BSSN Lawyer Says Supreme Court Rulings Fail To Protect Children From Sexual Harassment in Schools

The U.S. Supreme Court is failing to protect the nation's children from sexual harassment in schools, either at the hands of teachers or fellow students, according to Jeffrey A. Thaler, a prominent Maine attorney with Bernstein, Shur, Sawyer & Nelson who will be published in the August issue of "Trial" magazine on the topic.

"Sexual harassment in the workplace is not confined to the world of adults. Children also experience harassment and abuse in their workplace á school. Unfortunately, according to two recent U.S. Supreme Court decisions, children are afforded less protection from abuse and harassment in their workplace than adults are in theirs," the opening paragraph of the Thaler article states.

Thaler goes on to criticize the nation's highest court for its faulty interpretation of the law in two recent cases involving children and sexual harassment in schools. In both instances, the court wrongly held that "students are separate, less equal and more vulnerable legally (and therefore factually) to sexual harassment under Title IX than adult workers are under Title VII," he writes.

"What about the traditional notion that when parents send their children to "work" each morning as mandated by the state, the school acts "in loco parentis" for the hours the kids are away from their parents," he asks. But again, the Supreme Court held that schools are not in loco parentis under the law, even though most parents assume they are. "Indeed, if a parent sexually harassed a child, the state would probably swiftly intervene and might even remove the children from the home. However, if a teacher sexually harasses children, the Supreme Court has said the courts should rarely intervene or assess monetary damages."

Thaler, a resident of Yarmouth, joined Bernstein, Shur, Sawyer & Nelson in 1997 and practices in the area of general litigation, sexual harassment and environmental law. He is a 1974 magna cum laude graduate of Williams College and received his J.D. from Yale Law School in 1977. This is the second time he has been published in "Trial"magazine on the topic of sexual harassment in schools. In 1997, he wrote about the lack of clearly defined protection under Title IX for children in schools and his hope for clarity from the Supreme Court, which didn't come. Despite these developments, in the upcoming article, Thaler offers some solutions.

"Some courts have found ways to impose a duty to protect schoolchildren on those who run educational institutions," Thaler writes. "For example, the Fifth Circuit has held that the state requires a duty to protect a child when it has in some significant way separated the child from the people otherwise responsible for shielding the child from harm. In other words, by keeping the parents outside of the school door, the state assumes a duty to protect the child."

Bernstein, Shur, Sawyer & Nelson is one of Northern New England's largest law firms with more than 60 attorneys in offices in Portland and Augusta. The firm provides legal services in all major subject areas, including corporate and commercial law, litigation and trials, municipal and governmental affairs and tax and estate planning. The firm also has a substantial practice in intellectual property, employment law, commerce and technology, real estate, health care law, banking, public utilities and other regulated industries.

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