LaShonda, a fifth grader in a public
school, was subjected to sexual harassment by a male classmate for many months.
The boy attempted to touch LaShonda in a sexual manner, actually did so on at
least one occasion, and repeatedly directed explicit sexual propositions toward
her. After each incident, LaShonda complained to the supervising teacher. Eventually,
three different teachers and the principal had been informed of the problem,
but school officials took no disciplinary action against the boy, whose mistreatment
of LaShonda continued until he finally pleaded guilty to sexual battery. By
that time, LaShonda's previously high grades had dropped, she was unable to
concentrate on her work, and she had written a suicide note.
LaShonda's
mother sued the school board and other school officials under Title IX of the
Education Amendments of 1972, which provides that a student may not 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."
Title IX is better known as the basis for providing equal educational and athletic
programs for female students, but the U.S. Supreme Court used LaShonda's case
to hold that Title IX can be the basis for a damages suit against school officials
in cases of student‑on‑student sexual harassment.
LaShonda
had a strong set of facts to support her claim, and the Court was careful to
indicate that many less egregious situations could lead to a very different
outcome. In the Court's words, Aa constellation of surrounding circumstances,
expectations, and relationships@ determines whether gender‑oriented conduct
by one student toward another will amount to Aharassment@ that will support
a Title IX lawsuit. Some basic considerations are the ages of the harasser and
the victim and the number of individuals involved.
Students
who are still learning how to interact appropriately with their peers often
engage in insults, banter, teasing, shoving, pushing, and gender‑oriented
conduct that upsets the students on the receiving end, but simple acts of teasing
and name‑calling will not lead to a damages award under Title IX. The
behavior must be so severe, pervasive, and clearly offensive that it denies
the victim equal access to education. The Court also observed that it is highly
unlikely that any one instance of one‑on‑one peer harassment will
support a claim, and that peer harassment is less likely to violate Title IX's
guarantee of equal access to educational benefits than is harassment of a student
by a teacher.
Even
the most outrageous harassment of one student by another will not lead to Title
IX liability of school officials unless it occurs in a setting over which they
have substantial control and in which they fail badly in fulfilling their duties.
The officials must have actual knowledge of the harassment and show deliberate
indifference to it. School administrators will still enjoy flexibility in dealing
with peer harassment, and they will be exposed to Title IX damages liability
only if their response is clearly unreasonable.
