Girl may sue school for harassment by classmates, Seventh Circuit rules.

An Illinois girl who was sexually harassed at school by fellow students may sue school authorities under Title IX of the Civil Rights Act for their failure to respond adequately to the mistreatment, the Seventh Circuit Court of Appeals has ruled.

But the three-judge panel said the teenager must prove that the school had actual knowledge that the harassment was occurring. (Doe v. University of Illinois, No. 96-3511, 1998 WL 88341 (7th Cir. Mar. 3, 1998).)

The decision is the most recent in a confusing string of federal appellate rulings addressing the issue of sexual harassment in schools by teachers, by employees, and, more recently, by students. At least three other federal circuit courts have issued decisions in peer harassment cases, reaching different conclusions about what triggers school liability.

In the Illinois case, a student--identified only as Jane Doe--who attended University High School in Urbana, an affiliate of the University of Illinois, alleged that school officials failed to act sufficiently against boys who verbally and physically harassed her during two school years. Although two of the boys were suspended for 10 days and one was transferred out of the girl's biology class, she claimed that school administrators blamed her for the harassment and advised her to change her behavior to stop it.

She sued in 1995, and the next year the district court threw out her case. The judge ruled Doe had not alleged that the school, by failing to take stronger action against the boys, had intentionally discriminated against her based on sex in violation of Title IX. The court said the school could not be held liable unless Doe could prove that it punished sexual harassment against girls less severely than it punished sexual harassment against boys.

A few days after the district court's ruling, the Fifth Circuit adopted the same reasoning in a separate peer harassment case. (Rowinsky v. Bryan Independent School District, 80 F.3d 1006 (5th Cir. 1996).)

The Seventh Circuit rejected this interpretation of Title IX, saying it "misunderstands sexual harassment itself."

"[O]ccasional exceptions do not alter the rule that sexual harassment is an evil that affects mostly women and girls," Judge Walter Cummings wrote for the federal appellate court.

"For this reason, it must be exceedingly rare that a school receives any complaints of sexual harassment from its male students. The Fifth Circuit's rule would leave schools completely free to ignore the more frequent complaints of sexual harassment from girls, while imposing only the minimal cost that such schools would be required likewise to ignore any complaints they might receive from their male students," Cummings wrote.

Cummings said a school's failure to take appropriate steps to end known sexual harassment "is itself intentional discrimination on the basis of sex" and can be remedied under Title IX.

However, the court rejected the view advocated by Doe and endorsed by at least one other federal appeals court that schools may be held liable when they knew or should have known of student-on-student harassment. The panel held that the school must have actual knowledge of the conduct before it can be sued.

The actual knowledge standard "will prevent schools from being blindsided by liability based upon events that officials did not even know were taking place," Cummings wrote. He added that the requirement does not burden plaintiffs too heavily: "All that is required is that they report the alleged harassment to responsible school officials, thus giving the school a chance to respond before it is hauled into court."

Last year, the Fourth Circuit ruled that a peer harassment case could go forward without a showing that school officials actually knew of the students' misconduct. The "should have known," or constructive knowledge, standard was enough, that court ruled. (Brzonkala v. Virginia Polytechnic Institute and State University, 132 E 3d 949 (4th Cir. 1997).)

Sheryl Jaffee Halpern, a Chicago attorney who represents the Illinois girl, noted that the U.S. Department of Education has issued guidelines on sexual harassment in schools that advocate holding school districts liable when officials knew or should have known of the problem.

"Once an administrative agency charged with enforcement or a statute issues guidelines on the statute, that agency's opinion should be given a great deal of deference," Halpern said. She said the law is in disarray because courts have adopted their own standards rather than following the agency's guidelines.

"I think this is an issue that will ultimately have to be decided by the Supreme Court," Halpern said.

The Court heard arguments March 25 in a case involving harassment of a student by a teacher. (Gebser v. Lago Vista Independent School District (No. 96-1866).) A petition for review in a peer harassment case is pending. (Davis v. Monroe County Board of Education, 120 F.3d 1390 (11th Cir. 1997), petition for cert. filed, 66 U.S.L.W. 3387 (U.S. Nov. 19, 1997) (No. 97-843).)