Negotiating the waters of sexual harassment is something akin
to scuba diving near Kemah, Texas. The water is so murky with silt
churned up from the shallow bay that you wouldnt be able to
see anything until you practically bumped into it. This is especially
true in the waters of "hostile environment."
With the help of feminist special interest groups, the Department
of Educations Office of Civil Rights, or OCR, has taken great
liberties in attempting to change the entire culture of schools
through descriptions of "hostile environment." Sexual
harassment policies governing educational institutions give a definition
to, and create a liability for, behavior that often amounts to the
bumblings of pre-adolescents and adolescents who are trying to figure
out how people of the opposite sex relate to each other.
The OCR got into the sexual harassment game after the 1972 passage
of Title IX of the Education Amendments which prohibits sex discrimination
in schools receiving federal funds. This statue is modeled
after the 1964 Civil Rights Act, which prohibits race discrimination.
Title IX is enforced through the OCR, and although it has never
done so, has the authority to withhold federal funds from non-compliant
schools. When sexual harassment was declared to be a form of sex
discrimination in the workplace, it followed that the OCR would
create standards for educational settings. Sexual harassment policy
under Title IX is premised on the idea that schools have an obligation
to provide a safe learning environment for all students, and therefore
must make a preemptive strike at potential harassers. Hostile environment
is the weapon most commonly used for making that strike, but oftentimes
it is like using a baseball bat to kill a fire ant.
The OCR receives a great deal of assistance and advice in the area
of sexual harassment from the cottage industry that keeps the Department
of Education (DOE) in business. One example of "outside"
help is "Flirting or Hurting?", a guide to sexual harassment
for schools and parents printed in 1997 by the National Education
Association (NEA) with a grant from the DOE. The authors, Nan Stein
and Lisa Sjostrom of the Wellesley College Center for Research on
Women (a regular recipient of DOE research grants), made it clear
that there is no such thing as a misguided claim of sexual harassment
in our schools. As the Washington Times editorialized, "One
might think that the job of teachers and counselors is to help confused
students distinguish between unsavory, sexually intimidating behavior
and innocent actions or garden-variety rudeness." But the "Background
Teaching Notes" of the booklet state: "All legal definitions
of sexual harassment enable the recipient (i.e. target/victim) of
the behaviors to define whether the attention is unwanted and unwelcome.
The presence or absence of sexual harassment thus depends on the
target/victims perception of unwelcomed sexual
One key difference between sexual harassment in schools and sexual
harassment in the workplace is that there is little credence given
to due process under Title IX sexual harassment. By regulation,
schools are required to establish their own administrative procedures
for handling incidents, but nothing in that process precludes a
complainant from going to federal district court first. This is
unlike the process in employment related sexual harassment where
a complaining party first must file a charge of discrimination with
the Equal Employment Opportunity Commission or a state human rights
Additionally, the internal procedures established by many schools
to fulfill their Title IX obligationespecially those of colleges
and universitiesviolate the right of the accused to equal
protection and due process because they presume that the accuser
is telling the truth. At an annual conference on sexual harassment
last October, representatives from the OCR responded to a direct
question on the rights of the accused by stating that under Title
IX due process takes a backseat to the subjective interpretation
of events as related by the complainant.
The OCR has adopted the NEAs loose interpretation of hostile
environment. In its March 1997 policy guidance on sexual harassment,
OCR provides examples written in the voice of a female student.
In one example, a guy in her chemistry class kept asking her out,
but she didnt want to go out with him. The example continues,
"If he hadnt quit asking me out, I knew just who to report
it to." So now, geeks in glasses who make clumsy passes are
Before you laugh, remember back to the fall of 1996. In North Carolina,
six-year-old Johnathan Prevette was punished by his school principal
for kissing a girl on the cheek. The school defended itself by saying
that "unwelcome is unwelcome at any age" and the talk
shows had a field day. But in the context of the OCRs "working
definition" of hostile environment, and in light of the gender
equity materials being sent to schools courtesy of DOE grants, the
school may have thought that it was acting appropriately to ward
off a potential lawsuit.
In 1992, the Supreme Court provided for a financial remedy in Title
IX cases in its Franklin v. Gwinnett County Public Schools ruling.
Since then, Title IX suits have almost always sought damages, and
have forced many school districts to agree to settlements in cases
that would have been on tremulous ground in the courtroom. The issue
of financial liability reached the Supreme Court last year in Gebser
v. Lago Vista School District, and again this year in Davis v. Monroe
County School Board. In both cases, the school district was being
sued for creating a hostile environment where the sex involved was
of a criminal nature, and happened outside the schools control.
The basic question in any sexual harassment case ought to be: Has
someone been treated differently and worse because of his or her
sex? As the courts and regulators look at Title IX sexual harassment,
the issue of a students sex and whether that student was in
some way discriminated against because of their sex, appears to
be missing. The presumption is that girls will always be victims
of harassment simply due to their sex.
Title IX protects the girl in shop class whose projects are sabotaged
because she is a girl. The law does not protect the awkward young
man who bumbles his way through the mysteries of the opposite sex
and is accused of being more than awkward. Today, the boys are likened
to criminals and the girls are told that failing to report them
is itself a "violation of the sisterhood."
The National Womens Law Center, a Washington-based special
interest law group that litigated both Gebser and Davis, is hoping
that the Supreme Court will uphold their position in Davis that
peer-on-peer harassment creates a hostile environment. No more "boys
will be boys" followed by lessons on basic civility. All male
students behavior must be examined. Given the recent actions
of the Supreme Court, the waters of hostile environment sexual harassment
policy will likely become more clouded both at school and at work.
*Kimberly Schuld is the Special Projects Manager for the Independent
Womens Forum, a public policy organization in Washington,