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Article Excerpt
Where, after all, do universal human rights begin? In small places, close to home--so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college she attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world. (1)
I. INTRODUCTION
This article examines liability for peer-on-peer sexual harassment in the context of bullying under Title IX and state anti-bullying laws. Part II describes the persistent problem of bullying in school and its extremely harmful effects on students. Part III explores the background of Title IX and the evolving law regarding peer-on-peer harassment. Part IV proceeds to summarize state anti-bullying laws, while Part V analyzes which legal approach, Title IX or anti-bullying statutes, is best to protect children from peer-on-peer sexual harassment at school. The article then argues that both Title IX and anti-bullying statutes are necessary to protect our children because Title IX does not cover those forms of harassment that do not fit the definition of sexual harassment or are not of adequate severity. Despite the importance of anti-bullying statutes, many currently existing statutes are flawed because they are too deferential to local schools. The article concludes by offering practical suggestions to legislatures when drafting anti-bullying statutes.
II. BULLYING IN THE SCHOOLS
There is another kind of violence, and that is violence by talking. It can leave you hurting more than a cut with a knife. It can leave you bruised inside. (2)
Bullying, one form of student-on-student harassment, is a major problem for schools today. Although an exact definition of bullying is difficult to ascertain, bullying in this article means "when one child or group of children repeatedly picks on another child--often one who is seen as weaker and more vulnerable." (3) Bullying can involve many types of behaviors, including "physical violence and attacks," "verbal taunts," "name-calling and put-downs," "threats and intimidation," "extortion or stealing of money and possessions," and "exclusion from the peer group." (4) Bullying usually begins in elementary school, peaks in middle school, and diminishes, but does not disappear, in high school, (5) "Boys and girls usually bully same sex classmates, with female bullying taking an indirect, manipulative form." (6)
Often dismissed as just teasing or fighting, many individuals are unaware of how pervasive the problem of bullying is in schools, even though research shows that eighty percent of adolescents report being bullied during their school years and ninety percent of fourth through eighth graders report being victims of bullying. (7) If these facts were not alarming enough, statistics estimate that a child is bullied every seven minutes. (8) Bullying often occurs at schools in areas where there is minimal or no supervision. (9) Students are frustrated that teachers or other adults in the classroom ignore bullying incidents. (10) Students uniformly express the desire that teachers intervene rather than ignore teasing and bullying. (11)
Although bullying has existed since the dawn of time, advances in technology are making it easier for bullies to engage in harmful behavior. Web pages designed by students to criticize, stigmatize and traumatize their classmates are becoming more and more common. For example, a website called www.SchoolRumors.com "offered virtual scrawlings on a bathroom wall, and in two weeks it let 67,000 students into that bathroom for a peek. The stuff was scurrilous and vicious, cyberspace blood sport. One girl was reportedly ready to kill herself because of what was said about her." (12)
Unfortunately, this girl's reaction is not atypical. In fact, bullying is often seen as a common link between school violence, suicide and homicide. (13) Homicide perpetrators are more than twice as likely as homicide victims to have been bullied by peers. (14) Besides suicide and homicide, other harmful victim responses include staying home from school, changing schools to feel safe, and avoiding school bathrooms and other places at school for fear of being harassed or assaulted. (15) The long term effects of bullying can be devastating, including depression and low self-esteem. (16)
A. Sexual Harassment
Peer-on-peer sexual harassment, one form of bullying, has equally alarming statistics. Estimates from a 1993 study indicate that of the 1,600 public high school students polled, eighty-five percent of the girls and seventy-six percent of the boys reported experiencing some sort of sexual harassment. (17) The harassment may take many forms, from unwanted touching to minor insults or teasing. (18) Types of sexual harassment students experience in school include sexual comments, jokes, gestures or looks, being touched, grabbed, or pinched in a sexual way, sexual rumors spread about them, clothing pulled off or down, or even being forced to engage in sexual behavior other than kissing. (19)
Although peer-on-peer sexual harassment is much more explicit and concerning, victims' responses to this type of harassment mirror the responses to other types of bullying. The victims of peer-on-peer sexual harassment do not want to attend school, do not want to talk as much in class, and find it harder to pay attention in class. In addition, some children reported thinking about changing schools. (20)
B. Sexual Harassment of Homosexual Students
In Dylan N.'s case, verbal harassment escalated almost immediately into physical violence. Other students began spitting on him and throwing food at him. One day in the parking lot outside his school, six students surrounded him and threw a lasso around his neck, saying, "Let's tie the faggot to the back of the truck." After that incident, the harassment and violence intensified. "I was living in the disciplinary office because other harassment was going on. Everyone knew," he said. "It gave permission for a whole new level of physical stuff to occur." He was pushed up against lockers by students who shouted "fag" and "bitch" at him. On one occasion, a group of students surrounded him outside the school, punching him and jeering while security officers stood nearby. When the assault ended, he had a split lip and a broken nose and was bleeding profusely from his ear. (21)
As Dylan N.'s story suggests, sexual harassment and bullying of homosexual students is a major problem in schools. Human Rights Watch, an international research and advocacy group, released a report that documented the seriousness of the problem. (22) According to this report, nearly every homosexual student interviewed experienced constant verbal and non-physical abuse. Besides name calling, these students were subject to written notes, obscene or suggestive cartoons, graffiti scrawled on walls or lockers, or pornography. It was not uncommon for these behaviors to escalate fairly quickly from mere verbal taunts to unwelcome sexual contact or even physical violence. (23) Gay, lesbian, bisexual and transgender students reported having difficulty concentrating in school and fearing for their safety, and some students actually changed schools or dropped out altogether. (24)
The results of a 2003 survey by the Gay, Lesbian and Straight Education Network echo the findings of Human Rights Watch. (25) This report found that eighty-four percent of lesbian, gay, bisexual and transgender ("LGBT") students reported being verbally harassed in the past school year because of their sexual orientation. (26) More than ninety percent of LGBT students reported regularly hearing homophobic comments at school (27) and, most shockingly, eighty-five percent of LGBT students reported that when faculty or staff heard homophobic remarks, they never intervened or intervened only some of the time. (28) In addition to the verbal abuse, nearly forty percent of these students reported being physically harassed in the past school year because of their sexual orientation. (29)
The research discussed in this Part does not even begin to take into account the detrimental effects for children who are bystanders of this bullying. The statistics paint a bleak picture of the safety and well-being of today's students, whether they are bully, victim, or bystander. The United States and many other governments have taken notice of the statistics. On March 1, 2004, Health and Human Services Secretary Tommy G. Thompson announced a new campaign, "Take A Stand. Lend A Hand. Stop Bullying Now!" designed to educate more Americans about how to stop bullying and youth violence. (30) The campaign
includes a Web-based, animated story featuring a cast of young people who deal with bullies in the classrooms, hallways, and grounds of a middle school. With held from teachers, parents, and other adults, the bullied characters get support from fellow students who step up to make it clear that bullying is 'not cool'. (31)
In addition to the web page, which is updated every two weeks, the campaign has radio public service announcements and resource kits for helping create bullying prevention programs. (32) Although it is hoped that the campaign will be effective in educating citizens about the problem, it can only be viewed as part of a solution; both anti-bullying statutes and Title IX are necessary if the problem of bullying is to be effectively remedied.
III. TITLE IX LIABILITY FOR PEER-ON-PEER SEXUAL HARASSMENT
A. Background to Title IX
Title IX was passed in 1972 largely to help women gain access to the same educational opportunities as their male counterparts. (33) Congress debated whether Title IX was actually needed or instead, if Congress could just add the word "sex" to Title VII which prohibited racial discrimination. (34) Title IX's proponents, however, were ultimately victorious and Title IX was passed providing that, "[n]o person in the United States 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...." (35)
At the time of its passage, there was uncertainty about whether Title IX was intended to cover sexual harassment. (36) In fact, not until the 1990s did the Supreme Court hear cases pertaining to sexual harassment and Title IX. One of the first of these cases, Gebser v. Lago Vista Independent School District, involved alleged sexual harassment of an eighth grader by her teacher. (37) The student claimed that the teacher made sexually suggestive comments to her and other female students. (38) The teacher also fondled Gebser's breasts and ultimately engaged in sexual intercourse with her. (39)
The Court in Gebser set out a two part standard for holding schools liable under Title IX. (40) First, a school official with authority to address the problem must have actual knowledge of the harassment. (41) Second, the official must fail to respond adequately. (42) This is a fairly difficult standard for the plaintiff to satisfy, since it does not require that the school actually stop the harassment; apparently, an adequate response does not go that far. Furthermore, liability is established only if the official acts with "deliberate indifference" or an official decision not to correct the violation. (43) In Gebser, the school officials knew about the teacher's sexually inappropriate comments to the female students and warned him to watch his classroom comments, but because the school did not have actual knowledge of the teacher's sexual acts with Gebser, the Court refused to find the school liable under Title IX for sexual harassment. (44)
B. Davis v. Monroe County Board of Education
In 1999, the Supreme Court decided Davis, a case involving Title IX and sexual harassment issues. (45) Instead of teacher-on-student sexual harassment, the sexual harassment in Davis was peer-on-peer. (46) The plaintiff sued the school district, not for the other student's actions, but for its own inaction, by allowing the known harassment to continue against her. (47) During the school year of 1999, Davis, a fifth grade girl, endured continual verbal and physical harassment by one of her classmates. Davis was subjected to her fellow classmate rubbing against her genital areas and breasts, as well as, constant verbal comments to her such as "I want to feel your boobs" and "I want to get in bed with you." (48) Even though the girl's mother complained to the school, nothing was ever done to stop the harassment. (49) It only stopped when the fellow classmate was charged with sexual battery. (50)
The Court reversed the Eleventh Circuit's holding that schools could not be liable for peer-on-peer harassment, holding instead that a recipient of federal funds could be liable "for deliberate indifference to known acts of harassment." (51) The Court held that in order to be liable under Title IX, "[t]he recipient itself must 'exclude [persons] from participation in ... den[y] [persons] the benefits of, or ... subjec[t] [persons] to discrimination under 'its 'program[s]...
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