Copyright 1999 The Omaha World-Herald Company
Omaha
World-Herald
October 19, 1999, Tuesday SUNRISE EDITION
SECTION: ;LIVING; Pg. 34; John Rosemond
LENGTH: 433 words
HEADLINE:
It's Hard to Discipline Harassment
BODY:
If you want to know where a good amount of
the money is going, going, gone in public education, it's into
hiring defense attorneys to fight lawsuits that school systems can't win.
Last spring, a divided Supreme Court ruled 5-4 that a Georgia school
responded "inadequately" to a fifth grade girl's complaints of being sexually
harassed by a male classmate. There's no doubt the boy sexually harassed her.
There's no doubt the girl suffered emotionally and, indeed, her grades dropped.
But did the school violate federal law? The 1972 law in question 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 receiving federal funds.
A majority
of the justices ruled that the 1972 language applies when a school shows
deliberate indifference to "severe, pervasive, and offensive" harassment of
which the school has "actual knowledge."
No matter that the law says
nothing about sexual harassment in grade school. Justice Sandra Day O'Connor
maintained it was implied, and even more incredibly, Congress meant to imply it.
One might ask, if Congress meant to imply it, why then, didn't they simply state
it? Never mind.
Four justices dissented, saying that since Congress was
not explicit about including grade school sexual harassment, the states had no
way of knowing what sort of response was adequate. Justice Anthony Kennedy also
noted that the ruling places schools in a double-bind.
The Individuals
With Disabilities Education Act of 1994, he pointed out,
"places strict limits on the ability of schools to take disciplinary actions
against students with behavior-disorders, even if the
disability was not diagnosed prior to the incident triggering
discipline."
In other words, if a school
disciplines a child who is later diagnosed with a nouveau
behavioral "disability," the child's parents can sue.
It is reasonable to believe that a fifth-grade boy who sexually harasses
a classmate in a "severe, persistent, and objectively offensive" manner is a
budding psychopath. In other words, emotionally and behaviorally disturbed.
How is a school supposed to discipline this boy such
that his harassment stops, thus preventing litigation from the girl's parents,
but also in a manner which prevents litigation from his parents?
Let's
face it, some parents will only accept that their child is emotionally disturbed
if the diagnosis comes with the promise of winning megabucks in the litigation
lottery.
LOAD-DATE: October 20, 1999
