Peeking in on the just-completed term of the Supreme Court almost smacked of voyeurism as justices grappled to define sexual harassment, rendering contradictory rulings involving schools and businesses.
Do they make these decisions by coin toss?When the cream of the judicial crop is split 5-4 with five varying opinions on how they got there, it makes you nervous about lower rungs of the judiciary.
But then again, this is America - where everyone including Karl Malone and David Locke of KFNZ has an opinion even if they don't dress in long black robes to express it. As the yet-to-be "adjudicated" case between the Mailman and the radio announcer will show, all opinions are not created equal. Those backed by the most gold or biggest gavel usually prevail and may even establish precedent.
It's been nice listening to you, Mr. Locke. Good luck in Albuquerque.
America's form of justice is a quirky system, but at least it's slow. That is a plus if you're on the wrong end of the rope buying time through endless appeals.
Our program also provides sordid spectating, witness O.J. and various harassment cases of late - a salient subject due primarily to the alleged ignominious deeds of our chief executive. In light of the evidence mounting against him, it took chutzpah for Clinton to tell 2 billion Chinese last week that "the struggle for your own character is the struggle for the nation's character." As goes the head of state, so goes the nation?
Is it too late to seek political asylum in Iran - a place not known for Yankee hospitality but where they play superior soccer and render swift, sure justice?
There were several key outcomes from the Supreme Court relevant to the growing and unfortunate problem of harassment that were noteworthy. First, its definition extends to persons of the same gender. Second, a school district cannot be blamed for an employee's inappropriate actions if it does not know about it. Third, an employer may be liable for actions of a supervisor even if the victim does not file a complaint or experience detrimental financial or promotional repercussions.
It is the inconsistency of the second and third points that is troubling. As was pointed out in The New York Times, "the court's rulings inadvertently created two classes of citizens: employees, who are protected from sexual harassment, and students, who are not."
The St. Louis Post-Dispatch called the decision regarding students "reprehensible."
It explained: "From a legal point of view, the court might be able to justify giving students fewer rights than employees because the federal law it was interpreting on schools is different from the one that applies to the workplace. But from a common-sense point of view the distinction is absurd. Why wouldn't the court be especially protective of children?"
The answer? Money. A five-justice conservative majority was more concerned about protecting school districts from damage judgments than safeguarding children from predatory adults. The Supreme Court created incentives for businesses to have clear policies prohibiting any form of harassment, which is good. But it provided disincentives for school districts to do the same.
Unless administrators specifically know about misconduct and react with "deliberate indifference," they are off the hook. It does not matter whether a district has policies or procedures in place or whether it does anything else to prevent harassment. Instead of aggressively rooting out problems, officials are apt to prefer not hearing, seeing or speaking evil since ignorance grants them immunity from liability.
The court's interpretation that schools permitting violations can lose Title IX federal funding if harassment complaints are found valid is of little comfort or redress to youths scarred by reprehensible acts of adults in positions of trust.
Protecting the coffers of public educational institutions from unwarranted raids is one thing. But placing them completely off limits when justified damages are due is another. It appears the "golden rule" prevailed, a fact strongly enunciated by Justice John Paul Stevens in a scathing dissent. He scolded the majority for putting "protection of the school district's purse" above that of vulnerable students. That is an unfortunate indictment of justice at its highest level.