Beyond horseplay: students sue schools over sexual harassment.

For nearly two years, a student at Kenilworth Junior High in Petaluma, California, endured the taunts and barbs of her classmates. A single alleged comment from two boys--"I hear you have a hot dog in your pants"--led to months of sexual jokes, gossip, and physical threats directed at the student by schoolmates, both boys and girls.

The student, identified publicly only as Jane Doe, claims the abuse went beyond run-of-the-mill playground cruelty. Eventually, the girl transferred to a private school. Then she went to court.

She and her parents seek to hold the Petaluma school district liable for failing to deal adequately with her schoolmates' behavior. Their specific claim: Sexual harassment by the girl's peers at Kenilworth created a hostile environment and violated Title IX, the law that prohibits sex discrimination in schools that receive federal funds.

Last August, Jane Doe's case produced the only court ruling to date on whether school districts can be held liable for sexual harassment among students. Although the judge held that the girl's hostile environment claim could be brought under Title IX, he said she cannot win damages unless she proves the school district intentionally discriminated against her on the basis of sex. (Doe v. Petaluma City School District, 830 F. Supp. 1560 (N.D. Cal. 1993).)

At least four similar suits have been filed in other states in the past two years, prompted by a 1992 U.S. Supreme Court decision holding that students can sue for damages under Title IX. (Franklin v. Gwinnett County Public Schools, 112 S. Ct. 1028 (1992).) Attorneys for the students say the legal principles governing sexual harassment in the workplace--including the notion that employers can be held liable when they knew or should have known that one employee was harassing another--ought to apply in the school setting as well.

"What we're helping with is creating new law," said Helen Neuborne, executive director of the NOW Legal Defense and Education Fund (LDEF), which is serving as co-counsel in the Petaluma case. "Teachers have a responsibility to ensure that students are treated equally. If boys were standing in doorways blocking girls from coming into science classes, the teacher would do something about it."

But lawyers representing school districts draw a distinction between educational responsibility and legal liability. "My client understands its obligation to sustain a harassment-free environment. That is different from being required to pay money damages," said Larry Frierson, a Los Angeles attorney who represents the Petaluma district. "The question is whether the financial resources of the school district should be paid out because one student harasses another."

Frierson disputes the plaintiff's version of events at Kenilworth, claiming that school authorities became aware of the harassment much later than the girl alleges. When officials were notified, he said, they took "textbook action" by suspending several boys, making them apologize to the girl in writing, and giving them sexual harassment counseling.

"What they did is exactly what a school district should have done," Frierson said.

Once shrugged off as harmless teasing or flirting, sexual harassment among students has become a serious issue in school districts, especially since studies emerged showing its prevalence in schools and its ill effects on students.

In a study released last year, the American Association of University Women reported that 85 percent of girls and 76 percent of boys have experienced sexual harassment at school. Most incidents occur between students and out in the open, usually in hallways and classrooms, the study found. (American Ass'n Univ. Women, Hostile Hallways (1993).)

Almost half of the 4,200 girls who responded to a survey published in Seventeen magazine said that no action was taken against the harasser even when they reported incidents to teachers or administrators. Only 8 percent said their schools had developed and enforced a sexual harassment policy. (Nan Stein et al., Wellesley College Ctr. for Research on Women, Secrets in Public: Sexual Harassment in Our Schools (1993).)

Student complaints to the U.S. Department of Education have risen dramatically in recent years, resulting in a growing number of agency investigations into the ways school districts handle sexual harassment. In 1988, the department's Office for Civil Rights (OCR) received 27 complaints and found 4 Title IX violations. Last year, the office received 156 complaints and found 19 violations through October; almost half the cases were pending.

"An environment that is polluted with sexual harassment is not supportive of equal education," said Jeanette Lim, the OCR's director of policy, enforcement, and program service. The agency has defined sexual harassment as sex discrimination since 1981, she said, but whether a school district has violated Title IX depends on how school officials responded to harassment complaints.

Lim said every school district should have a policy statement on sexual harassment and procedures that victims can use to file complaints. Perpetrators should be punished, and teachers should receive training so they can advise students who report incidents to them.

At least two states--California and Minnesota--have enacted laws requiring school districts to develop sexual harassment policies.

Response to Complaints

School response is at the heart of the student lawsuits. In Bryan, Texas, the Bryan Independent School District faces two suits by girls who claim school officials failed to act against boys who grabbed their breasts and genitals and called them obscene names.

In both cases, the girls were punished more severely for fighting back with kicks and slaps than the boys were for the repeated physical assaults and verbal abuse, according to the complaints. (J.W. v. Bryan Independent School District, No. 93-3790 (S.D. Tex. amended complaint filed Apr. 4, 1994); Rowinsky v. Bryan Independent School District, No. H 93 3578 (S.D. Tex. filed Nov. 9, 1993).)

"There is a pervasive pattern of sexual harassment that the district has refused to deal with," said James Harrington, legal director of the Austin-based Texas Civil Rights Project, which represents the girls. Although schools should not be held liable for isolated incidents, he said, "where [harassment] rises to the level of an ongoing problem, the school has a responsibility to take steps to eradicate it." Harrington said he expected to file a third suit against the district soon.

Jennifer Jacobs, a Houston attorney representing the school district, agreed that schools should punish students who behave inappropriately. But the hostile environment cases could open up a virtually unlimited area of liability if students are allowed to sue the school district every time they feel threatened or intimidated by other students, she said.

Students' lawyers dismiss the slipperyslope argument. "Title IX doesn't make schools liable for all kinds of behaviors that occur," said Maureen Murphy of New Haven, Connecticut, who represents students in two cases. Title IX specifically prohibits sex discrimination, she said, and doesn't cover behavior such as ordinary schoolyard fights.

Lawyers on both sides agree that until the courts develop a legal theory on sexual harassment in schools, numerous gray areas will remain. "What litigation will do is help develop guidelines [for schools] and help draw distinctions [between behaviors]," said Ruth Jones, a NOW LDEF attorney working on the California case. "That's why these first cases are incredibly important."

In the wake of the district court's ruling, Jane Doe's lawyers have filed an amended complaint alleging intentional sex discrimination by the school district. Eventually, they hope to persuade the court to adopt the Education Department's view that sex harassment is, by definition, sex discrimination, Jones said.

She stressed that part of her group's strategy is to help schools develop adequate policies and procedures for dealing with sexual harassment so litigation can be avoided. "The best response is a school-based response that happens quickly and fairly," she said. "Schools need to teach students about self-respect and conflict resolution, about what sexual harassment is and what the consequences are."

"Boys are going to be boys, but boys have to learn how to function as adult men," Harrington said. "They have to learn that there are certain kinds of conduct that are unacceptable."