Circuit courts split on peer harassment in schools.

The Eleventh and Fifth circuits have disagreed in cases concerning student-on-student sexual harassment in public schools. The conflicting rulings make it likely the issue will go to the U.S. Supreme Court for resolution.

Both cases involve whether girls who were sexually harassed by boys could sue school authorities under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational programs that receive federal funding. (20 U.S.C. [sections]1681.)

The Eleventh Circuit decision came down first. It involved a female fifth-grader who claimed a male classmate made sexually offensive comments and fondled her on several occasions. The girl and her mother reportedly notified the teacher and school principal after most of the incidents. (Davis v. Monroe County Board of Education, 74 F.3d 1186 (11th Cir. 1996).

The mother--on the girl's behalf--sued the principal, school board, and superintendent under Title IX. She alleged that they knew about the harassment but failed to take any meaningful action to stop it.

The Eleventh Circuit, likening Title IX provisions to those of Title VII of the Civil Rights Act of 1964 (42 U.S.C. [sections]2000e), found that a school district can be sued just like an employer if it allows a "hostile environment" to go unchecked. liability under Tide VII hinges, in part, on whether an employer "should have known" that a hostile environment existed.

In April, the Fifth Circuit ruled differently. It refused to apply Title VII's hostile environment provisions to Title IX. (Rowinsky v. Bryan Independent School District, No. 95-20049, WL 153985 (5th Cir. 1996).

In that case, two eighth-grade girls claimed they were repeatedly sexually harassed by two classmates on the school bus. The girls--who are sisters--said the boys fondled them and made sexually offensive comments. The sisters reported the incidents to their mother, who allegedly spoke with the principal and school administrators a number of times. Although one boy was eventually suspended for several days and the bus driver was fired, the harassment continued. The mother finally sued on behalf of her daughters, claiming Title IX protection.

The Fifth Circuit reiterated that Title IX applies only to discrimination by federal grant recipients. But a school-district, it said, cannot be sued unless the school's officials themselves. are the ones discriminating. The mere existence of harassment does not constitute discrimination, the court found.

The court did say, however, that a school district could be liable if it responded to peer harassment claims differently on the basis of sex, such as treating sexual harassment of boys more seriously than that of girls.

Sylvia Cedillo of the Texas Civil Rights Project, which acted as counsel for the plaintiff in the Fifth Circuit case, said her organization will help file a petition for certiorari with the Supreme Court. She is not surprised that the Fifth Circuit's riding diverged from the Eleventh Circuit's, but she is hopeful that the Supreme Court "will see the erroneous ruling for what it is--a judicial tap dance on the issue of sexual harassment--specially in light of prior Supreme Court rulings that said Title IX is to be accorded a sweep as broad as its language."