Sex and the School Girl

Kimberly Schuld*

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 wouldn’t 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 Education’s 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/victim’s perception of ‘unwelcomed’ sexual behavior."

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 commission.

Additionally, the internal procedures established by many schools to fulfill their Title IX obligation—especially those of colleges and universities—violate 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 NEA’s 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 didn’t want to go out with him. The example continues, "If he hadn’t quit asking me out, I knew just who to report it to." So now, geeks in glasses who make clumsy passes are harassers?

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 OCR’s "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 school’s 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 student’s 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 Women’s 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 Women’s Forum, a public policy organization in Washington, DC.


2001 The Federalist Society