By Peggy A. Burns, Esq.

IOLA, Texas - For Debra Rowinsky, one battle was lost on the steps of the U.S. Supreme Court October 7, 1996 but the war against sexual harassment will go on in state court.

The nation's highest judicial body declined without comment to review an April ruling by the U.S. 5th Circuit Court of Appeals in Rowinsky's case against the Bryan Independent School District, in which the court ruled that Title IX of the Education Amendments of 1972 did not apply in incidents of student-to-student sexual harassment. Rowinsky's daughters - now high school seniors in another town - re-filed their case in state court the day after the Supreme Court's announcement.

The new suit is brought under the Equal Rights Amendment to the Texas Constitution - which prohibits denial of equality on the basis of sex, and under the Texas state anti-discrimination law that prohibits governmental entities, like schools, from unreasonably burdening someone because of their sex. When the original case first came before U.S. District Judge Ewing Werlein Jr., the Federal Judge dismissed these two particular claims without prejudice, ruling that they were better suited to be addressed in state court. Rowinsky initiated the first action - which was one of over 1,500 rejected by the high court - after her two daughters were repeatedly subjected to lewd comments, gestures and groping by male passengers as they rode a school bus to Sam Rayburn Middle School. There is currently another school bus sexual harassment case pending in the 5th Circuit Court against the Bryan district.

The U.S. Department of Education's Office for Civil Rights had investigated the case and found the district to be in violation of Title IX in two areas, by failing to take action to end the "hostile environment" created by the harassment and by failing to take "timely action to address the harrasment, which denied female students, because of their sex, equal educational services." The OCR closed the matter when the district offered proposals to rectify the problem.

So-called "friend-of-the-court" briefs had been filed on Rowinsky's behalf by the U.S. Department of Justice, the National Organization for Women and the National Education Association, as well as the USDOE, urging the nine justices to accept the case.

"I know they have a lot of cases and they can only hear a small percentage of them, but if my kids' case knocked on the door, they had to hear the knock," Rowinsky said. "There's a lot more knocking on the door, and sooner or later, they'll have to answer the knock."

Becky Nugent, spokesperson for the BISD, defended the district's actions in the case. "I've got two boys, and I'm a former child myself, and I know that children misbehave," Nugent said. "There's nothing unusual about the atmosphere in this school, and when students in Bryan misbehave, they are disciplined accordingly, and that is not a new practice."

Peggy Burns is staff counsel for Adams Twelve Five Star Schools in Northglenn, Colorado and legal consultant with Education Compliance Group, Inc.

Source: The November 1996 edition of School Transportation News. All rights reserved.