Title IX ignores the harmful effects of peer sexual harassment and schools’ abilities to ameliorate the problem. In fact, the Department of Education’s Office for Civil Rights (“OCR”) recognizes schools’ obligations under Title IX to take immediate and appropriate steps to remedy known peer sexual harassment.

The OCR recognizes the wide range of responses schools can employ in peer sexual harassment cases. Contrary to the fears expressed by the lower courts, schools are not limited to the extremes of either completely failing to respond or causing immediate suspension or expulsion. Rather, the action a school takes will be sufficient so long as it ameliorates the problem. For example, in this case, school officials could have investigated the complaint, permitted LaShonda to change her seat so that she did not have to sit next to the alleged harasser for three months, or imposed progressive discipline.