The Supreme Court ruling this week that public schools can be held liable if they "react with deliberate indifference" to known acts of sexual harassment was decided by just one vote.
Five of the justices agreed that individuals may sue for damages in cases of harassment that is "so severe, pervasive and objectively offensive that if effectively bars the victim's access to an education opportunity or benefit." Four of the justices dissented, arguing that "the real world of school discipline is a rough and tumble place where students practice newly learned vulgarities, erupt with anger, tease and embarrass each other, share offensive notes, flirt, push and shove in the halls, grab and offend..." and insisting that the Federal court system is no place to sort out what constitutes actual harassment.
The fact that the Court was sharply divided underscores how explosive this issue is. The fact that both of the courtÂ's female justices voted with the majority probably underscores how powerless many women feel when confronted with official tolerance of sexual discrimination, which is what harassment really is.
In this case LaShonda Davis, a fifth grader from Forsyth, Georgia, was groped and verbally assaulted by a classmate over a period of five months in 1992. The school allegedly ignored her complaints. Only when LaShondaÂ's mother went to the police did the boy plead guilty to sexual battery.
The decision brought me back to my own third grade hell. Every day, as I walked to school, the patrol boy on a corner I had to cross would grab my ponytail and twist it. He always made it seem like it was some sort of a joke, and that we were having fun, even if I cried, which I tried not to do in front of the other kids. There was an alternate route to school, but it was longer, up a steep hill and past some sketchy areas. At night I would lie awake, trying to decide which route to take, thinking if I just looked straight ahead, or tried to get lost in a group of other kids, the patrol boy (a sixth grader) wouldnÂ't notice me. For weeks I didnÂ't tell anyone, because I was afraid that I would get blamed for getting the patrol boy in trouble. When it finally got so bad I gave in and let my mother know what was going on, she immediately picked up the phone and called the boyÂ's mother. "He just likes your daughter," the other mother said. My mother and I thought that was a very unpleasant way to express it. But the patrol boy didnÂ't pull my hair after that.
Poor La Shonda probably went through the same agony, afraid to tll, afraid not to tell. But imagine how she felt when she finally came forward and her teachers did nothing?
Despite dire warnings from the dissenting justices and some school officials, it seems unlikely that the courtÂ's decision in Davis v. Monroe County Board of Education will unleash a tidal wave of suits against schools. The majority clearly states that "....damages are not available for simple acts of teasing and name-calling among school children." But it does seem likely that the ruling will serve as a warning signal to school districts everywhere. Students and staff should be educated to know that harassing conduct is unacceptable and will be punished. And despite the minorityÂ's lighthearted dismissal of "grabbing and offending," IÂ'm here to tell you that the one who is grabbed and offended does not consider such conduct amusing.
Both Justice Sandra Day OÂ'Connor and Justice Ruth Bader Ginsburg faced discrimination when they tried to apply for jobs after law school at a time before employment discrimination was illegal. Both understand how demeaning and demoralizing it is to realize that there is no official recourse if you are intentionally wronged. Obviously this is not just a female point of view, because three male Justices--John Paul Stevens, David Souter and Steven Breyer--signed onto the majority opinion. This is a case that is really about the rights of every student to go to class without being assaulted or humiliated. ItÂ's a case about freedom.