LAW : Sex Bias in Schools: High Court Will Decide If Victims Can Sue for Damages

Christine Franklin was a ninth-grader at a suburban Atlanta high school in 1986 when, she alleges, a male teacher began making sexual advances to her.

He was persistent, she says, and even came into her classes to ask fellow teachers if he could “borrow” her for an hour or so. On three occasions, she says, he forced her to have sex at school.

Other teachers were alerted. Some suggested to the principal that he investigate, but others tried to hush up the problem. After school officials interviewed Franklin and several other young women with similar complaints, the teacher resigned in 1988. He was never charged, however.

Franklin pressed her complaint. She filed a lawsuit against the school district and its officials, claiming gross sexual harassment and seeking financial damages. The case of Franklin vs. Gwinnett County Public Schools has reached the Supreme Court and raises a fundamental question: Does the 1972 federal law banning sex discrimination in schools and colleges allow victims of sex bias to win damages?

The answer could have profound consequences. Women’s rights lawyers say female students are still being subjected to discrimination in schools and colleges because the officials often escape criminal prosecution and are not subject to civil penalties for violating the law.

“Money talks. Rights aren’t meaningful without a remedy,” said Ellen J. Vargyas, an attorney for the National Women’s Law Center. “School officials will pay more attention if they can get more than a slap on the wrist.”

Whether the problem is a shortage of female sports teams or blatant sexual harassment by male teachers, women’s rights attorneys say that a few highly publicized damage awards against school officials could help bring about a solution.

BACKGROUND: In 1972, Congress added an amendment to federal education laws. Known as Title IX, it says: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

But the law did not say whether women who were victims of sex discrimination could sue for damages. The only obvious remedy was for the government to cut off federal funds to the offending school system or university.

Though no federal court has awarded a female student damages for sex discrimination on the part of a school district or college, two federal appeals courts have split on the issue in recent years.

The U.S. appeals court in Philadelphia ruled that the 1972 law authorizes damage awards, but the appeals court in Atlanta said it did not. It dismissed Franklin’s lawsuit without a trial, saying the 1972 law “encompasses no more than an attempt to have any discriminatory activity ceased.”

As such, Franklin and her parents could have asked the U.S. Department of Education to order an end to sex harassment at the North Gwinnett High School--hardly an effective remedy, her lawyers say.

School officials fear an outburst of expensive litigation if every dispute involving sports teams or misbehavior by a male teacher can lead to a federal court case. The Bush Administration has agreed, arguing that only Congress can create such a damage remedy.

“There is no empirical basis for a free-floating presumption that the enactment of a statutory prohibition embodies a broad delegation to the courts to fashion whatever remedies they . . . may consider appropriate,” the Justice Department said in its brief on behalf of the school district. If Congress wants to create a damage remedy it must say so, the brief argued.

In recent decades, the Supreme Court has been closely divided as to whether federal laws against discrimination also give victims the right to sue for damages. In the 1960s and ‘70s, the more liberal court was inclined to find an “implied right of action” in federal law. More recently, however, the conservative-oriented court has refused to read such a right into the law.

OUTLOOK: On Wednesday, the justices will hear arguments in Franklin’s case. A decision is expected in the spring.

The Supreme Court will not necessarily have the last word on whether Franklin wins or loses.

If she wins, the case will go to trial in Atlanta. There she will have to prove not only that the teacher molested her, but also that school officials knew or should have known about it. Only then would she be able to recover damages.

If she loses, Congress may well take up the issue. In the Civil Rights Act passed in October, Congress for the first time gave women employees the right to sue for damages in federal court for sex discrimination and sexual harassment. Before, such conduct had been illegal, but victims could not win damages from violators.

If the Supreme Court rules that female students cannot win damages for blatant sexual harassment by school personnel, women’s rights advocates say they will press Congress to amend the law.