By MARCIA D. GREENBERGER and VERNA L. WILLIAMS
[W] ASHINGTON -- When is a victim of sexual harassment
not a victim of sexual harassment?
When the victim is a student, according to several
decisions this term by the Supreme Court. Indeed, the
Court's decisions inadvertently created two classes of
citizens: employees, who are protected from sexual
harassment, and students, who are not.
In a victory for employees, the Court, in a pair of
7-to-2 decisions, ruled that employers could be held
financially responsible when supervisors sexually
harassed workers, whether or not the employer actually
knew about the harassment.
Indeed, the Court ruled that under Title VII, the
Federal law prohibiting workplace discrimination, an
employee who resisted a supervisor's advances need not
have suffered any kind of tangible loss, like dismissal
or loss of a promotion, to be able to file a lawsuit
against her company. Instead, when the harassment does
not result in any loss, but causes emotional distress or
other injury, then the employer must show that it had
strong policies and procedures in place, that employees
were informed about these policies and that the employee
had unreasonably failed to use it.
Under this sound decision, if a teacher harasses an
assistant, and the school system fails to respond, then
it can be held liable.
But what happens to a student harassed by a teacher? In
Gebser v. Lago Vista Independent School District, the
Court ruled in a 5-to-4 decision that schools do not have
to pay damages for teacher-to-student harassment unless
top officials specifically knew about the misconduct and
responded with "deliberate indifference." It does not
matter whether the school system had any policies or
procedures in place or whether it did anything at all to
combat harassment.
This decision creates an incentive for school officials
to turn their backs on harassment -- even in its most
severe, egregious and harmful forms. Officials need only
insulate themselves from being informed and claim
ignorance.
Why would the Court make this distinction between
students and employees? Students fall under Title IX,
the Federal law that prohibits sex discrimination in
education. Title IX, unlike Title VII, has no specific
language allowing students to sue and win damages from
lawsuits -- even though the Court had previously ruled
that Congress did intend such remedies.
The majority instead said that students were covered by
another remedy under Title IX: schools can be sanctioned
by the Education Department, which is authorized to
investigate sexual harassment complaints and, if
justified, to terminate Federal financing if a school
persists in allowing such harassment.
Thanks to the Education Department's efforts, many
schools have come into compliance with Title IX. But
this cannot be the only remedy. The Government has
limited resources and many civil rights obligations
extending far beyond harassment. It cannot possibly
pursue every harassment complaint. And even if the
Government does investigate a complaint -- and a school
enacts procedures to insure that complaints are
addressed promptly -- that does little to compensate a
student for the injury she suffered.
Now, the Government's job might even be harder, since
the Court's decision has created a financial incentive
for schools to hide harassment. Many schools will wait
to be caught before coming into compliance with the law.
The Supreme Court has ruled, and now Congress must step
in. Working with the Clinton Administration, it should
expand Title IX and explicitly allow students who have
been harassed to sue their schools and to win damages.
Justice requires no less.
Marcia D. Greenberger is co-president and Verna L. Williams is senior
counsel at the National Women's Law Center.