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September 1999


Schools Could Face Lawsuits Over Student-on-Student Harassment

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By Kelly Smith

A recent U.S. Supreme Court decision may be a sign of things to come in Ontario schools.

The Supreme Court of the United States sent a wakeup call in May to educators and the public about the need for publicly-funded schools to deal with student-on-student sexual harassment.

The case involves a young female student known as LaShonda D. and one of her fifth-grade classmates, G.F., in a public school in Monroe County, Georgia. Over a period of about one year, G.F. attempted to touch LaShonda’s breasts and genital area, made vulgar, sexually-explicit statements to her, and rubbed his body up against her in the school hallway in a sexually suggestive manner. LaShonda reported each of the incidents to her mother, several of her teachers and the school principal.

The persistent, harassing behavior of G.F. had a predictably haunting effect on LaShonda. Her previously high grades dropped as she became unable to concentrate on her studies, her father discovered towards the end of the harassment period that she had written a suicide note, and in fact the young girl confided in others that she didn’t know how much longer she could keep the young man "off of her".

Despite the reported misconduct, no disciplinary action was taken against the male classmate. No effort was made to separate the young boy from LaShonda. Moreover, during the period in question, the Monroe County Board of Education had neither established a clear policy on the problem of peer sexual harassment, nor advised its teachers and principals on how to grapple with this issue. Clearly, the school board, the principal and the teachers of this young girl were indifferent to the harassment she suffered.

When LaShonda’s mother finally complained to the county sheriff, the boy was charged and ultimately pleaded guilty to sexual battery.

The U.S. Supreme Court concluded that – in accordance with a federal anti-bias law known as Title IX of the Education Amendments of 1972 – where schools receive public funding, the school board can be held liable for damages in cases of student-on-student harassment.

Writing for the majority of the United States Supreme Court, Justice Sandra Day O’Connor stipulated that the board must be "…deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."

School boards, however, will not likely be held liable where there is a complete absence of actual knowledge or notice to the board personnel, or where the board responds in a fashion that is clearly not unreasonable. Indeed, where disciplinary measures are taken by school administrators, courts are specifically warned to be wary of second guessing these decisions. Anticipating the arguments of the absurd, Justice O’Connor took pains to explain that, "…in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments

target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect."

The day following the release of this decision, the Vancouver Sun carried news that British Columbia teachers will have a province-wide guide in September 1999 to help them deal with elementary school students who sexually harass or victimize their fellow classmates. "We want to make sure our school employees have an idea of how to respond to a range of sexual behaviours from normal to problem behaviours," said Diane Pollard, co-ordinator of the ministry’s special programs branch. The initiative is not the result of a specific incident or an increase in reported occurrences, Pollard said. "Rather, it’s an attempt to be pro-active and recognize that children sometimes respond to stress with inappropriate behavior."

However, Ontario school boards have been required since 1994, under the Ministry of Education’s Violence-Free Schools Policy, to have policies that contribute to safe, welcoming, violence-free school environments. Sexual, as well as physical, verbal or psychological abuse, bullying and discrimination are unacceptable.

But could the United States experience repeat itself in Canada? Should Ontario be anticipating similar law suits? You bet.

With the increasingly litigious nature of Canadian society, it does not require much of a leap to imagine school boards in Ontario in the same predicament as Monroe County. Granted, we don’t have identical legislation in Ontario.

But we do have the Human Rights Code and the Education Act, both of which combine to give the same net effect as the American law. The Ontario Human Rights Code requires that one show discrimination with respect to services. Public education is a service provided by the school board.

When an action is brought for student-on-student sexual harassment, the school board can also be named as a party. The Human Rights Code specifically provides that a school board can be named in an action against the acts committed by individuals who are within their control. The Education Act details the duties and obligations of teachers and principals to maintain proper order and discipline in the classroom, school building and on the school grounds.

What’s more, the Supreme Court of Canada has recently endorsed the position that "it is not sufficient for a school board to take a passive role. A school board has a duty to maintain a positive school environment for all persons served by it and it must be ever vigilant of anything that might interfere with this duty." [1996] S.C.J. No. 40 (Q.L.), (1993).

It would not be difficult to cobble together an argument showing Canadian school boards should be held liable for the harassing conduct of students against other students. Indeed, a recent article by Chantal Richard in the Dalhousie Law Journal, predicts, "In Canada, human rights cases addressing employer liability for co-worker sexual harassment can provide strong arguments in favour of school liability for student-to-student sexual harassment. The analogy between student-to-student sexual harassment and co-worker sexual harassment is appropriate because school administrators exert at least as much control over students as employers do over all of their employees."

In her article, "Surviving Student-to-Student Sexual Harassment: Legal Remedies and Prevention Program-mes," Richard went on to say, "Arguably, schools have more influence over their students because they have the statutory authority to discipline them and monitor their mandatory attendance until they reach the age of 16 years."

Anticipating the likely falling in step with American jurisprudence, what should we be doing about it? Litigious societies rarely benefit in the long run from a proliferation of suits that reach into every aspect of an individual’s life. Surely the better approach is a proactive and preventive one, recognizing destructive behavior in its infancy, and correcting it in the earliest stages.

But policies and guidelines alone are not enough. Laws don’t stop criminal behavior; they enable us as a society to sanction the offending conduct once it has been committed. Similarly, protocols and policies alone will not stop harassment.

It’s hardly surprising that children who are abused or neglected at home are likely to repeat the cycle outside of the home. How can children who are hungry or otherwise deprived of basic human needs legitimately be expected to behave with charity or tolerance of others?

Our children are inundated with an unprecedented culture of violence in every facet of the media. Is it any wonder that a basic lack of respect for the dignity of fellow human beings seems so pervasive? Cuts to public education and the resulting loss of extracurricular programs lead to boredom and uninspired minds, both of which provide fertile ground for destructive, offensive behavior.

Surely our efforts should not be wasted scrambling to avoid potential lawsuits. We should be focusing our energies on cultivating a new generation of children who embody such compassion and tolerance from infancy that lawsuits will become an archaic vestige of an unenlightened past.

The Ministry of Education’s Violence-Free Schools Policy can be found at .

Kelly Smith, who works as a prosecutor in east-end Toronto, has been an Assistant Crown Attorney with the Ministry of the Attorney General for the past decade.