IWF sponsored a panel discussion shortly after the Supreme Court’s 5-4 decision in Davis v. Monroe County Board of Education. This case will now enable students to sue their schools for unlimited monetary damages when they are “sexually harassed by a classmate.” Mrs. Davis sued the school board, the superintendent and the principal of her daughter’s school for a half-million dollars in damages in federal court under Title IX, after her daughter was persistently taunted by a male classmate.

IWF filed an amicus brief in the case, written by Jennifer Braceras, which was cited by Justice Kennedy in his dissent from the majority ruling in Mrs. Davis’ favor. These remarks at the IWF’s June 1999 panel explain how the court’s decision will affect the future of spitballs and handholding in our nation’s schools.

Jennifer C. Braceras

IWF National Advisory Board Member and author of the IWF Davis case amicus brief

The issue presented to the Supreme Court was straightforward. It was whether the legal concept of sexual harassment applies to the behavior of school children, and if so, whether students can hold their schools financially liable for peer sexual harassment.

In our brief, we argued that the behavior of the fifth-grade boy in this case was inappropriate and it was utterly unacceptable, but the school’s actions or inactions were not gender discrimination. Put another way: While all schools need strong rules against bullying and misconduct, the failure of a school to completely control the speech and behavior of every single member of the student body is not a violation of federal law, in particular, the federal laws against discrimination. And certainly it was not Congress’ intention in passing this statute to force teachers to have to regulate the behavior of children so closely that when they fail to prevent bad things from happening, they will end up in federal court.

We also argued that students who are victims of harassment by other students, whether it is sexual or just kids being mean, already have at their disposal a wide array of state administrative, civil and even criminal remedies that they can utilize to end harassment, punish the offender or seek compensation from the offender if necessary.

In addition, individuals who are physically injured by a student during school hours can sue their schools under state law, under the theory of negligent supervision. So if a child is beaten up by a group of kids at school in front of teachers who do nothing about it, he or she can sue the school for failure to supervise.

This type of discrimination case inappropriately elevates peer sexual harassment over other forms of misconduct such as girl-on-girl harassment, student-on-teacher harassment and gang violence, none of which give the victim a right to financial damages from the school in federal court.

The Davis decision was immediately hailed by feminist groups as a great victory for women. And within days of the decision coming down, the New York Times ran a glowing profile of Justice O?Connor praising the opinion and the justice’s “female voice.” O the other hand, the National Association of School Boards moved quickly to minimize the impact of the decision. Is the case such a great feminist victory, and do our nation?s schools have nothing to worry about? I think the answer to those questions is a resounding :no.”

Before this case reached the Supreme Court, there were a number of lower-court decisions that had held that schools could be sued for peer sexual harassment. In those school districts, schools reacted with draconian measures. Several schools across the country adopted policies that prohibited handholding, the passing of romantic notes and chasing members of the opposite sex at recess. And in a much-publicized case in North Carolina, one school went to far as to punish a six-year-old boy for kissing a girl on the cheek.

Now that school liability for peer harassment is the law of the land, there really isn’t any doubt in my mind that more and more schools will pass these measures to insulate themselves from liability. A school district in George is considering a policy that would require boys and girls on the school bus to sit on opposite sides of the aisle. Already we see the great feminist victory resulting in the segregation of the sexes and the imposition of neo-Victorian mores by school that are just terrified of million-dollar lawsuits.

Schools are going to have to set aside even greater portions of their budgets for litigation costs and sexual harassment workshops. I’m concerned about the message that the case sends children in our society — the way you resolve problems with your peers is to gear up the great legal mechanism of federal litigation. I think that sends a very bad message to the youth of this nation.