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Sexual harassment by a 5-year-old student?

January 04, 2007

Some citizens expressed surprise and outrage last month when a 5-year-old boy at Lincolnshire Elementary School was accused of sexual harassment after he pinched a female classmate's buttocks.

In letters and phone calls, readers have questioned whether a 5-year-old knows enough about sex to harass anyone. They've also asked that the law be changed.

That might not be necessary. In an article on student-on-student harassment done this year for the Association of Texas Professional Educators (ATPE), author David Welsh states that U.S. Department of Education's Office for Civil Rights (OCR) says that "all relevant circumstances" must be considered in evaluating such incidents.

Among other things, Welsh said, OCR recommends considering "the ages and genders of the alleged harassers and victims .."

Welsh then writes that the "The OCR stresses the importance of using 'common sense and judgment' in defining sexual harassment so that schools do not overreact to simple acts of childish behavior or immature conduct."

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None of this is meant to minimize the impact of sexual harassment on its real victims.

The ATPE article says that in 1993, a survey found that four out of five secondary school students had reported sexual harassment by classmates - and the courts are holding schools responsible.

In 2000, in Davis v. Monroe County Board of Education, the U.S. Supreme Court ruled that a school could be held liable for monetary damages if school officials knew about the conduct and responded to what they knew with "deliberate indifference."

For instance, ATPE tells its members that responding to a female victim's complaint by saying "boys will be boys" is not appropriate.

Parents are much less likely than they were 30 years ago to accept such an explanation - and quicker to sue when they feel their child has been put at risk.

We can only suggest that local systems follow federal officials' advice and allow for the possibility that the same act that is sexual harassment if committed by a high-school student might be just a bit of innocent play for a kindergartener.

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