The Women's Freedom Network Newsletter July/August, 1999, Vol. 6, Number 4. Punitive Damages: The Only Cure in Town? by Sarah J. McCarthy

N ow that Congress has inserted the Ghost of Anita Hill into every adult male-female interaction, the Supreme Court has decided it's time to go after the kids. Though school officials say that student sexual harassment is a delicate issue given the raging hormones of adolescence that cause otherwise normal teens to perform acts of superhuman stupidity, the Court is on its way toward blurring the line between adolescent bungling and criminal behavior, by making school districts liable for punitive damages if anyone crosses the line. Parents and teachers have been trying to stop teenage stupidity since the begining of time with little success, but Justice Sandra Day O'Connor and four other members of the divided Supreme Court think they have found the cure: their usual standby, punitive damages.

Following classmates in the halls, riding past their houses, hang up calls, boys chasing girls, ponytail-pulling and other stunts were once the signs of teenagers in love. The Smooth Operators in my high school used tosnap off the girls' plastic pop-it beads and try for slam-dunks by tossing them down the girls, blouses. Back in the days before we knew these guys were stalkers and harassers, we thought their escapades were funny, even romantic. When I was 16, my steady boyfriend Harry and his gang, the Mad Mechanics, who wore black and silver bomber jackets and had low-slung cars that made a lot of noise, had heard on the school grapevine that I was going to a party at the home of a guy in my neighborhood. That night the Mad Mechanics drove by the party house in an impressive male dominance display, much like the chest-pounding behaviors they inherited from the Great Apes. The neighborhood guys turned out all the lights and hid under the furniture at the first roar of the engines, but in reality, no one was too scared. The party guys, no slouches at predatory sexual moves themselves, used the darkened house as a chance to take off their shirts and kiss the girls while the Mad Mechanics roared on by.

Sexual harassment? Maybe, but it was the only time in my life that I got to feel like Natalie Wood in West-Side Story in the middle of a rumble between the Jets and the Sharks. As for Harry, who went on to fly hundreds of bombing missions in Vietnam, I'm glad he could go onto adulthood with his Air Force career untarnished by his teenage capers. (Harry and I broke up a few months later when upon arriving at our school picnic I discovered held been riding the Tilt- o- Whirl with some girl that he'd probably convinced SHE was the star of West Side Story. He's now married to a woman who he says was Miss Alabama.)

In a recent column, Robert Reno, an ardent supporter of the Supreme Court ruling, rails against what he calls the new conservative "female TV gas bags" -- women who, he says are, "fetching, wall-to-wall right-wing and blond to their roots, like Laura Ingraham and Monica Crowley," women who he designates as "silly," "lunatic," "dumb" and "deeply snide." He is even more furious at Boston-based attorney Jennifer Braceras, who wrote in the Wall Street Journal that for kids, "A kiss on the cheek, a sexually suggestive remark, the persistent pursuit of a romantic relationship with someone who is not interested, even unwanted sexual touching, all may be normal parts of growing up when the individuals are peers." The Journal article, Reno laments, "savages the Supreme Court decision that prohibits boorish little schoolboys from making repulsive pests of themselves by being sexually obnoxious to the girls in their class." It's "the least we can do for the girls who are going to grow up to run this country," fulminates Reno, "the way they have run more socially advanced nations, including Norway, Britain, Israel and India." He glosses over the fact that these future presidents who he thinks require federal intervention to protect them from third-grade boys will someday have to compete with male presidential candidates who often have been toughened in bigger battles like Vietnam, Desert Storm, Korea and World War II.

You have to wonder what would happen to American womanhood without chivalrous defenders like Robert Reno. One can also wonder if he thinks that calling women "gas bags," "lunatics," "dumb," or "blond to the roots" creates a hostile environment. Fortunately for Reno, those "right-wing" women are a tough bunch who don't seek legal protection from verbal sparring.

What Reno and other punitive-damage aficionados miss, is that those of us who argue against high-priced lawsuits as the magic bullet cure for undesirable social behaviors are not in favor of harassment, but are simply concerned about the unintended consequences of current penalties. The constant threat of financial annihilation via punitive damage lawsuits is not the best environment for freedom to thrive. Schools or workplaces that can have their entire annual budget wiped out by a single child-against-child or employee-against-employee lawsuit will be clearly pushed and tempted to go overboard in trying to control any speech or behavior that could appear questionable or actionable to a creative trial lawyer.

According to columnist John Leo, "Many schools already ban hand-holding, the passing of romantic notes and chasing members of the opposite sex during recess." One teacher's manual says that a child's comment "You look nice" could be sexual harassment, depending on the tone of voice and who else is around. "Next year, kids will be suspended for behavior nobody's ever been suspended for," said Bruce Hunter of the American Association of School Administrators. Beyond concerns about emptying taxpayers' pockets and bankrupting school districts and businesses, we have to wonder what effect this centralized Orwellian behavior control is going to have on the kids. Squelching spontaneous behaviors like teasing, joking and chasing members of the opposite sex is an outrageous thing to do to an entire nation of school children because a few have gone out of bounds.

Instead, on the individual level, third-graders who are truly creating a hostile environment can be punished with school suspensions or some other process without involving the entire school population of the United States in some sort of Americanized judicial version of China's Cultural Revolution. Public hand-holding was outlawed in Mao's China. Who would've ever thought it could happen here?

The unintended consequences of laws sometimes startle even those who craft them. A few years ago, Congresswoman Susan Molinari pushed through groundbreaking legislation allowing a woman who accuses a man of sexual assault to bolster her case by showing that he had also attacked other women. "Sensible enough," writes Nurith Aizenman in New Woman magazine, "but the law defined sexual assault so broadly (essentially any attempt at unwanted touching) that it allowed lawyers in the Paula Jones case to probe President Clinton's past for other violations. Now any woman who's had a consensual relationship with a man accused of harassment could find herself subpoenaed just as Monica Lewinsky was. Molinari was astonished to learn that her law was behind Lewinsky's interrogation. "The law was supposed to target sexual 'assault,'" she said.

It would, of course, be a gross oversimplification to argue that most cases of school harassment are like the madcap adventures in American Graffitti, or that high school or college harassers are harmless guys like Fonzi or Ted Danson on Cheers, or that girls end up feeling like the stars of West Side Story. There are, no doubt, serious cases of harassment that need to be remedied. In Pittsburgh, fraternity brothers at a local university held "Pig Parties" where they would invite the ugliest dates they could find, and the guy with the ugliest girl would win the contest. The girls, at first clueless about it, would eventually realize why they were invited and flee in tears. In cases like these, the punishment should be placed directly at the door of the offending students in the form of higher tuition payments to cover lawsuit expenses.

In the recent sexual harassment case, Davis vs. Monroe County Board of Education, involving behavior for which a fifth-grade boy was found guilty of sexual battery in juvenile court, the Supreme Court ruled that the girl could proceed with her lawsuit seeking damages from the school district. The court at least provided a safeguard for educational institutions by saying that school officials can be sued only if they have been informed of the harassment and failed to take action. (By contrast, private business owners can be held liable even if they have no idea that harassment is occurring in the workplace, under the theory that they "should have known" about it.) Certainly schools have an obligation to protect students from criminal activity. But it's not clear why, unlike physical assault or bullying among same-sex students, unwanted sexual advances should be treated as a federal civil rights matter rather than a question of school discipline.

And so the question remains one with which the divided Supreme Court is still struggling. How can justice be achieved for victims of fifth-grade sexual batterers and pig parties, without trampling on the rights of all of us? Penalties that force the wrongdoers themselves to bear the burden of their misconduct and minimize it to innocent members of society at large would be the optimal solution, but current penalties do exactly the opposite. If the Supreme Court and American law schools would explore possible alternatives to threats of financial annihilation as a wholesale method of behavior control, it would be a good start. At least when the Mad Mechanics showed up they had more than one tool in their box.