man Suzanne Smith, “is the Constitutionrnand the right of the people to expressrndissent.”rnOh —that wasn’t what was going onrnthere? “The people” weren’t expressingrn”dissent”? Interesting logic. ThernACLU’s point, of course, is that peoplernwho agree with ACLU positions expressrndissent, whereas those who disagree mustrnbe expressing something else. Nasty,rnNazi-like tendencies, no doubt. SiegrnheilrnThe importance of prayer in the contextrnof secular education has been inflatedrnby sentimental recollection of pre-rnMadalyn Murray O’Hair days and byrnrestlessness over the lack of easy solutionsrnto our disorders. My own high school, inrnthe 1950’s of semi-blessed memory, wasrnmoderate on the question: prayers only atrnfootball games and solemn occasions likerncommencement; student-led devotionalsrnbefore school for those who desired thatrnsort of witness. And ours was a pretty religiousrncommunity. In secularized, multiculturalrnAmerica, school prayer is clearlyrna far hotter potato than was the case 35rnyears ago. And yet. .. and yet. ..rnThe ACLU’s secular snobbishness; itsrnfailure, and that of secularists in general,rnto acknowledge that others besides atheistsrnand fireethinkers have rights and sensitivitiesrn—such are the wellsprings of resentmentrnagainst the Supreme Court’srnchurch-and-state regime. This, coupledrnwith the persistent sense that piety towardrnthe Divine is fundamental to the life ofrnany civilized community. The newsrnfrom Maryland suggests that at least onernsuch community endures.rn—William MurchisonrnCONSTITUTIONAL LAWYERS likernto tell the story (probably apocryphal,rnsince it’s too good to be true) that, sometimernin the 1960’s, when the WarrenrnCourt was engaged in its effort to rewriternthe Constitution, one crusty old HarvardrnLaw professor, upon reading the latestrnproduct from the Supremes, stormed intornhis constitutional law class, roared likernan agonized beast, threw his con lawrncasebook at the podium, and declared tornhis baffled students that he could nornlonger teach them constitutional lawrnsince there no longer was constitutionalrnlaw. It is said he went on to teach tax.rnThat professor has joined the ongoingrnseminar on federal jurisprudence in thernsky, but one wonders what he would havernthought of the Supreme Court’s recentrndecision in the case of LaShonda Davis.rnMiss Davis, a fifth grader in a Georgiarnpublic school, was allegedly the victim ofrnone G.F., another fifth grader, who “attemptedrnto touch LaShonda’s breasts andrngenital area” and told her that “I want tornget in bed with you” and “I want to feelrnyour boobs.” G.F. continued this andrnsimilar conduct for several months; once,rnin the words of the Supreme Court, hern”purportedly [placed] a door stop in hisrnpants and [proceeded] to act in a sexuallyrnsuggestive manner toward LaShondarnduring physical education class.” C.F.rnalso allegedly “rubbed his body againstrnLaShonda in the school hallway in whatrnLaShonda considered a sexually suggestivernmanner.”rnLaShonda and her mother were unablernto get her teachers or the school administratorsrnto stop G.F.’s conduct, butrnthese incidents came to an end whenrn”C.F. was charged with, and pleadedrnguilty to, sexual battery for his misconduct.”rnPresumably, this was a criminalrnproceeding, though the Court does notrntell us what became of G.F. We do knowrnwhat LaShonda’s mother did, though.rnShe brought a lawsuit against her localrnGeorgia school board for $500,000 inrndamages, claiming that the boardrn(through the inaction of LaShonda’srnteachers and school administrators) hadrndiscriminated against LaShonda in violationrnof federal law.rnThe federal law in question. Title IX,rnregulates the conduct of local schools receivingrnfederal aid and provides thatrn”[n]o person in the United States shall,rnon the basis of sex, be excluded from participationrnin, be denied the benefits of, orrnbe subjected to discrimination under anyrneducation program or activity receivingrnFederal financial assistance.” Title IXrnmakes no explicit authorization of individualrnprivate damage actions such asrnLaShonda’s, nor does it suggest thatrnstudent-on-student sexual harassmentrnamounts to “discrimination under anyrneducation program or activit}’.” Takingrnthis into account, the United StatesrnCourt of Appeals for the 11th Circuitrnruled that LaShonda had not stated arnclaim under federal law.rnNevertheless, late in May, the UnitedrnStates Supreme Court, in an opinionrnwritten by the Court’s first female justice,rnSandra Day O’Connor, reversed, five tornfour, the decision of the 11th Circuit andrndecided that such private actions shouldrnbe covered by Title IX, that “peer sexualrnharassment” allegedly occurred inrnLaShonda’s case, and that the teachersrnand administrators who did not preventrnit could be guilty of the sexual discriminationrnforbidden by Title IX. JusticernO’Connor’s opinion claimed that such arnresult would obtain only where school officialsrn”remain [ed] deliberately indifferentrnto this form of misconduct” and thern”sexual harassment” was “so severe, pervasive,rnand objectively offensive that itrncan be said to deprive the victims of accessrnto the educational opportunities orrnbenefits provided by the school.” InrnLaShonda’s case, however, her onlyrnclaim of deprivation of educational opportunitiesrnwas that “her previously highrngrades allegedly dropped as she becamernunable to concentrate on her studies.”rnThis was too much for the four dissenters,rnwho must have felt like the tometossingrnHarvard Law professor. Observingrnthat the Georgia county wasrnreceiving only $679,000 per year in federalrnaid, Justice Anthony Kennedy declaredrnin the dissenting opinion thatrn”The cost of defending against peer sexualrnharassment suits alone could overwhelmrnmany school districts. . . . As a resultrn[just as in the case at bar] schoolrnliability in one peer sexual harassmentrnsuit could approach, or even exceed, therntotal federal funding of many school districts.”rnUnfortunately, the problems forrnschool districts are even more alarming,rnbecause local school administrators, underrnearlier federal regulatory decisions,rnget it both coming and going. Said JusticernKennedy, “One student’s demandrnfor a quick response to her harassmentrncomplaint will conflict with the allegedrnharasser’s demand for due process. Anotherrnstudent’s demand for a harassmentfreernclassroom will conflict with the allegedrnharasser’s claim to a mainstreamrnplacement under the [federal] Individualsrnwith Disabilities Education Act orrnwith his state constitutional right to a continuing,rnfree public education.”rnThere was no need for Justice O’Connorrnand her meddlesome colleagues tornread this new and noxious federal civilrnright into Title IX. State criminal andrntort remedies are available, and there arernprobably state education policies in placerndesigned to offer relief to schoolchildrenrnsuch as LaShonda. Those of us who hadrnhoped that Justice O’Connor would continuernher earlier practice of guardingrnagainst the encroachment of the federalrnleviathan into areas traditionally reservedrnto state and local governments might bernAUGUST 1999/7rnrnrn