Here is a very small story — which we will refer to as the Milk-Bag Incident — set in mid-February in a public middle-school cafeteria in Duluth.Children are crowded together at tables with their food and their milk, which in Duluth is doled out in single-serving plastic bags with straws. At one cafeteria table, set together in close quarters amid the commotion, are several boys, two girls and a milk bag. One of the boys picks up the milk bag. He shapes it into a recognizable replica of manly genitalia, including scrotum.The boy announces his achievement to everyone within earshot, which includes the girls at his table, and points out that the genitalia he has sculptured is fully tumescent. (The boy’s exact choice of words will not be printed here. The boy and his friends, brandishing the milk bag, fall about in general hilarity. The bell rings; lunch period comes to a close.
Sometime in the course of the next few days, the girls — like the boys, these are sixth graders, 12 years old — appear at the school vice principal’s office to make a complaint. Do the girls use the term “sexual harassment”?
Possibly, for they have encountered these words in a middle-school assembly and one or two contemporary novels assigned at their grade level, but probably not. Maybe they use the word “harassment,” or maybe “gross.” In any case they understand that there is a Procedure, and the vice principal, having paid close attention to the training she has received, now sets the Procedure into motion: She pulls out a harassment complaint form.
(Sexual harassment, sexual advances or other forms of religious, racial or sexual harassment by any pupil, teacher, administrator or other school personnel, which create an intimidating, hostile or offensive environment, will not be tolerated under any circumstances.)
The vice principal calls up the Duluth school system harassment specialist, a 58-year-old former special-education teacher named Judy Gillen.
The Milk-Bag Incident harassment form will be parked in Gillen’s active complaints folder while the middle-school vice principal, with Gillen monitoring the situation from the downtown office, considers what to do.
Aren’t we overreacting?
Until late April, when the words “student-on-student sexual harassment” suddenly appeared on newspaper front pages, the Milk-Bag Incident would have provoked pretty predictable responses in most outsiders. It would have made them say: Come on; 12-year-old girls running straight for the office because somebody offended them, vice principal nodding soberly and handing over forms to fill out — have these people completely lost their bearings? Or: These are children. They’re supposed to conduct themselves from time to time like hormonally overstimulated jerks.
Then, on May 24, in a case called Aurelia Davis vs. Monroe County Board of Education, the Supreme Court ruled 5-4 that any school receiving federal money can face a sex-discrimination suit for failing to intervene energetically enough when a student complains of sexual harassment by another student. At the center of the typically lengthy and complicated Supreme Court opinions was a rather remarkable and contentious back-and-forth between Justice Sandra Day O’Connor, writing for the majority, and Justice Anthony Kennedy, writing for the minority.
O’Connor said “student-on-student sex harassment” could be a deeply serious matter, affecting a child’s ability to learn; Kennedy said “student-on-student sex harassment” was in essence a phrase that made no sense. O’Connor said school officials who ignored protracted and serious harassment could be sued under Title IX, the federal law prohibiting sex discrimination in educational institutions; Kennedy said the U.S. Supreme Court had no business poking around in matters of local school discipline.
“After today,” Kennedy wrote, “Johnny will find that the routine problems of adolescence are to be resolved by invoking a federal right to demand assignment to a desk two rows away.” He said “sex harassment” is a term that properly applies to the behavior of adults, not to children “who are just learning to interact with their peers.” He said one published harassment manual advises that one student’s saying “You look nice” to another could be construed as sex harassment, depending on the tone of voice and other variables.
Flirting or hurting
Gillen is familiar with the manual Kennedy quoted so disapprovingly. It’s called “Flirting or Hurting?” and has sold about 20,000 copies to U.S. schools since it was first published in 1994. Gillen uses elements of it when she conducts sex-harassment workshops for middle-and high-school students. The line Kennedy lifted is part of a chart used to inspire student argument about possible differences between flirting and harassment.
Flirting, suggests the chart: “You look nice.” “Like your hair.” “Wink.” “Wave.” Harassment, suggests the chart: “Grab own crotch.” “Pinch.” “Lip licking.” And maybe, depending on the tone of voice, the facial expression and who else is around: “You look nice.”
Kennedy may have a real problem with this. So may a great many other people trying to understand the boundary lines defining sexual harassment among adults. But Gillen has no problem with it.
“I mean, get real,” says Gillen, who read every word of Davis vs. Monroe County, including the long dissent, the afternoon the decision was handed down. “We need to teach responsibility, we who work directly with kids, and shaping kids’ behavior and kids’ lives. Because behavior is learned. We can’t accept that kind of behavior.”
Quite a few public schools are consulting harassment specialists these days. They’re supposed to, or somebody will have a problem and nobody will know what to do about it and there will be a complaint and state or federal investigators and a lawsuit against the school district and maybe an expensive settlement.
At least a dozen reported lower court lawsuits had been filed before the Davis ruling, with its announcement that student-to-student Title IX suits may proceed if it can be shown that school officials exhibited “deliberate indifference” to sex harassment that took place on their watch. Now there will be many more, as school officials scramble to figure out what “deliberate indifference” means.
A Minnesota first
Often the specialist is an outside professional who comes in with manuals and case studies in student harassment. It’s unusual for a school district to have a job title that includes “harassment curriculum,” but Minnesota is particularly aggressive in matters of gender equity, and besides, as far as is publicly known, Duluth was the first school district in the country to pay out a monetary settlement in a student-to-student sex harassment case.
Gillen knows the pertinent narratives that float up from the central pages of many harassment lawsuits. For example, the case of a young Wisconsin man who was recently awarded a $962,000 settlement from school officials. They were found by a jury to have violated student’s constitutional rights by failing to stop what happened to him in junior high and high school after he acknowledged being gay. The boy was taunted, shoved, sworn at, laughed at, beaten up, subjected to mock rape and cornered in the bathroom while other boys urinated on him. School administrators were described as advising the boy’s parents that trouble of this nature is to be “expected” when a student is openly gay.
Gillen has intensely studied many other cases: the large-breasted California girl who was regularly greeted at the school doorway and followed through the hall by boys mooing at her; the eighth-grade Texas girl who was repeatedly groped on the school bus by a boy who kept demanding to know what size bra and underpants she was wearing; the Eden Prairie case in which a first-grader was harassed on the school bus, resulting in a landmark U.S. Education Department ruling against the school district.
That famous North Carolina story about the 6-year-old who was suspended from school three years ago for kissing a classmate on the cheek? Sure. She knows that one too. Gillen rolls her eyes. “For a while I got asked that question just about every place I went,” she says. ” ‘And what do you think about that? How stupid can they be?’ And frankly, I agreed with them. It was stupid.” (For the record: The school subsequently recanted the suspension, and the Lexington, N.C., school district revised its sex-harassment policy to take into account the age and maturity of the accused harasser.)
But there’s a reason people latched on with such enthusiasm to the image of school officials banishing a 6-year-old for bussing his classmate on the cheek: It was simple. Norman Rockwell, felled by the overreaching hysterics. Much simpler to think about than packs of junior-high-school boys mooing at a schoolgirl’s breasts.
In the Davis case, what the boy accused of harassment did — what the Georgia school officials are accused of ignoring, despite repeated pleas for help from the girl and her family — was to spend five months directly and explicitly pressuring his classmate to have sex with him. From the Davis brief to the Court: “. . . repeatedly attempted to touch LaShonda’s breasts and vaginal area . . . told her in vulgar terms that he want(ed) . . . to get in bed with her . . . placed a doorstop in his pants and behaved in a sexually harassing manner.”
That an 11-year-old boy would make advances so crude and aggressive comes as no surprise to Gillen, nor to anybody else who has read the details of those lawsuits. Something truly has changed, she tells gatherings of the perplexed, and it starts far younger than you think, and it’s not confined to rough inner-city schools. “The kids today are not the same kids we dealt with 15 years ago.”
It’s an enormously difficult thing to teach children and adults alike a vocabulary that somehow separates benign vulgarity and flirting from behavior that escalates into humiliation or fear. But at its core the message Gillen — and others like her — has to deliver is simpler and less elusive than many critics give it credit for. The message is: There is a certain kind of lousy feeling that ought not be inescapable, at least not in school, not when adults are supposed to be watching out for you.
And the law has so far laid out what even the National School Boards Association agrees is a fairly reasonable base line for school administrators trying to avoid getting sued: Don’t ignore a complaint.
So how was the Milk-Bag Incident settled? The boys at the center of the action were summoned to the principal’s office for a mild chewing-out, told that behavior of this nature was offensive and unacceptable in school and sentenced to an in-school suspension, which required taking one day’s classes and lunch in a detention room.
The girls were told that their complaint had been attended to, were reminded in passing to keep their language out of the gutter too, and were given to understand what in an ideal world all schoolchildren ought to know — that some grown-up at school is ready to listen, seriously, without shooing them away amid dismissive reassurances about the inescapable parts of adolescence.
Repercussions? None, so far. Event over.
“I think we’ve done an excellent job of educating kids, that they’re willing to report that,” Gillen says. “I don’t think we’ll see those boys involved in anything again.”
If she’s right, then maybe this is how the system, clumsy and heavy-footed as it is, is supposed to work.
–Â Cynthia Gorney is the author ofÂ “Articles of Faith: A Frontline History of the Abortion Wars.”