School code of conduct argued; High court hears case of sexual harassment of pupil by classmate; Should federal law apply?; Justices ask whether mild, yourthful teasing could lead to lawsuits


WASHINGTON -- Supreme Court justices, worried about creation of a national code of conduct for schoolchildren, openly resisted yesterday the idea that federal law against sexual harassment should apply when one student taunts or molests another.

Justice Anthony M. Kennedy summed up the reaction of the doubting members of the court, saying the "necessary consequence" of extending "Title IX" to student misbehavior "will be a federal code of conduct in every classroom in the country."

His reaction seemed to be shared by, among others, Justices Sandra Day O'Connor and Stephen G. Breyer. Significantly, if the court is divided on the issue, as it appeared to be, the votes of at least two of those may be necessary to make student-on-student harassment illegal under federal law.

At most, three other justices -- two short of a majority -- appeared to support extending Title IX to student behavior.

Title IX is a part of federal civil rights law that bans discrimination based on sex in any educational program or institution that receives federal funds -- and almost all educational institutions in the country do.

The court heard arguments on the "peer harassment" issue in a case from Forsyth, Ga., involving a girl -- now 16 years old -- who as a 10-year-old fifth-grader underwent repeated sexual taunting and touching by a boy in her class who later was punished in juvenile court.

School officials, despite complaints from the girl's mother, took no action to stop the abuse and declined to adopt any policy against student peer harassment. A federal appeals court ruled that Title IX does not apply.

Women's rights and civil rights groups do not want the court to rule that students themselves violate Title IX by harassing each other. They are asking the court to hold the school system responsible if it fails to react to such harassment when it knows about it and could step in.

Verna L. Williams, vice president of the National Women's Law Center, tried to make the case for expanding Title IX, but no sooner had she started than O'Connor wondered whether every act of teasing by a schoolboy or girl "is going to lead to some kind of a lawsuit."

'A problem for me'

Other justices quickly picked up the theme. Breyer said it was "a problem for me" if the issue of sexual harassment by students was taken out of "the hands of psychologists and educators and given to lawyers and judges."

O'Connor suggested that Title IX seems to apply only when harassment is done by "an agent" of the school system, and that does not include students.

Kennedy also said that, because students are not directly covered by the law, their harassment of their peers would not be "a legal wrong." He said it was "peculiar" to make a school district liable "for an action that is not a legal wrong."

Deputy Solicitor General Barbara D. Underwood, speaking for the Clinton administration in support of applying Title IX, fared no better with the court than had Williams.

The lawyer for the local school board involved in the case, W. Warren Plowden Jr. of Macon, took a hard line against Title IX, saying it should never apply, no matter how much misbehavior by students deprived other students of educational opportunities.

A final ruling on the case is expected before summer.

Police rights debated

In a second hearing yesterday, the court confronted a new layer of confusion in the years-long controversy over how far police may go to search cars, passengers and their belongings when a car has been stopped for a traffic violation.

This time, the court faced the issue of police authority to look into a passenger's purse found in the car during a search, when they had no reason to think its owner had done anything illegal.

The general line of questioning by the justices suggested that they were somewhat inclined to give police some added authority to look into passengers' personal belongings if there was any prospect something illegal would turn up -- but not to separately search the passengers' clothing or person.

1995 case in dispute

At issue is an incident along a Wyoming highway in 1995, in which police stopped a car for speeding and for a burned-out brake light. They saw a drug-dispensing needle in the driver's shirt pocket and decided to search the entire car for drugs. After ordering the two passengers out of the car, they found a purse on the back seat.

Opening it, officers found drugs and drug paraphernalia. The woman to whom the purse belonged was convicted of possessing illegal drugs and sentenced to a two- to three-year prison term.

The state Supreme Court threw out her conviction, saying police had authority to search the car but not the purse, because the officers had no reason to think it contained anything illegal.

Pub Date: 1/13/99

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