This is a response to Linda Purrington's question about what are the
most important aspects of the emerging case law on sexual harassment
in schools.
As outlined in my opening statement, the Supreme Court's decision last
June in Gebser created a new standard for assessing schools' liability
for teacher-to-student sexual harassment. Schools are financially
liable for such harassment if a school official with the authority to
take corrective action knew about the harassment and acted with
deliberate indifference. Stripping away all the legalese, the
important questions boil down to:
1. Who in the school district must know about the harassment? (e.g.,
does a teacher, Title IX coordinator, principal, school board member,
superintendent, etc. have the authority to take corrective action?)
2. how must the school official know? (e.g., must the official
receive a formal complaint? what if the school official sees the
harassment?)
3. how did the school respond to the harassment once it knew about
it? The easy cases involve the extremes. On the one hand, schools
that do nothing probably are "deliberately indifferent." On the other
hand, schools that take steps and actually resolve the situation
probably are not "deliberately indifferent." The hard part is to
assess the gray area in between.
The biggest challenge for me, as a litigator, is to figure out how
these legal standards play out day-to-day in schools. I would like
very much to hear from list members about the practical impact of the
Gebser standard. What impact, if any, has it had on efforts to
address the problem of sexual harassment in schools in a proactive
way? Has word gotten out that students must let schools know about
sexual harassment by a teacher before financial liability against the
school could be imposed? Given that Supreme Court rulings set forth
broad parameters, leaving many questions unanswered, are schools
relying on the OCR's 1997 policy guidance for more detailed guidance?
One more important thing to keep in mind is that Gebser applies only
to claims for monetary damages. In other words, students asking for a
court order that a school institute a policy or take action to respond
to a specific sexual harassment situation may be entitled to relief
under a lesser standard.
I look forward to "talking" with list members about Gebser, the
upcoming peer sexual harassment case, Davis, or any other aspect of
sexual harassment law.
Thanks.
Yolanda Wu
NOW LDEF staff attorney
ywu@nowldef.org
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