By now it's become a summer ritual. The justices finish the term cramming as if they were still law students. They drop their final papers on the public desk and head off for vacation.
This year the Supremes majored in sexual harassment and got some pretty good marks. But at the risk of sounding like a hard grader, they also deserve some incompletes.In a series of decisions, the court made it easier for workers to sue their companies for sexual harassment than for students to sue their school districts. They gave a grownup who is harassed at work more protection than a child who is harassed at school.
In the workplace cases, a majority of the justices struck a balance that both sides - women's rights advocates and corporations alike - called a "win-win."
Ruling in favor of a lifeguard in Boca Raton and a manager at Burlington Industries, they gave women a powerful tool to sue for sexual harassment. In essence, they said a company could be liable for the behavior of a supervisor even if it didn't know what he was doing.
At the same time, they gave that company a powerful defense. They said that if you have a good sexual harassment policy and the worker doesn't use it, you're off the hook.
In short, the justices offered up a salad of carrots and sticks. A worker now has the right to sue and the obligation to speak up. A company now has the responsibility and incentive to enforce sexual harassment rules.
But in the case of a high-school student harassed by a teacher, a 5-4 majority just about reversed the rules. They made it harder for a student to sue and easier for a school to stick its head in the sand.
The court ruled if a teacher harasses a student, the school isn't liable for damages unless those in charge both knew and acted with "deliberate indifference." The school didn't need to have any policy at all to defend itself. But the student had to complain - not to just any person but to a person with the power to change things.
So this is where we stand at the end of this term paper. Companies are scrambling to beef up sexual harassment policies. But schools? As Justice John Paul Stevens said in his dissent, "As long as the school boards can insulate themselves from knowledge about this sort of conduct, they can claim immunity." Ignorance is the best policy.
Indeed, if you put these two rulings together, a teacher is now better protected from harassment by a principal in her workplace than a student is from her teacher in her study place. Even if it's the same building.
Those of us who did not major in sexual harassment, but rather in common sense, can see a double standard. And a bizarre one at that.
After all, a worker is generally older than a student. She can get up and leave her desk, her office, her job without raising her hand. A student is younger, more vulnerable and less likely to bring her complaint to the top. If anything, the schools, acting in loco parentis, funded by taxpayers, should have the higher standard.
How did the Supreme Court end up with these contradictions? The official rationale is that the sexual harassment cases at work and at school were brought under separate laws. Title IX bars sex dis-crim-ination in education, and Title VII bars it in employment.
The trio of justices who switched sides looked over Title IX and decided that since there was no specific language allowing individual suits against a school system, Congress wanted it this way.
Writing for the majority, Justice Sandra O'Connor sounded apologetic. "No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher," she wrote, "and that the teacher's conduct is reprehensible and undermines the basic purposes of the educational system."
But she went on to state that the school system would remain nearly immune from private harassment lawsuits "until," she added, dropping a hint, "Congress speaks directly on the subject."
I don't believe that Congress ever intended to make the classroom easier than the office for sexual harassers. But this is where we are at the end of Sexual Harassment Spring Semester.
The good news is that Congress will soon be back in session. It's up to the folks on Capitol Hill now to eliminate the double standard. It's the kind of remedial class just right for Capitol summer school.
The Boston Globe Newspaper Co.