Originally published in: The Wall Street Journal

Yesterday the U.S. Supreme Court held 5-4 that a girl who claims she was sexually harassed by a fifth-grade classmate may proceed with her case against her school district, in which she seeks $500,000 in damages.

At issue in the case, Davis v. Monroe County Board of Education, was whether the legal concept of “sexual harassment” – originally developed in the context of an adult workplace  – applies to the behavior of children at school, and, if so, whether students may hold their schools financially liable for so-called peer harassment.

The case was brought under Title IX of the Education Amendments of 1972, which prohibits schools from discriminating on the basis of sex.

Although Title IX makes no mention of sexual harassment or liability for the actions of students or other third parties, the Supreme Court, in an opinion written by Justice Sandra Day O’Connor, held that a teacher’s failure to prevent unwelcome sexual conduct by a student can constitute discrimination by the school.

Last year, in a case called Gebser v. Lago Vista Independent School District, the Court held that school districts can be held liable when school administrators fail to take action after being notified that a teacher has sexually harassed a student.

But this case was different.

As the four dissenters, led by Justice Anthony Kennedy, pointed out, teachers (unlike students) are agents of the school district who can be fired for misconduct.

By contrast, students in every state enjoy the legal right to a free public education.  Schools have an obligation to educate all students, and students inherently are more difficult to control than adult employees. It, therefore, strains logic to suggest that the failure of a school district to respond to a particular charge of student misconduct can constitute an act of intentional sex discrimination by the school.

Moreover, common sense suggests that sexual harassment of a student by a teacher differs dramatically from garden variety adolescent or preadolescent sexual behavior and, accordingly, warrants different treatment under the law.

A kiss on the cheek, a sexually suggestive remark, the persistent pursuit of a romantic relationship with someone who is not interested, even unwanted sexual touching all may be normal parts of growing up when the individuals involved are peers.  The same actions take on a decidedly different meaning when the perpetrator is a teacher and the target is a student.

This distinction was apparently lost on the Court.

Remarkably, yesterday’s ruling placed public educational institutions at greater risk than private corporations for sexual harassment liability – a result Congress clearly did not intend.

Unlike Title VII, which prohibits sex discrimination in employment, Title IX does not provide for agency investigation and conciliation of complaints prior to the filing of a case in federal court, steps that allow cases to be resolved quickly and at low cost.

And unlike Title VII, Title IX provides no statutory cap on damages.  That means one large jury verdict could bankrupt a small school district.

In the wake of lower-court rulings finding school districts liable for peer harassment, many primary and secondary schools responded with draconian policies prohibiting hand-holding, the passing of romantic notes, or chasing members of the opposite sex at recess.

At least one teachers’ manual on sexual harassment, pointed out by the dissenters in Davis, suggests telling a classmate that “you look nice” may constitute punishable sexual harassment depending on the tone of voice and facial expression of the student perpetrating the compliment and on who else is around.  Such extreme policies will no doubt become more common as schools seek to avoid liability under Davis.

Do we really need to make the proverbial federal case out of a teacher’s failure to prevent students from making sexual comments about their peers?

On what basis should we treat inappropriate sexual behavior as more serious than other forms of student misconduct?

Surely students who bring weapons to school pose a far greater threat to our nation’s-students than preteens who tell dirty jokes.  Yet yesterday’s ruling will cause schools to spend scarce resources conducting “sexual harassment workshops” and disciplining students for hand-holding, rather than on implementing measures to keep guns out of the schools.

Even prior to the Court’s decision in Davis, victims of peer harassment – sexual or not -had at their disposal an array of state administrative, civil, and criminal remedies that fall far short of instituting a federal action for sex discrimination.

By allowing the Davis case to go forward, the Supreme Court has elevated inappropriate sexual behavior above all other types of student misconduct and opened the gates to a flood of federal litigation against American schools that Congress clearly did not contemplate.

Congress should amend the statute to overturn this bit of judge-written law.


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