Now 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 beginning 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 — the legal profession’s Johnny-One-Note-Magic-Bullet-Cure for everything, i.e., “Sue for $2 million dollars and call me in the morning.”
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 to snap off the girls’ plastic pop-it beads and try for slam-dunks by tossing them down the girls’ blouses. Today, any male peacock strutting his stuff on the way home from school by cruising past a girl’s house in a souped-up car and revving his engine risks being turned in by a neb nose neighbor as a stalker.
Back in the days before we knew these guys were stalkers and harassers, we thought their escapades were funny, even romantic. We used to thrill to songs like “Born to Run” about “dying on Highway 9 in an everlasting kiss.” and “Leader of the Pack.” Real American memories like the things that happened in American Graffiti — memories we could never have had in a place like China where Mao and his government killjoys at the time were outlawing public handholding. Who would’ve ever thought it could’ve happened here?
The best-kept secret in America is that for many of us being sexually harassed was one of the peak experiences of our lives. 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. For Harry, who went on to fly hundreds of bombing missions in Vietnam, I’m glad he could go on to 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 he’d 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 his Newsday column, “Lunatic Feminists Arise on the Right,” Robert Reno, an ardent support of the Supreme Court’s heavy-duty legislation to protect girls from sexist language and hurt feelings 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 Ingram and Monica Crowley,” women who he designates as “silly,” “lunatic,” “dumb” and “deeply snide.” But these women, bad as they are, are just “irrelevant distractions” compared to the objects of Reno’s real wrath — “the more serious-minded crowd” of women over at the “gloriously right-wing Independent Women’s Forum.” (You have to wonder what would happen to American womanhood without chivalrous defenders like Robert Reno.)
It seems a woman on the Independent Women’s Forum’s Advisory Board had ruffled Mr. Reno’s feathers by writing a Wall Street Journal article in which she remarked 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.”
“Who raised this woman?” Mr. Reno howls. “You’d never hear Phyllis Schlafley come out for kissing or touching in the classroom. She’d cane the whole lot of them.”
“What a mouthful,” he roars on, surmising that the Independent Women’s Forum is some group of crazed right-wing female renegades defending the rights of third-grade harassers. The Wall Street Journal article, says Mr. Reno, “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.” The Court decision “seems the least we can do for the girls who are going to grow up to run this country,” wails Reno, “the way they have run more socially advanced nations, including Norway, Britain, Israel and India.” Reno glosses over the fact that these girl future presidents that 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.
The Supreme Court and columnist Reno believe that repulsive third-grade pests will be cured of their sexism and revolting male behavior once punitive damages can be levied against their school districts. One wonders if he thinks school districts should be liable for a hostile environment created by obnoxious kids who pepper their female classmates with names like Mr. Reno uses, names like “gas bags,” “lunatics,” “dumb,” “irrelevant distractions” or “blond to the roots”?
But don’t worry, Mr. Reno, Laura Ingram, Monica Crowley and the Independent Women’s Forum are tough women, experienced enough at verbal sparring to come back at an irrelevant gas bag like yourself. I’d suggest that when you’re done battling with these women, you might try a really tough bunch of thinkers like the feminist libertarians in the Women’s Freedom Network. Though they’ll disagree with nearly everything you say, they’ll defend to the end your right to say it, with no punitive damages — and no petty comments about your hair.
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.
“This is already the normal state of affairs in the workplace,” says columnist John Leo. “Sexual harassment law has given employers a powerful incentive to act in a defensive manner, warning workers against comments, gestures, office chitchat about the latest naughty joke on a sitcom. Many schools already ban handholding, 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.
The relative nonchalance with which Congress passes sexual harassment laws combined with an impassioned preference for overblown fines is a frightening prospect. Laws are passed with a casualness about the definitions of the acts they are criminalizing and by drifting definitions such as the broadening of sexual assault to mean any unwanted touching. In an article titled “Could You Be The Next Monica?” by Nurith Aizenman in New Woman Magazine, Susan Molinari says she didn’t “set out to make Monica Lewinsky’s life miserable when she pushed through ground-breaking sexual assault legislation five years ago. The Congresswoman only wanted to give a woman accusing a man of sexual assault the chance to bolster her case by showing that he had also attacked other women. Sensible enough — 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. That investigation, in turn, set an unexpected precedent: 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.”
And consider, if you can, this revealing admission by former Congresswoman Patricia Schroeder, D-Colo.: “It was so much more fun to legislate than oversee. You could find many reasons to put more regulations on. We didn’t feel accountable as much as we should have to make sure regulations were being applied reasonably.”
It would, of course, be a gross oversimplification to argue that most cases of school harassment are like the madcap adventures in American Graffiti, 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. Even in American Graffiti, two kids nearly died when their car turned over during a macho drag race. There are, no doubt, serious cases of harassment that need remedied.
In Pittsburgh, there were fraternity parties like those in Animal House, where frat brothers at a local university held “Pig Parties” — parties where the brothers 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 their dates’ motives, eventually realized why they were invited and would flee the party in tears. In cases like these, the punishment should be placed directly at the door of the offending students rather than with the school or with the student body at large 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 a fifth-grade boy who was prosecuted and found guilty of sexual battery in juvenile court, the Supreme Court ruled that the fifth-grade girl could proceed with her lawsuit seeking damages from the school district. School officials, said the Court, must have been informed of harassment and been indifferent to it or ignored it before they could be sued for it, providing a prudent safeguard for educational institutions — a safeguard that’s denied to private businesses which must operate under the “should have known” standard, a standard that says businesses may be sued even if they have no idea that any harassment is occurring in their workplaces.
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 the collateral damage that tramples important quality-of-life freedoms for everyone else? Penalties that focus punishments on the wrongdoers themselves 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.