Friday, November 11, 2011

 Court on child molesters: Don't ask, don't tell
The Press-Republican, Plattsburgh, NY    c.  June 28, 1998

Five out of nine Supreme Court justices agree: When it comes to sexual assault on children; what the school doesn't know can't hurt it.

Last week, the court ruled that a district can't be sued for damages in a sexual-harassment case, as long as administrators keep their heads firmly jammed into the sand.

The case concerned a girl molested by a teacher beginning when she was 13, a situation which advanced to sexual relations within a year.

When a police officer caught the teacher in the act, the parents sued the teacher and the district, reasoning that the district was responsible for its teacher's actions.

This is a lively issue in sexual harassment.

Common law holds that, if you give a person authority, you bear some responsibility for what the person does with that power, but the question is how much responsibility an employer has for unauthorized acts the employer is not aware of.

In this case, the court ruled that, unless the right person at the district knew exactly what was going on, the school could wash its hands of all responsibility.

Here are the facts, as laid out in the decision:

1. The district was required by the Department of Education, as part of its receipt of federal funds, to institute a policy on sexual discrimination (including harassment) and to make that policy known to employees and students. It did not do so.

2. While the child did not report the sexual contact, other students' parents had complained to the principal about suggestive and inappropriate remarks in the classroom. The principal met with the parents and the teacher and reported on the meeting to the guidance counselor.

3. The teacher had repeated sex with the student, apparently leaving school with her during what were supposed to be regularly scheduled classes.

Here is what the court ruled:

A. Not having the required policy or letting students and teachers know how to report harassment did not mean the district was indifferent to the issue.

B. The complaints about suggestive language didn't count, the court said. The parents had spoken to the principal instead of the superintendent, who was the district's Title IX officer, and the principal passed the information to the guidance counselor but not to the Title IX officer. Officially, then, the school did not know there was a problem.

C. Since only suggestive remarks were reported, the complaint "was plainly insufficient to alert the principal to the possibility that (the teacher) was involved in a sexual relationship with a student."

This is like ruling that a report of smoke pouring from a school is insufficient to alert firefighters to the possibility that the building is on fire.

To continue the analogy, it is like saying that calling the fire station to report the fire is not good enough, unless the fire chief answers the phone personally.

Finally, it is like saying that, if the school is required to put in an alarm system, but fails to do so, it still can't be blamed if children die in the burning building.

Whatever the legal logic of the court's ruling, it is asinine.

It is beyond outrage that the justices of the highest court in the land should exhibit such abysmal ignorance of the matter before them. It also reveals an appalling set of national priorities when the court brings in tekkies and webheads to explain the Internet so that they can rule wisely on the Communications Decency Act, but blunders ahead in this ruling without the most rudimentary knowledge of child molestation.

The court may rule that ice cream is boiling hot, but that will not make it so, nor can the court's absurd ruling in this case change what a school administrator ought to know. Of course the school should have been alerted to a risk, based on those other complaints.

Not every dirty talker is a baby raper, but nobody with any training in education could fail to recognize suggestive comments as a strong indicator of a potential hazard. It is impossible for anyone in education or human services to escape this information without a deliberate and concerted effort to do so.

These administrators did not want to know what was going on in their school, and that willful, hard-won ignorance has saved them.

There is a ray of hope in this otherwise horrific ruling.

The court said only that current law permits the "don't ask, don't tell" defense for those who fail to protect our children. It would only require a new law, not a constitutional amendment, to change that.

Congress must now break the conspiracy of ignorance that aids and abets child molesters.

Joining in the majority opinion  in 'Gebser v. Lago Vista Independent School District' were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

No comments: