Confronting same-sex, student-to-student sexual harassment: recommendations for educators and policy makers.

• Author: Mayes, Thomas A.

Student-on-student sexual harassment has been the subject of significant scholarly commentary and numerous court battles. (1) In light of the United States Supreme Court's decision in Davis v. Monroe County Board of Education, (2) which held that in certain cases students have a cause of action under Title IX against schools for peer sexual harassment, (3) many schools have been advised to consider responses to and ways to prevent student-on-student sexual harassment. (4)

When considering corrective and preventative approaches to peer sexual harassment in the schools, educators and policy makers should strongly consider addressing same-sex harassment. Prior to its decision in Davis, a unanimous United States Supreme Court, in Oncale v. Sundowner Offshore Services, Inc., held that same-sex harassment in the workplace may be actionable under Title VII. (5) Given the judiciary's frequent reliance on Title VII standards in Title IX cases, (6) at least when considering what type of conduct is actionable, (7) Oncale, when read together with Davis, signals the opening of a new avenue for students seeking relief for same-sex peer harassment.

Notably, at least one federal appellate court has extended Oncale to Title IX's prohibition of teacher-to-student sexual harassment. In Doe v. Dallas Independent School District, the Fifth Circuit held that a male third grade teacher's molestation of several of his male students was actionable under Title IX. (8) Furthermore, the United States Supreme Court cited Oncale, albeit for rather uncontroversial points of law, in Davis (9) and another subsequent Title IX sexual harassment case. (10) Finally, the United States Department of Education has stated that same-sex peer harassment may violate Title IX's prohibition of sex discrimination in education, although the department acknowledges that Title IX does not prohibit sexual orientation harassment. (11) Sex and sexual orientation, however, are "closely related" concepts. (12) Harassment based on sexual orientation may also be harassment based on sex and therefore actionable under Title IX. The Supreme Court's precedents, coupled with the Department of Education's statement, underscore the viability of same-sex, student-to-student sexual harassment lawsuits.

Any school's response to sexual harassment should account for developments in this area of Title IX. Recent court cases decided on constitutional grounds (13) and the enactment of several state and local civil rights laws (14) also afford legal protections to students victimized by same-sex peer harassment. Although the response of education to homosexuality has long been controversial (15) and remains so today, (16) school leaders ignore this controversy at their legal peril.

This article hopes to offer some insight for educators and policy makers developing responses to same-sex peer harassment. First, it more fully explains the Supreme Court's decisions in Davis and Oncale and their importance to educators. (17) Second, it briefly summarizes recent scholarship concerning the effects of a homophobic school climate on students. (18) Finally, it offers some basic guidance for practice and policy formation. (19)

1. FEDERAL STATUTORY PROHIBITIONS OF SEXUAL HARASSMENT

   The two major federal statutes concerning sexual harassment are Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, which respectively govern sex-based discrimination at school and at work. Title VII provides in relevant part that covered employers shall not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex." (20) Similarly, Title IX states that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." (21)

   Sexual harassment has long been held to be prohibited sex discrimination under both Title VII and Title IX. (22) A person may prove sexual harassment by demonstrating a "quid pro quo" proposition (i.e., making a positive performance evaluation or desired grade conditional upon performance of a sexual act). (23) Alternatively, one may prove sexual harassment by showing the existence of a "hostile environment," (24) an environment in which the conditions of a person's employment or educational setting are altered by unwelcome harassment based upon the person's gender. Recent United States Supreme Court cases, including those mentioned previously, have apparently expanded the practical reach of both statutes. (25)

   1. The Davis Decision

      In Davis, the Supreme Court held that Title IX's prohibition of sex discrimination in education extends to student-on-student harassment. In a complaint against the Monroe County Board of Education, Aurelia Davis alleged that her daughter LaShonda was repeatedly subjected to sexually suggestive conduct by G.F., one of her fifth grade classmates. (26) Ms. Davis alleged that LaShonda repeatedly reported this conduct to several of her teachers to no avail. (27) Ms. Davis sought damages from the board. (28) The federal trial court dismissed Ms. Davis' complaint against the board, ruling that Title IX provided no basis to hold the board liable for peer harassment. (29) On appeal, a divided panel of the Court of Appeals for the Eleventh Circuit reversed the judgment of the trial court. (30) A divided Eleventh Circuit, en banc, reversed the panel decision and affirmed the trial court. (31) The Supreme Court granted certiorari. (32)

      In Davis, the Supreme Court held that a school is liable for peer harassment in "certain limited circumstances." (33) First, the behavior must have been "so severe, pervasive, and objectively offensive that it ... deprive[s] the victim of access to ... educational opportunities or benefits." (34) Second, school officials must have actually known of this behavior. (35) Third, the school officials must have responded to the behavior with "clearly unreasonable" action or inaction. (36) Applying this standard to the allegations contained in Ms. Davis' petition, the Court concluded that Ms. Davis was entitled to pursue a claim under Title IX and reversed the Eleventh Circuit's judgment. (37)

      The Davis Court indicated that its holding had limits. (38) The Court noted that conduct alleged to be peer sexual harassment under Title IX must be judged in light of its context--the schoolhouse. As students are still learning how to behave and commonly "interact in a manner that would be unacceptable among adults," (39) the Davis Court concluded that "simple acts of teasing and name-calling" would not justify an award of damages under Title IX. (40) Rather, damages are an allowable remedy only when harassment has a "systemic effect on educational programs or activities." (41)

      In retrospect, the Davis case appeared to many commentators to be an incomplete victory for students. Although establishing the viability of a peer sexual harassment cause of action under Title IX, the Davis decision's adoption of "actual knowledge" and "clearly unreasonable response" as required elements of such a cause of action has effectively limited successful suits. (42) However, the Davis case may provide a necessary platform upon which targets of same-sex harassment may base a claim for relief.

   2. The Oncale Decision

      Does Davis extend to same-sex student-on-student sexual harassment? Any answer to this question must adequately explain the Supreme Court's Oncale decision, in which the Court recognized that Title VII's prohibition of sex discrimination in employment encompasses same-sex sexual harassment. (43) In this case, plaintiff Joseph Oncale alleged that he had endured physical and verbal harassment of a sexual nature by male co-workers on an offshore oil platform, including threats of rape. (44) After his supervisors did not take any "remedial action," (45) Mr. Oncale resigned. (46) Later, he said "I felt that if I didn't leave my job, that I would be raped or forced to have sex." (47) The lower courts, however, did not recognize Oncale's sex discrimination claim. (48)

      After the Supreme Court granted Oncale's petition for certiorari, (49) it reversed the lower courts' rulings, (50) concluding "that nothing in Title VII necessarily bars a claim of discrimination `because of ... sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex." (51) In doing so, the Court declined to follow lower court decisions limiting sexual harassment under Title VII to conduct "motivated by sexual desire." (52) The Court noted that "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." (53) The Court also rejected any "conclusive presumption" that individuals would not discriminate against members of the same sex. (54)

      The Court repeated the established rule that Title VII is only violated if conduct, objectively viewed from the point of view of the plaintiff, is so abusive or offensive that it alters the conditions of employment. (55) The Court made clear that Title VII does not sterilize employment of all sexual content: "The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectionably offensive as to alter the `conditions' of the victim's employment." (56) The Court continued by stating: "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." (57) After the decision's release, (58) the parties settled. (59)

      Before continuing, it may be helpful to...