Playground Predators?

Aurelia and Leroy Davis say their daughter LaShonda entered fifth grade in Forsyth, Ga., an excited, engaged kid. But by December she was telling her parents that a boy in her class was sexually taunting her with touches and comments. The Davises complained, but for the next five months found their concerns brushed aside. LaShonda was forced to sit next to the boy for months despite his lewd comments and his attempts to grab her genitals. The principal responded with a lackluster promise to "threaten him a little harder." LaShonda became withdrawn and depressed, and one night her father found a suicide note. Even now, six years later and in 11th grade, his daughter, he says, is still "not the same LaShonda."

The Davises did not let the matter rest. They hauled the boy into juvenile court, where he pleaded guilty to battery. Then they sued the school district in a case that last week made its way to the Supreme Court. Facing the high court for the first time is the issue of whether schools should be held liable when students sexually harass other students. At stake are $500,000 in damages and some difficult questions: Where does childish misbehavior end and sexual harassment begin? Should courts and judges be meddling in an area in which parents and educators have traditionally held sway?

The Supreme Court has applied sexual-harassment law liberally in a number of recent cases. In two rulings last term it decided that same-gender workplace harassment is actionable and that schools can be responsible for the sexual misbehavior of teachers. But during oral arguments in the Davis case last week, the Justices made it clear that they were troubled by this case. Only a few sentences into her argument, the Davises' lawyer was stopped by Justice Sandra Day O'Connor. "I'm sure children nationwide tease each other," she said. "Is every one of those incidents going to lead to some sort of lawsuit?" The Justices continued to pepper the attorney with questions: Are schools responsible for sexual misbehavior between children? Should the same standard be applied for adults, teens and children? Aren't these problems better left to psychologists, parents and educators rather than to courts and judges? "Its a question of where we draw the line," said Justice Anthony Kennedy.

Ever since Jack and Jill went up the hill, children on playgrounds have been shoved around or called fathead. And as kids notice sexual differences--something our Baywatch society makes it hard for them to ignore--a whole new arsenal of insults opens up. Those supporting the Davis suit contend that sexualized behavior can often get out of hand. And when schools sweep problems aside by saying "Kids will be kids"--or, more often, "Boys will be boys"--sexual harassment can become sexual discrimination, since the fear and psychological stress can take a toll on a child's ability to learn and infringe on the Title IX right to an equal education.

But are we comfortable applying the language of adult sexual harassment and sexual discrimination to kids? It's hard to tell if today's children behave much better or much worse than those of the past, since sexual-harassment studies are new to the '90s. Davis supporters believe they can draw a valid parallel to workplace sexual harassment, where once common behavior is now seen as unacceptable. "It's the same behavior, and it comes from the same place," says Martha Davis, legal director of the NOW Legal Defense and Education Fund. But opponents point out that children can be cruel without fully understanding it. "It's ridiculous. Most behavior shocking in adults is normal in children," argues Christina Hoff Sommers, a researcher at the conservative American Enterprise Institute.

Even knottier is the question of whether school districts should be made more liable than they are in state courts, where rulings tend to spark change only in the offending district. A 1993 survey by the American Association of University Women found that 30% of girls and nearly 20% of boys are harassed often, leading Davis advocates to argue that the problem is systemic and needs the widespread changes likely to follow a federal precedent.

The changes would be significant if they reflected the difference made in individual districts by state rulings. Raul Ugarte, a parent in Antioch, Calif., sued his school district five years ago after it refused to take action against a boy who was sexually harassing and threatening to kill his fifth-grade daughter Tianna. Ugarte won a $450,000 judgment, and the school district fired the superintendent.

Supporters of the lawsuit contend the lines would be clear, with the school responsible only for taking reasonable action rather than ensuring that the behavior ends. Yet the moving parts are many and concerning. The behavior would have to be severe, repeated and objectionable to a reasonable person. But it's hard to see which jeers and touches would meet everyone's definition of unreasonable. And as the courts test that standard, they will also have to measure what it means for a school to take reasonable action. Was detention too little or suspension too much?