Sometime in the course of the next few days, the girls -- like the boys, these are sixth graders, 12 years old -- appear at the office of the school vice principal to report that they wish to make a complaint. Do the girls use the term "sexual harassment"? Possibly, for they have encountered these words in a middle-school assembly and one or two contemporary novels assigned at their grade level, but probably not. Maybe they use the word "harassment." Maybe they use the word "gross." In any case they understand that there is a Procedure, and the vice principal, having paid close attention to the training that instructed her to do so, now sets the Procedure into motion: she pulls out a harassment complaint form. (Sexual harassment, sexual advances or other forms of religious, racial or sexual harassment by any pupil, teacher, administrator or other school personnel, which create an intimidating, hostile or offensive environment, will not be tolerated under any circumstances.) She asks the girls whether they want to fill out the form and sign it. They do. She calls up the Duluth school system harassment specialist.
The school system harassment specialist, who has a job title that a decade ago did not exist in the Duluth public schools -- or, for that matter, in any other school system in the United States -- is a small, cheerful, sturdy-looking 58-year-old former special-education teacher named Judy Gillen. Gillen has short-cropped reddish hair and half-rimmed trifocals and a wild, merry guffaw that is audible some distance away. She works out of the Duluth school administration headquarters, a turreted brick building on the downtown streets that overlook Lake Superior. Gillen's office is a 6-by-10-foot enclosure wedged into half a small room and decorated with teddy bears, puppets, framed photographs of her grandchildren, a Women's History Month poster and a big bright sign, affixed to the front of a file cabinet, that reads: sexual harassment -- it's illegal.
There's a great deal of printed material in Gillen's office, too -- books, pamphlets, videotape guides, visual aids for overhead projection. "Sexual Harassment in Our School: What Parents and Teachers Need to Know to Spot It and Stop It." "Girls and Boys Getting Along: Teaching Sexual Harassment Prevention in the Elementary Classroom." "The Hostile School Bus." "Sexual Harassment: Pay Attention!" There are copies of a districtwide newsletter Gillen composes, which used to be called Harassment News Notes until she changed the title, in a flush of optimism, to Prevention News Notes. And there's an active complaints folder, inside one of the file drawers; that's where the Milk-Bag Incident harassment form will be parked while the middle-school vice principal, with Judy Gillen monitoring the situation from the downtown office, considers what to do.
ntil late last month, when the words "student-on-student sexual harassment" suddenly appeared on newspaper front pages accompanied by the sober countenance of Supreme Court Justice Sandra Day O'Connor, there was probably not much question about the sort of response the Milk-Bag Incident would have provoked in most outsiders coming across it for the first time. It would have made them say: Come on. It would have made them say: 12-year-old girls running straight for the office because somebody offended them, vice principal nodding soberly and handing over forms to fill out, have these people completely lost their bearings? It would have made them say: These are children. They're supposed to conduct themselves from time to time like hormonally overstimulated jerks.
Cynthia Gorney is the author of "Articles of Faith: A Frontline History of the Abortion Wars."
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Then, on May 24, in a case called Aurelia Davis v. Monroe County Board of Education, the Supreme Court ruled 5 to 4 that any school receiving Federal money can face a sex-discrimination suit for failing to intervene energetically enough when a student complains of sexual harassment by another student. The Davis case started as a lawsuit brought by the mother of a Georgia schoolgirl who was in fifth grade when she began experiencing what her family describes as prolonged sexual harassment -- that was the label from the outset, sexual harassment, even though the two children involved were 10 and 11 years old -- by the boy who sat beside her in class.
The Supreme Court opinions in Davis were lengthy and complicated, as Supreme Court opinions often are, but at the center was a rather remarkable and contentious back-and-forth between Justice O'Connor, writing for the majority, and Justice Anthony Kennedy, writing for the minority. O'Connor said "student-on-student sex harassment" could be a deeply serious matter, affecting a child's ability to learn; Kennedy said "student-on-student sex harassment" was in essence a phrase that made no sense. O'Connor said school officials who ignored protracted and serious harassment could be sued under Title IX, the Federal law prohibiting sex discrimination in educational institutions; Kennedy said the U.S. Supreme Court had no business poking around in matters of local school discipline. "After today," Kennedy wrote, "Johnny will find that the routine problems of adolescence are to be resolved by invoking a Federal right to demand assignment to a desk two rows away."
Kennedy had more to say. He said "sex harassment" is a term that properly applies to the behavior of adults, not to children "who are just learning to interact with their peers." He said one published harassment manual advises that one student's saying "You look nice" to another could be construed as sex harassment, depending on the tone of voice and other variables. He did not say, but suggested by the indignation in some of his memorable prose, that he believes the banner of "student-on-student sex harassment" is being carried at the present time in our legal and social history by meddling, litigation-happy, overreaching hysterics placing impossible demands upon schools that have their hands full teaching children how to read and write.
Judy Gillen is familiar with the harassment manual Kennedy quoted so disapprovingly; it's called "Flirting or Hurting?" it has sold about 20,000 copies to schools all over the United States since it was first published in 1994 and Gillen uses elements of it when she conducts sex-harassment workshops for middle- and high-school students. The line Kennedy lifted is part of a chart used to inspire student argument about possible differences between flirting and harassment. Flirting, suggests the chart: "You look nice." "Like your hair." "Wink." "Wave." Harassment, suggests the chart: " 'Ho." "Grab own crotch." "Pinch." "Lip licking." And maybe, depending on the tone of voice, the facial expression and who else is around: "You look nice."
Justice Kennedy may have a real problem with this. A great many thoughtful people, already working hard to understand the boundary lines defining sexual harassment among adults, may have a real problem with this. But Gillen has no problem with it at all. "I mean, get real," says Gillen, who read every word of Davis v. Monroe County, including the long dissent, the afternoon the decision was handed down. "We need to teach responsibility, we who work directly with kids, and shaping kids' behavior and kids' lives. Because behavior is learned. We can't accept that kind of behavior."
How the Harassment Specialist Spends Her School Day
Judy Gillen is one of the banner carriers -- that's why she's a harassment specialist. Quite a few public schools consult harassment specialists these days; they're supposed to, or somebody will have a problem and nobody will know what to do about it and there'll be a complaint and state or Federal investigators and a lawsuit against the school district and maybe an expensive settlement. There were at least a dozen reported lower court lawsuits even before the Davis ruling, with its announcement that student-to-student Title IX suits may proceed if it can be shown that school officials exhibited "deliberate indifference" to sex harassment that took place on their watch. Now there will be many more, as school officials scramble to figure out what "deliberate indifference" means.
But for some time now one of the numerous anti-lawsuit maneuvers recommended by experts in these matters has been: Get a specialist. Often the specialist is an outside professional who comes in with manuals and case studies in student harassment. It's unusual for a school district to invent a wordy systemwide job title that includes "Harassment Curriculum," but Minnesota is particularly aggressive in what is referred to by its adherents as "gender equity," and besides, as far as is publicly known, Duluth Public Schools was the first district in the country to pay out a monetary settlement in a student-to-student sex harassment case.
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Judy Gillen, the harassment "specialist" for Duluth schools.
Photograph by Paul Shambroom for The New York Times
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"My first title was just Harassment Specialist," Gillen says. "The standing joke was, 'Judy knows how to do that well.' "But she takes her work extremely seriously. She follows legal cases; she studies updates in the education press; she travels out of state to harassment conferences; she gets up in front of classrooms and spends 45 minutes at a shot saying things like: "Unwelcome. And unwanted. Somebody doesn't like it. That's what makes it harassment." She's a hybrid, a product of bewildering and litigious times: part teacher, part mediator, part agitator, part cop. Here's a Judy Gillen work list, the week the Milk-Bag Incident report comes in:
She runs three harassment workshops, one for an eighth-grade health class, one for a high-school health class and one for bus drivers, who as employed agents of the school district are legally liable for reporting anything that looks like harassment on their buses, even if it takes place behind their backs.
She summons a principals' meeting to introduce a new campaign called Safe Harbor, to beef up the idea that harassment protections apply to gay kids too -- that schoolchildren are not supposed to be able to get away with yelling "faggot" at somebody just because everybody else is doing it and previous generations thought it was O.K. She invites as a surprise guest speaker a young Wisconsin man who was recently awarded a $962,000 settlement from school officials found by a jury to have violated the young man's constitutional rights by failing to stop what happened to him in junior high and high school after he acknowledged being gay: the boy was taunted, shoved, sworn at, laughed at, beaten up, subjected to mock rape and cornered in the bathroom while other boys urinated on him.
She holds an early-morning counseling session with a 10th-grader reported for lurking in the hallways, hissing sexual epithets at girls and trying to grab them in inappropriate ways. She rides herd on a gang of high-school boys using obscene anti-gay epithets to pick on a special-education boy who is in fact heterosexual, but feels taunted nonetheless. She keeps close watch on a high-school girl whose ex-boyfriend has been shoving and cursing her in the hallway. (The harassment report filed by the girl reads: "name-calling: 'bitch,' 'slut,' 'whore,' 'ugly bitch,' pushed me, threatened to punch me.") Gillen has the local police on alert for that one.
She follows up on a new complaint report, a boy and girl in the ninth grade going at each other in a mode somewhat unclear to observers and also probably to themselves: the girl told the boy she was going to file a harassment report on him if he didn't leave her alone, whereupon the boy turned around and filed a harassment report on her. "I talked to the principal today and said, 'Get some mediation for these two clowns,' "Gillen says. "You gotta keep a good healthy outlook on life. Because otherwise you'd get torqued out every day, thinking about what kids do."
She's chuckling. She's accelerating her red Subaru up the long hill that leads back from the school-bus office to central headquarters. The expression on her face and the set of her shoulders is just: Ahh, schoolkids, you adore them and you agonize over them and they make you completely crazy, which is something most of us already know. But we don't know it in quite the way somebody like Judy Gillen knows it.
Gillen knows what's in the transcribed proceedings of that Wisconsin lawsuit brought by the young gay man, including the part where school administrators are described as having advised the boy's parents that trouble of this nature is to be "expected" when a student is openly gay. She knows the pertinent narratives that float up from the central pages of other harassment lawsuits as well: the large-breasted California girl who was regularly greeted at the school doorway and followed through the hall by boys making mooing noises at her; the eighth-grade Texas girl who was repeatedly groped on the school bus by a boy who kept demanding to know what size bra and underpants she was wearing; the seventh-grade California girl who became the subject of a rollicking schoolwide rumor, spread by both boys and girls, about sexual acts performed with hot dogs; the school bus in Minnesota -- in a district down near Minneapolis -- in which 8-year-old girls were being called "bitches" and urged to go home and perform fellatio on their fathers.
That famous North Carolina story about the 6-year-old who was suspended from school three years ago for kissing a classmate on the cheek? Sure. She knows that one too. Gillen rolls her eyes. "For a while I got asked that question just about every place I went," she says. " 'And what do you think about that? How stupid can they be?' And frankly, I agreed with them. It was stupid." For the record: the school subsequently recanted the suspension, and the Lexington, N.C., school district revised its sex-harassment policy to take into account the age and maturity of the accused harasser. But that's not what lingers in the memory about the North Carolina story, is it? There's a reason people latched on with such enthusiasm to the image of school officials banishing a 6-year-old for bussing his classmate on the cheek: it was simple. Norman Rockwell, felled by the overreaching hysterics. Much simpler to think about than packs of junior-high-school boys mooing at a schoolgirl's breasts.
How Awful Behavior Got Worse and Became Harassment
When Judy Gillen is called upon to explain herself before gatherings of parents -- not hostile gatherings as a rule, they don't exactly mind that there's a specialist, but the very phrase "student-to-student sexual harassment," which nobody had ever heard of 15 years ago, perplexes people and makes them start invoking their own sensible, litigation-free childhoods, when lawyers didn't hover in the wings waiting for children to complain that their feelings had been hurt -- she has three things to say.
First: It's worse now, being a kid, what goes on in schools. It's worse not just because students have access to assault weapons, but also because the culture heaves raw, explicit sexual imagery at children from sources as diverse as prime-time television, pop music, video games, movies, billboard advertising, the Internet and talk radio. When people old enough to have children now were in school, kids were offensive to one another, kids wounded one another emotionally, kids were raucous and lewd and spread rumors and talked about sex when they thought they could get away with it -- but not like this. In the Davis case, what the boy accused of harassment did -- what the Georgia school officials are accused of ignoring, despite repeated pleas for help from the girl and her family -- was to spend five months directly and explicitly pressuring his classmate to have sex with him. From the Davis plaintiff's brief to the Court: " ... repeatedly attempted to touch LaShonda's breasts and vaginal area, ... told her in vulgar terms that he want[ed], ... to get in bed with her, ... placed a doorstop in his pants and behaved in a sexually harassing manner."
All of these allegations have yet to be proved in a court of law; the two sides in Davis were fighting about whether harassment charges could be brought under Title IX. But the suggestion that an 11-year-old boy might make advances as crude and aggressive as a grown man's comes as no surprise to Judy Gillen, nor to anybody else who has read the details of those lawsuits: something truly has changed, she tells those gatherings of the perplexed, and it starts far younger than you think, and it's not confined to rough inner-city schools. "The kids today are not the same kids we dealt with 15 years ago," Gillen says. "One of our assignments has been just to send kids home to watch television for an evening, and put down hatch marks for every swear word, every put-down, every direct sexual reference, everything that is derogatory against another person. And the fallout the next day is: 'Can you believe it?"'
Second: At the same time that students' behavior was growing more aggressive and lewd, a new vocabulary was being imported into the schools to describe certain forms of sexually charged hostile interaction between students, and this vocabulary -- this way of thinking about the rights and obligations of individual students and the adults who are supposed to supervise them -- comes directly from sex-harassment litigation in the workplace. For a lot of reasons, this makes for a troubling and imperfect fit. But here it is, and parents need to get used to it, the way we're getting used to the idea that a business executive can't go on thinking it's cute to pat his female colleagues on the buttocks as they walk by. Under the schoolhouse code of conduct implicit in the new vocabulary, the boys don't get to move their seats away from the lone girl in the auto mechanics class and let themselves be overheard muttering, "The bitch might break a nail and start crying" (that's from a sexual-harassment curriculum manual); girls don't get to humiliate a boy on the school bus by speculating loudly as to the modest size of his penis (that's from a drivers' instructional video), and boys don't get to pass around annotated lists of the school's 25 Most [expletive] Females (that's from an actual case brought before the Minnesota Department of Human Rights -- the financial settlement, paid by the school district to the senior class girl who brought the complaint, was $40,000).
The expression "boys will be boys" frequently comes up at this point in the discussion, even though in Gillen's experience the perps, especially in the vicious-mouth department, are as likely as not to be girls. And Gillen's job is to answer: Not that way. Not anymore. "It's a whole new set of game rules," Gillen says. "The fun between all of us has sort of taken on a new dimension. You have to be so careful. You feel like you're walking on eggs: 'If I wanted to flirt with you, how would I go about it without offending you?' 'My God, maybe I just better not do anything anymore.' That's been a lot of the typical responses I've had."
Third: As an employee of the Duluth Public Schools, Gillen has a closer for the unconvinced, more in the nature of a blunt instrument. If this still doesn't make sense to you, if you're still not seeing the wisdom of requiring young people to learn at school some version of the behavior protocols the workplace will demand of them, too bad. There are lawyers hovering out there. Parents retain them. The lawsuits show up in a variety of forms: negligence, violation of state discrimination laws, deprivation of constitutional rights and sex discrimination under Title IX. "When I cite court cases, and the outcomes, and the emotional damage the harassment has done to victims," Gillen says, "I don't get much argument."
Which brings us to the student-to-student sex-harassment settlement that helped inspire Judy Gillen's job. The harassment involved bathroom graffiti; Gillen is discreet about discussing it in any detail, since a number of the suit's central characters remain her colleagues to this day. The bathroom graffiti story was broadcast years ago as an ABC movie for television; it was slightly fictionalized, given the title "Boys Will Be Boys" and run as an afternoon special, deliberately timed to reach a national audience of children. Sample exchange from the script:
li: (nervously) ... which is why I was hoping maybe you could do something about it.
Mr. Pritchard: You know, Ali, boys do that kind of thing. No one believes any of it.
Ali: (respectfully) But they do. People look at me ... they talk about me and tease me all day long. They treat me like it's true.
Mr. Pritchard: I'm sorry to hear that. But we can't stop boys from writing in the bathroom. It's ... impossible.
How the Graffiti About Katy Lyle Changed Everything
There's a legal principle hiding in those lines of "Boys Will Be Boys" dialogue, although it isn't fully unveiled until later in the plot. The legal principle, which has informed every one of the scores of lawsuits, administrative complaints and Office for Civil Rights rulings that have accumulated under the general label "student-to-student sex harassment," can be impertinently condensed as: Mr. Pritchard, You Have to Stop It -- or at Least You Have to Try. A lot of people are still arguing about this principle, Justices Kennedy and O'Connor most recently and famously among them, and to understand its controversial primary tenet -- that the law ought to force the Mr. Pritchards of the world to sit up and pay attention when one student complains of harassment by another -- it may be helpful to go back a decade and recap what happened to the real Ali, whose name is Katy Lyle.
Lyle is 27 now, an attractive and articulate young woman who continues to live in the Duluth area. She teaches music to elementary-school children. She was 15, a sophomore at Duluth Central High School, when friends advised her in the spring of 1988 that someone had written obscene graffiti about her on the wall of a stall in the second floor boys' bathroom.
The way Katy Lyle tells the story, it was not long afterward that she saw how certain boys were staring at her, or shying away from her in the hallways, or snickering when she walked past. "And that's when I started thinking: 'What's wrong with me?' "Lyle says. "You know, the way girls do. 'Am I fat? Is it my hair?' But then when the girls started shying away, that's when I started making the connection."
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Graffiti left their mark on Katy Lyle.
Photograph by Alan Weiner/Gamma Liaison
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In the short history of sex-harassment law, 1988 was a long time ago, and it bears remembering how novel many people still found the terminology then, even when it was being used to describe the behavior of adults. The phrase "sexual harassment" was invented during the mid-1970's by a group of Cornell University women looking for a way to characterize the treatment of a campus employee who had been refused repeated requests to be transferred away from a colleague who was hounding her. In 1986, two years before Lyle discovered the graffiti about her, the Supreme Court handed down its very first ruling on sexual harassment in the workplace, in Meritor Savings Bank v. Vinson, a case brought by a bank employee who testified that for four years she had been aggressively pursued, fondled and forced into sex by a male supervisor at the bank. The Court's unanimous ruling in Meritor contained two crucial findings. One: Workplace sex harassment is illegal because it's a form of sex discrimination in employment, prohibited under Federal law by Title VII of the 1964 Civil Rights Act. Two: Illegal workplace sex harassment comes in two forms, either "quid pro quo" -- this for that, more commonly understood as "sleep with me if you want the promotion" -- or "hostile environment," a term that was to be argued over in many subsequent cases. The broader meaning was alarmingly clear to many employers: if the sexual atmosphere in your workplace makes even one person feel bad enough, it's going to cost you a lot of money.
Lyle v. Independent School District 709, the complaint filed by Katy Lyle's parents with the Minnesota Department of Human Rights in October 1989, was one of the first efforts in the United States to try out the proposal that students in school might be legally held to the same sex-harassment standards as employees in a workplace -- that a high school full of teen-agers, some of them brutish or foulmouthed or willing to write personalized obscenities on a bathroom wall, might be legally regarded as a form of "hostile environment." This is an idea that might fill some adults with careering, comically horrible memories of their own school years (well, of course it's a hostile environment, anybody who ever went to school knows that, adolescence itself is a hostile environment, but so what?), and even Katy Lyle says she was startled when a local rape crisis counselor, whom Katy had called for advice even though no physical assault had taken place, first used the new legal vocabulary to describe what was happening to Katy at school. "I always thought 'sexual harassment' happened in the workplace," Lyle says. "Those are the pictures they show you: a guy with a suit and tie, a secretary with a short skirt, and he tells her she has to do certain things or she'll get fired. I remember thinking about that, when I first found out what this was."
The ordeal of LaShonda Davis prompted the recent Supreme Court decision.
Photograph by Alan Weiner/Gamma Liaison
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Exactly what did happen to Lyle at Central High remains under dispute, as Duluth public- school officials have never publicly agreed with the Lyles' account, and the school principal, the real-life official fictionalized as Mr. Pritchard, who has since moved on to a districtwide supervisory job, politely but emphatically denies interview requests. Everybody does agree that someone wrote obscene graffiti about Katy Lyle in the boys' bathroom; the Lyles say they never learned who wrote it or why, but at one point, long after Katy's mother placed her first distressed call to the principal, she entered the bathroom on a day when school was out so that she could see for herself the writing that covered a substantial portion of one stall's inside wall. "Slut" was the mildest, most old-fashioned of the slurs; there were pornographic references to dogs, to farm animals, to Katy engaging in sexual relations with her brother. "It took my breath away," Carol Lyle says. "I just burst into tears." The graffiti stayed up -- not all of it, but enough for some portion of the obscenities to remain legible -- for 16 months, encompassing two full summers and Katy's entire junior year.
So here's where the Mr. Pritchard principle comes in. It was not actually the writing of the graffiti that most infuriated Katy Lyle's parents; it was not the obscene drawings that began landing on Katy's desk during class, nor the folded notes demanding sex, nor the kids doubling up in laughter at the sight of Katy eating a banana in the cafeteria, nor the boy who yelled across the school's crowded entrance hall, "Hey, Katy, I took a [expletive] in your stall this morning!" What most infuriated Katy's parents was the school official who, in a district that actually had a written public-school sex-harassment policy in place, could not seem to do anything -- who for nearly a year and a half could not manage what seemed to the Lyles the simple act of cleaning graffiti off a bathroom wall. The Lyles began keeping an increasingly agitated record of their pleas to have the graffiti removed (July 14, 1989: "To our total disbelief, the graffiti was still there!").
Eventually the Duluth schools' lawyer was obliged to assemble a written chronicle, too, and between the two records there are hints as to the nature of the long delay: the principal's assurances that something would be done; the custodial crew not getting around to it; a janitor finally washing off the graffiti that was inked on the wall (as opposed to being scratched into the paint); more graffiti reappearing after the washing; Katy's older brother, who was in college, storming into the high-school bathroom with some cleaning chemicals to scrub at the graffiti himself; the wall not undergoing a paint job to cover the scratched-in graffiti because by contract custodians didn't paint.
Veterans of sexual-harassment theory, the academics and lawyers who developed the earliest lawsuits and training manuals, like to talk about the power of naming, of changing the nature and dimension of an act by calling it something new. ("That seemed very important," says Eleanor Linn, a University of Michigan gender equity specialist who participated during the mid-1980's in some of the first student-on-student studies. "We talked a lot about it: the thing that is not named is not recognized.") And a decade ago, even in the earnestly well-intentioned city of Duluth, the Katy Lyle graffiti problem was "viewed as a physical plant issue," as the schools' attorney, Elizabeth Storaasli, puts it. There is no evidence that anyone actually said, "Boys will be boys," but Carol Lyle remembers a custodian trying gruffly to comfort her as she was standing in the boys' bathroom staring at the scrawled-up wall. "After all, this is a high school," Carol Lyle says the custodian told her. "This kind of thing ought to be expected."
It was not long after Katy Lyle heard about the bathroom graffiti that she saw how certain boys were shying away from her in the hallways, or snickering when she walked past. 'And that's when I started thinking: What's wrong with me?'
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Properly contracted painters did eventually come to Central, the graffiti disappeared and Katy finished her senior year without further incident and moved on to the University of Minnesota campus in Duluth. But her parents, who say they spent too many evenings watching Katy shut herself into her room to cry, decided to do what now comes naturally to American citizens who want to kick an institution they believe has done them wrong: they got a lawyer.
Their claim to the Minnesota Department of Human Rights, which the Lyles filed in anticipation of a lawsuit in state court, asserted that leaving offensive graffiti visible for so long constituted a form of illegal sex discrimination -- in essence that the principal at Central bore the same ethical and legal responsibility as an employer who lets men leave obscene notes and pictures on a female co-worker's desk. And when state investigators released a finding siding with the Lyles, the Duluth school board elected to make history by settling rather than making history by carrying the battle into court. "It was clear that the state was going to see this as a test case," Storaasli says. "And at that point the board had determined that they did not want to become the test case."
Under the Lyle settlement, the Duluth school board agreed to a payment of $15,000 as compensation for what the paperwork carefully referred to as Katy's "alleged pain and suffering." Jim Lyle recalls feeling uncertain about how much to ask for: some workplace sex harassment cases were commanding spectacular jury verdicts and settlements, sums of six and seven figures, but the Lyles decided that if they were going to set national precedent by making a public-school district pay for its own attitude problem -- for its failure to see a certain kind of injury as urgent and serious and worthy of immediate intervention -- the dollar amount ought to be both big enough to attract attention and modest enough to keep from outraging taxpayers. Jim Lyle thought $20,000 sounded about right. When the district suggested $5,000, the Lyles dismissed the offer as insulting. "It didn't dig deep enough," Carol Lyle says. "It had to be more than that to say something."
How Student Harassment Got to the Supreme Court
When the Supreme Court took up the issue during the Davis oral argument last January, the justices, most of whom have reared children themselves, all of whom have been children themselves, at times sounded flummoxed. Here was Justice O'Connor, asking the first question of the argument, grilling the National Women's Law Center attorney, Verna L. Williams: "I'm sure that schoolchildren nationwide tease each other, and little boys tease little girls, and so forth throughout their years in school. And is every one of those incidents going to lead to some kind of a lawsuit?"
No, replied Williams, who was representing the family of the Georgia schoolgirl, LaShonda Davis; there are workplace code words now to help us draw the line: "severe," "pervasive," "objectively offensive to a reasonable person." But Justice Antonin Scalia persisted: "Gee, but little girls always tease little boys and little boys always tease little girls. That's pervasive." Williams: "It's pervasive, but it is not severe." Scalia: "In my experience it's severe."
And Williams began to answer, but Scalia interrupted: "Are you going to apply a reasonable -- a 'reasonable teen-ager' standard? Is that the criteria?" There was chuckling in the courtroom, but Scalia had gone straight to the imperfect fit problem -- the challenge of trying lift rules and principles devised for adult workplaces and somehow force them onto the messy emotional lives of schoolchildren. A good many laws and legal terms are being tossed around in these cases, but nearly every one of them was first articulated before it had occurred to anybody to think of the behavior of teen-agers, or fifth graders, or children even younger, as the kind of "harassment" that might be addressed in court. Title IX, for example, was adopted as part of the 1972 Federal education amendments; it prohibits sex discrimination in any educational institution receiving Federal funds. The word "harassment" does not appear anywhere in Title IX, which was drafted by people worrying about more conventionally measured forms of discrimination in education -- things like unequal allocation of scholarship money or athletic opportunities.
Twice in the years before Davis, when asked whether a school's failure to stop the sexual harassment of a student could be regarded as discrimination for purposes of a Title IX lawsuit, the Supreme Court ruled that it could -- and that a person bringing such a lawsuit could collect monetary damages as compensation. But the harassers in those cases, one decided in 1992 and the second in 1998, were adults. Nasty allegations, too: young female students (one in 10th grade, one in 8th), older male teachers, "coercive intercourse" in private offices at school, student and teacher caught in flagrante by the police.
The justices argued among themselves about how high to set the bar for such cases, about how difficult it should be to bring a harassment-based Title IX suit against a school district, but there was no argument at all about the working label for these girls' experiences -- about whether a 14-year-old schoolchild could legitimately be said to have been sexually harassed. Adult teacher, in a position of power, repeated intercourse: no issue.
Then Davis threw the Mr. Pritchard question at them -- one kid going after another, school officials unwilling or professing helplessness to intervene -- and the consensus fell apart. On the basis of the allegations in the complaint, Davis v. Monroe County Board of Education looks like one more case with details to wince over: LaShonda Davis complaining repeatedly that a boy identified as "G.F." has been propositioning her in class; the children's teacher refusing for three months LaShonda's requests to be moved from her assigned seat beside G.F.; LaShonda's grades dropping and her father learning that she has written a suicide note; G.F. subjected to no school discipline at all until Mrs. Davis finally has him charged with sexual battery, to which he pleads guilty.
Nonetheless, they're both children. Is the law capable of fashioning a rule for hanging the "sexual-harassment" label on the things an 11-year-old boy says and does to the girl in the next seat?
Justice O'Connor's majority opinion used the "severe, pervasive, objectively offensive" language -- it has to be disruptive enough to keep a kid from the equal educational opportunities Title IX guarantees -- but Kennedy wouldn't buy it. "Schools are not workplaces, and children are not adults," Justice Kennedy protested in his adamant Davis dissent, which Scalia joined, along with William Rehnquist and Clarence Thomas. "A teacher's sexual overtures toward a student are always inappropriate; a teen-ager's romantic overtures to a classmate (even when persistent and unwelcome) are an inescapable part of adolescence."
Well, that's the crux of it, isn't it? "An inescapable part of adolescence." When Judy Gillen printed Davis v. Monroe County Board of Education from her computer the afternoon the ruling was announced, she marked up that passage in bright orange highlighter, it made her so mad. "I almost came out of my chair when I read that," she says. Here she is with all her materials, bulleting the principles she's trying to get across --
Harassment may include:
ï Unwanted touching
ï Verbal comments, name-calling
ï Spreading sexual rumors
ï Gestures, jokes or cartoons
ï Too personal a conversation or note
-- and here are four justices of the United States Supreme Court insisting on the "inescapable part of adolescence" argument, as though surviving into adulthood carried with it some implicit, immutable risk of being mooed at or urinated on or leered at by a boy with a doorstop in his pants. "It's like: 'It's been O.K. in the past, it was O.K. for me, it's been O.K. for my kids, so what's so bad about it?' "Gillen says. "They haven't got a clue how degrading these remarks can be."
It's an enormously difficult thing that people like Judy Gillen are trying to do in modern schools -- to teach children and adults alike a vocabulary that somehow separates benign vulgarity and flirting from behavior that escalates into humiliation or fear. But at its core the message she has to deliver -- the message rephrased over and over in the harassment manuals, including the comic-book-style kids' pamphlets with cover exhortations like "Nobody has to live with sexual harassment at school" -- is simpler and less elusive than many of its critics give it credit for. The message is: There is a certain kind of lousy feeling that ought not be inescapable, at least not in school, not when adults are supposed to be watching out for you. "Talk to a trusted adult," reads one manual. "Get help from an adult if you need it," reads another. "Tell someone and keep telling," reads "Flirting or Hurting?" the manual mentioned in the Davis minority opinion, adding a checklist of other suggestions for the student who might in an earlier era have been advised to lighten up and take it like a kid: telling the harasser directly to stop, keeping a written record of the incidents as they accumulate; writing a letter to the harasser and having it delivered by an adult.
A final suggestion from this checklist: Get a lawyer. The language in the manual is actually much less pugnacious than that ("You have the right to file a complaint with the U.S. Department of Education's Office for Civil Rights . . . or to bring a lawsuit under federal law Title IX"), but in the end it is the threat of a lawsuit that has pushed this enterprise the hardest and fastest.
And it's a real nuisance, that threat, no question about it. Invisible hovering lawyers make oppressive officemates for anybody who works in a public school, especially since legislation and legal definitions generally organize human behavior into categories far neater than the ragged multipart dramas that traipse in and out of a typical school counselor's office. Is there a complaint form for "Made me feel like quitting school by repeatedly inviting everybody except me to parties?" No. Is there a complaint form for "Spent every football practice for the last two years sidling up to me and hissing that I was a stupid geek who had no business being on the team?" No. The complaint forms, and the new post-Davis big Federal stick of deal-with-this-or-risk-a-lawsuit, kick in only for the verbal and emotional wounds that can be fit somehow into one of the legally recognized categories of discrimination -- gender, race, religion, ethnicity, sexual orientation. There's no working warranty that everybody makes it to age 18 with spirits intact; maybe there should be, but that seems to be beyond the conceptual reach of the law, which has so far laid out what even the National School Boards Association agrees is a fairly reasonable base line for school administrators trying to avoid getting sued: Don't ignore a complaint.
That's the essence of the Davis instruction: Don't ignore it. You don't have to fix everything successfully; you don't have to create a school in which nobody ever looks down blouse fronts or draws crotch pictures on binder covers; you don't have to turn all schoolchildren into sensitive, caring, gender-enlightened New Persons. But you must take it seriously, when they come to you with the thing that's troubling them, and if it is bad, then you must intervene at least actively enough to avoid being accused of "deliberate indifference." You must, at risk of a Federal lawsuit charging your school with sex harassment under Title IX, "respond to peer harassment in a manner that is not clearly unreasonable."
It will take a great many lawyers a very long time to work out precisely what all that language means; that's what usually happens when new legal standards are set, and in the meantime some of those lawyers will end up costing school boards good defense money that might have been put to better use elsewhere. Children and teen-agers are going to go right on being crude to one another; school counselors and principals are going to go right on being asked to undo attitudes and incivilities that are hammered into their students the other 18 hours of the day, and teachers like Judy Gillen will go right on knowing that their careful harassment presentations are being delivered at least some of the time to bored schoolchildren who roll their eyes and chortle about it afterward -- or who file away select parts of the message as potential weaponry against classmates who happen to tick them off.
How the Milk-Bag Case Was Settled
There's one way of looking at those 12-year-old girls signing complaint papers on the milk-bag boy from the Duluth school cafeteria: as tattletales, classroom scolds, the inevitable byproducts of a generation being taught to take umbrage at just about anything. But here's what happened after the girls filed their complaint. The boys at the center of the action were summoned to the principal's office for a mild chewing-out, told that behavior of this nature was offensive and unacceptable in school and sentenced to an in-school suspension, which required taking one day's classes and lunch in a detention room. The girls were told that their complaint had been attended to, were reminded in passing to keep their language out of the gutter, too, and were given to understand what in an ideal world all schoolchildren ought to know -- that some grown-up at school is ready to listen, seriously, without shooing them away amid dismissive reassurances about the inescapable parts of adolescence.
Repercussions? None, so far. Event over. "I think we've done an excellent job of educating kids, that they're willing to report that," Judy Gillen says. "I don't think we'll see those boys involved in anything again." If she's right, then maybe this is how the system, clumsy and heavy-footed as it is, is supposed to work.
hat follows is a very small story, lightly censored but entirely true, that comes with a lot of very big stories attached. The setting for the very small story, which we will refer to as the Milk-Bag Incident for purposes of the arguments it is likely to set off, is a public middle-school cafeteria in Duluth, Minn. The time of year is mid-February. Because it is lunchtime, numerous schoolchildren are crowded together at the tables with their food and their milk, which in Duluth is doled out not in cartons but in single-serving plastic bags with straws.
