Bullying or Sexual Harassment?
Using the Davis v. Monroe Case to Illuminate the Differences
& the Dear Colleague Letter (October 26, 2010) from the Office for Civil
Rights of the US Department of Education
ANSWER SHEET
LaShonda’s parents filed a criminal complaint against the boy and also a
federal civil rights lawsuit against the school district for permitting a sexually
hostile environment to exist. In the separate criminal action in Georgia, the 11
year old boy pled guilty to sexual misconduct.
Finally, after five years of legal battles and appeals, the U.S. Supreme
Court, heard this case in January 1999. In a five-to-four decision, issued on May
24, 1999, the U.S. Supreme Court ruled that schools are liable for student-tostudent sexual harassment if the school officials knew about the sexual
harassment and failed to take action. (Davis v. Monroe County Board of
Education, 526 U.S. 629).
Through this decision, plus the frequent policy guidance memos issued by
the Office for Civil Rights of the US Department of Education (1997, revised in
2001 http://www.ed.gov/about/offices/list/ocr/docs/shguide.html; and “Dear Colleague
Letter October 26, 2010,http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.html), sexual harassment in education is defined as “unwanted and
unwelcomed behavior of a sexual nature that interferes with one’s right to receive
an equal educational opportunity.” The behavior has to be severe, OR
pervasive OR repeated to rise to the level of liability for the school district, along
Portions excerpted from Stein, Nan D. (2003) Bullying or Sexual Harassment? The missing discourse of rights in an
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era of zero tolerance, University of Arizona Law Review, Fall 2003, Vol.45, No.3, pp.783-799, and from Locating a
secret problem: Sexual violence in Elementary and secondary schools, in Gender Violence: Interdisciplinary
Perspectives, 2nd edition, (pp. 323-332), edited by L.O’Toole, L.R. Schiffman,& M.L Kitter Edwards (eds.), New York
University Press, 2007. Used with author’s permission.
Copyright©2013 Nan Stein
with “deliberate indifference” on the part of the school officials, once they have
received “actual notice.” A behavior that is severe enough can be a one time
event, but it is likely that a verbal event that happens only once would not rise to
the level of sexual harassment (though it still might be against school rules).
However, sexually harassing verbal behaviors that were repeated and pervasive
might rise to the level of sexual harassment, especially if the behaviors had been
reported to school personnel. Aggrieved individuals can use basically two routes
to address their grievances- either by filing a lawsuit in federal court (which
requires hiring a lawyer), or filing a grievance with the Office for Civil Rights of
the US Department of Education (cost is free but no monetary damage awards
can be awarded to the individual but additional services from the school district
might be granted to the aggrieved individual).
Since the Davis case, school administrators have often been tempted to
label sexually harassing conduct as “rough housing,” “mutual horse play” or
“bullying,” and thereby trying to avoid liability and redress that can only be
afforded through the federal courts. Conduct as egregious as “sac stabbing”
where a middle school boy in Illinois was repeated stabbed in his scrotum by his
basketball teammates (Doe v. Brimfield Grade school & School District #309, in
Central Illinois, federal district court WLK 172225, C.D. Illinois, April 10, 2008),
was characterized as “rough housing” by the school principal and basketball
coach. In another example from rural Iowa which involved three middle school
girls who were repeatedly zapped with a battery operated zapper that produced
black and blue marks on their nipples by three of their male classmates who also
Portions excerpted from Stein, Nan D. (2003) Bullying or Sexual Harassment? The missing discourse of rights in an
era of zero tolerance, University of Arizona Law Review, Fall 2003, Vol.45, No.3, pp.783-799, and from Locating a
secret problem: Sexual violence in Elementary and secondary schools, in Gender Violence: Interdisciplinary
Perspectives, 2nd edition, (pp. 323-332), edited by L.O’Toole, L.R. Schiffman,& M.L Kitter Edwards (eds.), New York
University Press, 2007. Used with author’s permission.
Copyright©2013 Nan Stein
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tried to twist their nipples with their fingers, when the girls raised their arms to
protect their breasts and also used their forearms to push away the on-coming
device held by the boys which the girls knew would hurt them, the administrators
labeled these interactions as “mutual horseplay” (Bruning v. Carroll Community
School District, US District Court for N. District of Iowa, Central Division, 2007).
In these and other cases, school administrators continue to invent other labels,
rather than “sexual harassment” in an attempt to deflect their own and their
school’s liability (see Lyn Mikel Brown, “10 ways to move beyond bully prevention {and why we should},”
Rethinking Schools, Spring 2009, vol. 23, #3; and U.S. Department of Education, Office for Civil Rights (2010, October
26). “Dear Colleague Letter.” From the Office of the Assistant Secretary.
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html).
Where bullying laws exist, they are only state laws, often with voluntary
provisions, and do not carry the weight or prestige of federal civil rights in
education laws. Moreover, most states have a legal provision called “unfunded
mandates” which means that the state legislature can pass a new law but unless
it has designated funding attached to it, that new law does not have to be
implemented by school districts. Such is the case for most state bullying laws.
School administrators are no fools - they prefer to characterize sexual
harassment conduct as “bullying” and thereby avoid liability, and federal court.
Gay and lesbian students have also been winning their cases in federal
court using federal law Title IX against school districts that have permitted
harassing and tormenting conduct to persist. Again, these cases are NOT won
under state bullying laws (which are generally weak) but rather under federal civil
rights in education laws, including federal law Title IX (which is how the Davis
Portions excerpted from Stein, Nan D. (2003) Bullying or Sexual Harassment? The missing discourse of rights in an
era of zero tolerance, University of Arizona Law Review, Fall 2003, Vol.45, No.3, pp.783-799, and from Locating a
secret problem: Sexual violence in Elementary and secondary schools, in Gender Violence: Interdisciplinary
Perspectives, 2nd edition, (pp. 323-332), edited by L.O’Toole, L.R. Schiffman,& M.L Kitter Edwards (eds.), New York
University Press, 2007. Used with author’s permission.
Copyright©2013 Nan Stein
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case was won in the US Supreme Court), as well as under the 14th amendment
of the US Constitution (the equal protection clause, known as “Section 1983”).
These lawsuits against school districts by gay/lesbian students have been
won in California (Flores v. Morgan Hill Unified School District, 2004), Nevada
(Henkle v. Gregory, against the Washoe, NV school district in Reno, NV,
8/28/02), and Wisconsin (Nabozny v. Podlesny, 1996, against the Ashland, WI
school district for almost $1M) with large financial damage awards issued against
the school districts. In addition, some gay/lesbian students have won their cases
against school districts through the Office for Civil Rights of the US Department
of Education (Fayetteville, Arkansas, 1998). (for additional references on these lawsuits, see
attached articles and/or bibliography at the end of this packet).
The right to sue school districts under federal law Title IX was established
in 1993 in the Franklin v. Gwinnett County (GA) School board case in the US
Supreme Court (February 1993), which was a 9-0 decision, and interestingly the
first case in which Clarence Thomas voted. The details of this case involved a
high school girl who was sexually harassed and forced to have sex with her male
social studies teacher on school grounds, but this case established the right to
sue for damage awards under federal law Title IX (Stein, 1999).
Portions excerpted from Stein, Nan D. (2003) Bullying or Sexual Harassment? The missing discourse of rights in an
era of zero tolerance, University of Arizona Law Review, Fall 2003, Vol.45, No.3, pp.783-799, and from Locating a
secret problem: Sexual violence in Elementary and secondary schools, in Gender Violence: Interdisciplinary
Perspectives, 2nd edition, (pp. 323-332), edited by L.O’Toole, L.R. Schiffman,& M.L Kitter Edwards (eds.), New York
University Press, 2007. Used with author’s permission.
Copyright©2013 Nan Stein
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Additional articles/references for more information:
Brown, Lyn Mikel (2009). 10 ways to move beyond bully-prevention (and why we
should). Rethinking Schools, spring, vol. 23 (3).
Davis v. Monroe County Board of Education (1999) 526 U.S. 629.
Pogash, Carol (2004). California school district settles harassment suit by gay
students. New York Times, January 7, 2004, p. A17.
Quinn, Andrew. (2002). Nevada school district to pay student in gay-bashing
case. Boston Globe, August 29, 2002, P. A4.
Stein, Nan. D (1999). Classrooms and Courtrooms: Facing sexual harassment in
K-12 schools. Teacher’s College Press: New York.
Stein, N. (2010). Sexual harassment left behind: What the bullying framework is
doing to civil right laws and framework. Wellesley Centers for Women:
Research in Action, Fall Issue, 6-7.
Stein, N. & Mennemeier, K.A. (2011). Sexual harassment overview: Concerns,
new directions, and strategies. Invited paper, “The National Summit on
Gender-Based Violence Among Young People, April 6-7, 2011 (pp. 1-28).
Washington, DC: U.S. Department of Education. Available at:
http://www2.ed.gov/about/offices/list/osdfs/gbvreading.pdf.
U.S. Department of Education, Office for Civil Rights (2001, January 19).
Revised sexual harassment guidance: Harassment of students by school
employees, other students, or third parties. From the Office of the
Assistant Secretary of Civil Rights. Available from:
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html.
U.S. Department of Education, Office for Civil Rights (2010, October 26). “Dear
Colleague Letter.” From the Office of the Assistant Secretary. Available
from: http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.html
Walsh, Mark (1998). District agrees to protect gay students. Education Week
vol. 17(42), p.30, July 8, 1998.
Walsh, Mark (2003). Administrators not immune in suit over alleged taunts.
Education Week, vol. 22 (31), p. 4, April 16, 2003.
Portions excerpted from Stein, Nan D. (2003) Bullying or Sexual Harassment? The missing discourse of rights in an
era of zero tolerance, University of Arizona Law Review, Fall 2003, Vol.45, No.3, pp.783-799, and from Locating a
secret problem: Sexual violence in Elementary and secondary schools, in Gender Violence: Interdisciplinary
Perspectives, 2nd edition, (pp. 323-332), edited by L.O’Toole, L.R. Schiffman,& M.L Kitter Edwards (eds.), New York
University Press, 2007. Used with author’s permission.
Copyright©2013 Nan Stein
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