School Safety – How Safe are our Schools

Summary

National headlines have disrupted our trust in the sanctity and safety of our schools. We have known and, sadly,
accepted for some time that the world is not always a safe place for our children. Historically, however, we
could at least trust our schools to provide safe havens…

Schools are a lot less safe than they used to be, thanks to the United States Supreme Court

Summer
is upon us. I have dropped my kids off at school for the last time until September. When they go back in the
fall, it won’t be the same.

National headlines have disrupted our trust in the sanctity and safety of our schools. We have known and, sadly,
accepted for some time that the world is not always a safe place for our children. Historically, however, we
could at least trust our schools to provide safe havens to which we could send our children without fear or
reservation. From 8 to 3, we trusted that our kids were safe.

That trust is no longer justified.
We see news reports of shootings of school children, by school children, on school grounds, raising questions
about our children’s safety from violence at school. Now, the United States Supreme Court, in its recent
decision in Gebser and McCullough v. Lago Vista Independent School District, has given us reason for concern
for our children’s safety from sexual abuse. So long as they turn a blind eye, schools cannot be held
accountable for damages caused when school personnel sexually abuse the children entrusted to their
care.

Title IX of the Educational Amendments

In 1972 Congress
enacted Title IX of the Educational Amendments to guarantee every person an education free from discrimination.
In part, Title IX requires that every school receiving federal support (i.e. virtually every public school in
the country) must provide its students an education free from sexual harassment, sexual predation and sexual
abuse. The Supreme Court affirmed this principle six years ago, in Franklin v. Gwinnett County Public Schools,
confirming that victims of Title IX violations could sue an offending school department for damages caused by
the discriminatory or abusive conduct.

Title IX thus was enacted to give parents currency to hold schools accountable for the safety and well-being of
their children. Title IX was to be a powerful weapon, designed to expose schools to public scrutiny, to
encourage us to act affirmatively on behalf of our children, and to ensure that children could be compensated
fairly for the harm caused by Title IX violations.

Last week, in a sharply divided decision, the United States Supreme Court gutted Title IX.

In
Lago Vista, Texas, 14-year-old Alida Gebser first drew the attention of a teacher, Frank Waldrup, in eighth
grade. Waldrup began making sexually suggestive comments in a book discussion group in which Alida
participated. Other students complained about Waldrup’s improper conduct, conduct Waldrup denied in a meeting
with school administrators. By ninth grade, teacher Waldrup’s sexual advances on Alida developed into an
intimate sexual relationship. Alida, out of fear of the consequences, did not report Waldrup’s predatory
actions. The relationship, which included having sex during class time, ended only when they were caught
engaging in sexual intercourse by a police officer. Waldrup was fired shortly after.

Alida and her parents sued the school district under Title IX. Title IX prohibits schools from sexually
harassing or abusing its students. Schools act through their employees, including teachers. A school employee,
Alida Gebser’s teacher, sexually abused her.

Under Title IX, the Gebsers argued that the school
was liable because it either knew or should have known of Waldrup’s offensive conduct. This argument is
consistent with current employment discrimination law, which holds employers liable for workplace
discrimination or harassment if the employer knew or should have known of the offending conduct.

The Texas federal trial court decided that the Gebsers had no case. Even though the Gebsers proved that the
sexual contact took place, that Waldrup had used his authority as a school employee to initiate and perpetuate
the sexual relationship, and that there had been complaints from other students about Waldrup’s conduct, the
trial court found that the Gebsers could not recover because they couldn’t prove that the school actually knew
that Waldrup was having sex with his student. The Supreme Court agreed, ruling that unless the victim can prove
that the school had actual knowledge of its employee’s sexually predatory actions, the victim has no case. As a
result, parents of sex abuse victims face an impossible standard of proof against a school that denies
knowledge.

The Court’s decision was a close one, by a 5-4 majority vote. Justice Stevens, writing
for the dissent, points out the hypocrisy in the majority opinion. Waldrup’s sexual abuse of his student,
writes Stevens, was made possible only by his affirmative misuse of his authority as her teacher. As a teacher,
he was part of the school, his authority stemmed from his role in the school, and and he used his role to take
sexual advantage of his student. To deny the student her Title IX protections because the “school” didn’t know
it was happening flies in the face of logic. Congress enacted Title IX to force schools to adopt and enforce
practices that protect vulnerable students. The Supreme Court’s decision encourages the opposite, eroding our
children’s protection. As Justice Stevens put it, “as long as school boards can insulate themselves from
knowledge about this sort of conduct, they can claim immunity from damages liability.” In other words, see no
evil, pay no damages.

The changing roles of the school

Ironically, the shield erected by the Supreme
Court comes at a time when public schools have never had a greater role in developing our children. It used to
be that the school day was consumed by reading, writing and arithmetic. Parenting responsibilities remained at
home. Today, we rely on our public schools to raise and educate our children in ways never dreamed of thirty
years ago – sex awareness, AIDS awareness, alcohol and drug awareness have become integral parts of the public
school curriculum. As parents, we should have the right to expect that our children will be protected by the
minimal Title IX standards, and to hold our schools accountable where their employees deliberately harm the
children entrusted to their care.

The Supreme Court’s majority opinion admits that sexual harassment “unfortunately is an all too common aspect of
the educational experience.” We have all read about these cases in the newspaper, even here in Maine. Last
year, under Title IX, a mid-coast school district paid compensation to several elementary school boys who were
the victims of sexual abuse by a school employee. Just this spring, the City of Augusta entered into a
settlement agreement under Title IX to pay two former male students whose lives were devastated by an Augusta
elementary school teacher who sexually preyed on boys at the school.

While Title IX obviously did not prevent the abuse from happening, it was the threat of Title IX lawsuits that
forced the school boards and administrators not to sweep the problem under the rug, to face the problem
directly, and to institute safeguards to prevent reoccurrence. Parents’ ability to enforce Title IX through the
courts kept school boards vigilant and our children safer. Sadly, as Justice Stevens says, the Gebser case
undoes this protection, and in fact gives school boards and administrators an incentive to avoid knowing
anything, to remain purposefully ignorant. Blinders avoid lawsuits.

This need not be the end of the story. Congress created Title IX 25 years ago, to afford protection to public
school students from discrimination. The protections and remedies stripped judicially by the Supreme Court can
be restored legislatively by Congress. No candidate can stand against safe schools, and there is no better time
– and no better issue – to get the attention of our representatives. This is, after all, an election year.