In a year where a woman and an African-American man are serious contenders for the presidency, it seems strange to think that there might be room for improvement in current civil rights laws.
Senator Edward Kennedy and several others appear to think so, introducing the Civil Rights Act of 2008, or S. 2554, into the Senate this January. The act is meant to clarify the language of the Civil Rights Act of 1964 and Title IX, both of which have been instrumental in securing equal treatment of women and minorities in the United States. Unfortunately, however, the protections provided against sexual harassment are proving dangerously inadequate in many schools today.
For most students, the specter of assault looms larger than the threat of harassment; after all, not too many cops hand out pamphlets outlining your legal rights against harassers along with rape whistles at orientation. The trouble is, while the University of Arizona Police Department reports zero arrests for crimes of sexual assault in 2006, a 2005 survey by the Gay, Lesbian and Straight Network reported that 89 percent of college students said that harassment occurs at their schools – and two-thirds of those students reported being harassed. Right now, there are fewer protections against harassment for students than there are for employees, and this deficit has resulted in incredible legal difficulty for victims of harassment.
Title IX, which, along with other applicable discrimination laws, is the basis for the UA’s sexual harassment policy and explicitly bars discrimination based on sex. In a 1992 case the Supreme Court ruled that harassment legislation ought to “”provide individual citizens with effective protection against those practices”” to give schools an incentive to enforce the law. Several rulings by the court since then, however, have resulted in overwhelming legal obstacles for victims seeking damages. Fatima Goss Graves, Senior Counsel for the National Women’s Law Center, outlined these hurdles in a position paper for the American Constitution Society For Law and Policy in January 2008.
She notes that in Gebser v. Lago Vista Independent School District in 1998, the Supreme Court determined that in order for the district to be liable for damages, an “”appropriate”” school official had be aware of the harassment and be “”deliberately indifferent.”” This ruling provides a disincentive for schools to enact comprehensive and effective sexual harassment policies, as they are actually more legally protected if they can claim to be unaware of harassment on campus. Additionally, the requirement that the “”appropriate”” official be notified has led to some truly bizarre court decisions – for example, in a case in the Fourth Circuit, the knowledge of a school principal was not enough to meet the court’s standards.
Imagine it this way: Under the current harassment policy at the UA, the same legal obstacles could apply to cases here. If a student were harassed by a teacher, for example, and notified another teacher of the abuse, court precedent would make it extremely difficult for that victim to seek damages, because the teacher who was aware of the abuse could be found by the court to be in a position of insufficient authority. Many harassment victims never come forward – a study at the University of California at Santa Cruz found that 42 percent of rape victims at universities never reported the incident, and only 5 percent reported it to the police. Under the current law, the trauma of harassment not only harms victims emotionally, but also affects their legal ability to seek retribution.
The most dangerous obstacle, Goss writes, is the precedent set by Davis V. Monroe County Board of Education in 1999, in which the court held that in order for a suit to succeed the harassment must be “”so severe, pervasive and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.”” This came back to haunt a student in 2007 in Ross v. Corporation of Mercer University, in which a judge determined that a single incident of rape, while traumatic, was not pervasive enough to qualify for damages under the current law.
The Civil Rights Act has the potential to clarify the protocol for sexual harassment suits, and offers the opportunity to increase students’ protection. The act would allow for full legal compensation for cases of harassment in an educational setting. It would also exempt schools from liability if they could demonstrate that they “”exercised reasonable care to prevent and correct promptly any harassment,”” rewarding a proactive approach rather than willful ignorance.
Students deserve protection at school in at least the same manner as employees at work, and it is both necessary and imperative for Congress to clarify the protections of Title IX and other anti-discriminatory laws. Rather than being a distant, dull piece of legislation with little bearing on our lives, this particular law has the potential to transform our campus – and deserves the attention of students and staff at the UA. In this election-heavy spring, with its emphasis on promises for the future, we should also focus on the decisions being made right now in government, decisions that concern our education and our safety. Our government and schools ought to look out for us – but they deserve our scrutiny and support in return.
Sarah Devlin is a sophomore majoring in Political Science and English. She can be reached at letters@wildcat.arizona.edu.
