A unanimous federal appeals panel has ruled that, in holding a school district liable for sexual harassment, it is not enough to show that a student suffered abusive behavior, no matter how extreme. A plaintiff must also prove the harassment was motivated by their sex or their failure to conform to gender stereotypes.
In an August 9 decision, the St. Louis-based US Court of Appeals for the 8th Circuit, rejecting a challenge to the trial judge’s jury instructions, affirmed a jury verdict in favor of an Arkansas school district, despite uncontradicted evidence that the student was subjected to such a continuing barrage of anti-gay epithets –– as well as some physical attacks –– that he withdrew from school in the tenth grade in favor of home study because he felt unsafe.
According Judge Kermit Bye’s opinion for the court, William Wolfe was “ridiculed at the hands of his fellow students on numerous occasions” between sixth grade and tenth grade in the Fayetteville school district.
“Beginning in sixth grade, Wolfe was harassed several times per week including pushing, shoving, name-calling, and being falsely labeled as homosexual,” Bye wrote. “The name-calling included gender-based epithets such as ‘faggot,’ ‘queer bait,’ and ‘homo,’ among others. Over the years the harassment escalated. In seventh grade, Wolfe was punched and had his head slammed into a window while riding the school bus. In ninth grade, his classmates created a Facebook page called ‘Every One [sic] That Hates Billy Wolfe.’ The picture for the Facebook group showed Wolfe’s face photo-shopped onto a figure in a green fairy costume with the word ‘HOMOSEXUAL’ written across it. Additionally, Wolfe’s classmates graffitied highly offensive, homosexual accusations about Wolfe on bathroom walls and in classroom textbooks.”
Wolfe’s lawsuit claimed the district failed to take adequate steps to deal with this harassment in violation of federal law that provides that “no person in the United States shall, on the basis of sex, be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In some cases, this provision been successfully invoked to hold schools accountable for severe homophobic bullying of gay students. The Supreme Court, however, has established no precedent about the precise proof requirements, apart from a school district’s liability if it exhibits deliberate indifference to the known sexual harassment of a student.
Wolfe argued he suffered sex-based harassment because the anti-gay references were intended to impugn his gender or masculinity. The school district did not deny his factual allegations, but contended his classmates were not taunting and harassing him because of his sex but rather because of his own bullying behavior and unpopularity. The trial judge instructed the jury that to conclude there was a violation of federal law it had to find that the harassment was motivated “by Wolfe’s gender or his failure to conform to stereotypical male characteristics.” The jury, concluding that Wolfe had not met this burden, sided with the school district.
Wolfe’s contention on appeal that the jury instructions were flawed, Bye wrote, “suggests it would be sufficient… to show the harassers used name-calling and spread rumors in an effort to debase his masculinity.” Invoking a famous 1998 employment ruling from the Supreme Court, Bye noted that there same-sex harassment was found to be actionable if the plaintiff could prove that the harassment he suffered was “because of sex.”
Bye does not comment about the facts of the case beyond reciting them. It is noteworthy, however, that when junior and senior high school students want to harass and embarrass a fellow student because he is unpopular or to punish him for bad behavior, they resort to homophobic epithets and taunts. The worst thing you can call somebody at that age apparently remains “faggot,” a part of the public school culture that sadly contributes to teen suicide.
The way federal law was interpreted in this case does little to incentivize schools to take meaningful action when such harassment occurs, because the focus is put on the offenders’ motivation rather than on the impact the abuse has on the victim.