PDA, Sexual Harassment and Bullying - Where are the lines?
Justin Bathon on Friday, October 19, 2007 at 8:43AM Schools take hard line against public displays of affection
Critics say bans on hugging, touching go too far in bid to prevent sexual harassment suits
04:51 AM CDT on Friday, October 19, 2007
A 7-year-old boy in
Duncanville gets in trouble for telling a classmate to wear a darker
shirt because he can see her bra strap. The school suspends him and
labels the incident as sexual harassment.
In Keller ISD, school officials catch an eighth-grade girl holding hands with a friend and tell her to stop.
From bans on hugging to labeling comments as sexual harassment, schools
are cracking down on anything that smacks of sex. Critics say teachers
and administrators have become too fearful of lawsuits and have stopped
letting kids be kids.
Recent precedent-setting lawsuits
have made it clear that school officials must respond to complaints of
student-on-student sexual harassment or face possible court action.
"I think it's the kind of world we live in today, but you would hope
that common sense would prevail," said Jeff Horner, a Houston attorney
who represents school districts.
Experts liken the
crackdown on student behavior to the way districts responded to safety
and security issues after the 1999 shootings at Columbine High School
in Colorado.
Archie McAfee, executive director of the
Texas Association of Secondary School Principals, said school
principals and administrators are caught in the middle.
If a school district punishes a student for what parents say is a minor
offense, it faces scrutiny. But if a district doesn't take a complaint
seriously, it could be held responsible.
The Supreme
Court ruled in 1999 that school districts can be held liable for
ignoring complaints of student-on-student harassment or failing to
protect students.
In that case, Davis vs. Monroe County School Board of Education,
the parent of a fifth-grade female student sued the school district for
failing to intervene when a fellow fifth-grader harassed the girl for
several months. In the court's eyes, the district had been negligent.
Jim Walsh, an Austin lawyer who specializes in school law, said the
case proved that sexual harassment is a legal concern – not just a
moral and educational one.
So, let me say a couple things about it. First, school personnel can be school officials, so this implicates everyone. Second, deliberate indifference is more akin to purposefully ignoring than it is to simple lack of oversight. Further, cases have found that some reasonable action toward stopping the harassing treatment gets school authorities off the hook for deliberate indifference. So taking some action to resolve the behavior may be enough; it is not necessary to suspend a student to avoid lawsuits under this standard, simply acknowledging that such harassment exists and asking students to stop may be sufficient based on the circumstances. As if those two prongs of this test were not enough, the Supreme Court added a third prong to protect school officials even more, the severe, persistent and objectively offensive prong. What is severe, persistent and objectively offensive? Well, it varies from case to case, but simple instances of a PDA would probably not qualify. The Supreme Court intentionally added this prong to protect schools and school authorities from all but the most blatant instances of student-to-student harassment.
Just like most things in schools, we rely on the judgment of the school authorities. When school authorities are making rational and reasonable judgments about stopping harassment, more often than not they will be protected by the Davis v. Monroe test. It is only when teachers and administrators get outside the bounds of reasonable judgment that they subject themselves to liability.
Edit: Found this today and thought it applied. From Slate.Com:
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