Thursday, June 25, 1998

High court's harassment ruling correct

A majority on the Supreme Court has ruled that a student sexually harassed by a teacher cannot collect damages from a school district unless officials knew what was going on and failed to act. The justices in the minority are beside themselves. It seems to be their view that the flood wall has just been bulldozed, that the inundation will soon be upon us and that untold numbers of the innocent will drown.

Concerning the consternation of these justices, a non-legal word would seem to serve: flapdoodle. Their outcry is the sort of thing that makes one suspect Washington's heat and humidity are getting to them and that they have postponed their summer vacations in cooler climes for far too long.

The 5-4 decision was about a federal law known as Title IX, which was not written to address sexual harassment in the first place. It was meant to address sexual discrimination, and the remedy was withdrawal of federal funds from the guilty institution. It was not until 1992 that the court, to its discredit, decided to rewrite the law to cover sexual harassment. The minority must now believe that, until the court acted six years ago, schools were awash in sexual misbehavior that knew no restraints.

But there were and are other deterrents. For instance, when a teacher gets sufficiently out of line, as in this case of a teacher having an affair with an underage female student, he can face criminal charges, as this one did.

What is more, to believe that the propagation of federal lawsuits is the only means of preventing school officials from gross negligence in protecting their charges is to assume that large numbers of them are irresponsible, morally demented and uncaring about their future employment.

Even if the minority justices were right about the practical consequences of the majority ruling, they should still understand that it's not their job to legislate but rather to interpret legislation. While prior court rulings went far afield in permitting damage suits under Title IX, it would have been an even greater abuse of congressional intent for the court to have decided that school districts were liable for discriminatory practices when no official had any inkling of anything amiss.

Title IX concerns itself with administrative conduct, not with the prohibited conduct of employees taking every precaution to go undetected. The minority position would subject school districts to suits that might cost millions of dollars for a failing all of us have -- lack of omniscience.