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.

That's me and my big brother, Rick, and my sister Fran, and Mom holding our little brother, Tony, and Pop, patting their dog, Puddles. I'm not sure exactly when this picture was taken, but, if it wasn't the last time we were together, it was close.

Mom and Pop were our mother's parents, but we called them "Mom" and "Pop" because that's what our uncle Teddy called them, and he certainly should know. And "Grandma" and "Grandpa" lived in Pennsylvania, not Connecticut.

Some few months after this picture was taken, a major storm hit Connecticut. Teddy was 13 and old enough to stay home alone while his parents had dinner with some friends, but, when the power went out, he called to let them know and they told him they'd come right home.

When Teddy called some time later to ask if they were coming, it caused some alarm, because they had left after his first call, and it wasn't that far.

Meanwhile, the librarian at the Mark Twain Library in Redding had seen odd lights on the ceiling of the apartment over the library and called for help -- they were from the headlights of a car that had been swept off an undermined bridge on the road just under her windows.

Pop was gone almost immediately, but Mom clung to a tree in the middle of the river for three hours while they tried to get out to help.

And thus it was that I suddenly found myself with a second older brother, my uncle Ted. My mother was 31 at the time, and I cannot imagine how it rocked her world. When the news came, she was told not to come to Connecticut yet, as the roads were impassable and the bodies had not yet been recovered.

There was a memorial service in Connecticut, and then a train trip to Chicago and a huge funeral, swelled by the family's connections in the Catholic community, with two nuns and a priest as siblings of the deceased. And then a second train trip back to the East Coast.

I cannot imagine.

But I went to visit my mother last week, and we drove up to Redding to have a look at the old homestead, seen in the picture.

And since I couldn't imagine, I didn't know what we were going to encounter.

For example, the bridge was a place I remembered because we used to play Pooh Sticks there, each dropping a stick off one side and then racing across to see whose stick would emerge first.

I'm sure this is not her first association with that bridge.

But there were many other memories around the place, starting with the many stone walls I saw in the woods well before we got to Mom and Pop's house. I remembered playing in the woods and climbing over many of those old barriers, including the time we were ambushed by a horde of yellow jackets and came screaming down to the screened in porch where Mom and Pop and our parents were sitting drinking from the colored, milled metal glasses that ended up at our house later.

Bad yellow jackets. Great glasses. Someone had glassed in the porch in the half-century since.

Someone had done a fair amount in that half-century, but, then again, not so much in recent years.

There was a swimming pool that was new to us, but looked like it hadn't been used in a couple of years, though the cover was in place and it only needed a good cleaning. And there was much construction material piled up. The garage and guest house, badly deteriorated, were being torn down.

There was nobody around, but there was a car in the driveway and it seemed logical that perhaps they'd gone to lunch. We walked around a bit, sharing memories, and then were rewarded when a front-end loader came up the drive, one man driving and another clinging on the side.

We explained ourselves, and they explained themselves. One was a son of the owner of the property, the other an employee, and they were in the process of fixing the old place up. The owner not only had purchased Mom and Pop's house, but the property across the way as well, so that he could preserve the quiet, forested atmosphere.

And he had done much of the restoration on the house without making many changes. The winding wooden staircase my mother remembered was still there, and the gabled ceiling on the second floor would likely still thump the crown of anyone who jumped on the beds up there.

We both left satisfied that our memories were in good hands.

ADDENDUM: Here's a link to a piece about the history of the storm as well as the accident itself. Note in the comments here that the NYTimes and my mother have a disagreement over the phone call. Having known both the Times and my mother for many decades, I'm going with her version of events.