ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, October 6, 1996 TAG: 9610070165
SECTION: NATIONAL/INTERNATIONAL PAGE: A-8 EDITION: METRO
SOURCE: The New York Times
IS A KISS STILL JUST A KISS? Recent lawsuits by students are forcing administrators to make sensible policy.
The recent suspensions of two little boys for kissing girls highlight the confusion that is sweeping schools as educators grapple with a growing fear that they may be sued for failing to intervene when one student sexually harasses another.
School districts are alarmed by a new wave of lawsuits. This week, a jury in California awarded damages of $500,000 to Tianna Ugarte, a girl who had endured months of sexual taunting and threats from a sixth-grade classmate.
In the evolving area of law dealing with sex discrimination in schools, harassment by students against other students has long been the murkiest area. This fall, the uncertainty seems greater than ever.
A set of federal guidelines sent to school districts nationwide in mid-August said schools that did not take adequate steps to stop such harassment would be in violation of Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination in schools that receive federal funds.
Federal courts have been sharply divided, however, on whether schools can be held liable for peer harassment or whether Title IX applies only to discriminatory behavior by a district and its employees.
Education experts say the fear of liability has led some schools to go to extremes.
``Of course it's an overreaction to suspend a 6- or 7-year old for a kiss on the cheek,'' said Naomi Gittens, a lawyer at the National Association of School Boards. ``It's pretty clear that's not sexual harassment under the law, and at that age you shouldn't be talking about sexual harassment. You should be talking to kids about what kind of touching is OK, whether it's kissing or hitting.
``But I can sympathize with schools' thinking that they'll try to avoid liability by having some definite policy saying anything like this is sexual harassment. We're getting more calls than ever from boards who are confused.''
Lawyers said many schools still fail to respond adequately to complaints of persistent harassment that blight students' school life.
Tianna's case shows how difficult such situations can be. She was 11 when a male classmate began tormenting her with name calling, violent threats and obscene gestures.
``The family didn't want to sue,'' their attorney, Sandra Springs, said. ``They just wanted the school to get the boy into counseling. But the school decided it was better to let this girl be terrorized every day than to do something about the boy. The superintendent told the parents that little girls are sometimes just too sensitive.''
Tianna's father, Raul Ugarte, said he complained persistently, even gave the superintendent a letter from the parents of another girl who had been harassed by the same boy, and tried to bring the matter before the school board.
Ugarte said the family sued only after his complaints had gone unheeded, the harassment had worsened, and Tianna had become visibly troubled.
School officials, who are considering an appeal of the decision on the suit, say it is not that simple.
``We told the Ugartes we have to verify the evidence,'' said the superintendent, Alan J. Newell. He said he he worried that putting the boy into counseling instead of class would violate his rights.
``We did investigate, and our investigations concluded there was some name calling, but never verified any of the other allegations,'' Newell said. ``We're not bashful about discipline. But we didn't have the evidence to corroborate the complaint.
``School districts are caught in the middle. Remember, we weren't doing the harassing. We're the entity with the deep pockets. It's easy for us to be implicated and to be portrayed as being the district up against the poor child. That's not an enviable position.''
As a legal matter, there is no consensus about what standards should apply. Some federal courts have ruled that schools are responsible for stopping the harassment of students by other students, under much the same standards as those that apply to employers, who are responsible if workers harass other workers.
In the workplace, it is well established that if one employee's harassment creates such a hostile environment that it becomes difficult to work, an employer who does not act to solve the problem is liable for damages. Women's advocates say the standard should be the same in schools.
The agency that enforces Title IX, the Office for Civil Rights in the Education Department, used the workplace analysis in the guidelines on peer harassment that it issued in August.
But not all federal courts accept that standard, arguing instead that school districts should be liable under Title IX only for their own employees' conduct.
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