Legal standards against sexual harassment, violence, and drugs in schools and workplaces have become essential prevention tools for management. In order to avoid liability and prevent violations, employers and educators need to set the bar far higher than legal standards for fear of inadvertently overstepping the legal line. Anyone who has practical experience trying to enforce a zero tolerance policy without becoming draconian about it knows that the line is fuzzy at best.

For example, in Harris v. Forklift, the seminal case describing the contours of a hostile work environment, Justice O'Connor made clear that a victim of harassment need not tolerate this form of discrimination until she is so harmed as to need professional psychological intervention. Relief may be sought before the vistim goes nuts.

Okay, that helps a little. And O'Connor also repeated the familiar elements required for a hostile environment lawsuit -- directed sexual behavior that is offensive and unwelcome to a reasonable man or woman as the case may be -- and serious enough to be fairly labeled pervasive or severe.

The Harris case then proceeded to apply the standard to a no-brainer set of ghastly, assaultive facts against a woman trying unsuccessfully to work on forklift. Now we are confused again because the Court, as it always does, refuses to give standards that can be followed in close cases. I don't know a school admininstrator or employer who would fail to recognize a hostile environment under the facts presented in typical Supreme Court decisions. They select the extreme cases.

This leads employers and schools to make understandable line drawing mistakes, not in the serious cases, but in the more typical incidents involving foul language and awkward romantic advances. Even in smaller cases, the lower courts usually err on the side of the plaintiff, at least through a jury trial. Overly enforced zero tolerance policies have become essential due to this ambiguous state of the law.

Strip searching a young girl for Ibuprofin doesn't sound like a close case to me. I don't know -- call me old fashioned -- I wouldn't want my daughter molested over headache medicine. Thus, while it is nice to hear that schools are forbidden to conduct such searches absent a reasonable suspicion and using more reasonable methods -- I don't find this ruling to be particularly helpful in the more typical cases I might face.

Yes, courts take one case at a time and may not issue merely advisory opinions. But a little dictum wouldn't hurt once and a while to help us make well informed decisions in close cases. I don't need a new standard that essentially tells me that my school or workplace should usually allow young women to keep their clothes on.

The problem with dictum is that a lower court that wants to reach a different conclusion with simply dismiss it as such. What your post really makes the case for is qualified immunity -- that is, that public officials will not face Section 1983 liability unless their actions violate clearly established constitutional limits. All public officials should strive to obey the limits of the constitution, but school administrators shouldn't be hamstrung by the fear of legal liability in close cases. Thanks to this latest decision, the next administrator silly enough to strip search for ibuprofen will face personal legal liability. But if qualified immunity works like it should, an administrator with reliable evidence who strip searches for, say, marijuana -- and I hope we agree that that presents a closer call -- won't have to worry about personal liability for his or her actions.

Not so applicable in a civil/sexual harassment context. Notwithstanding Harris, the case law in the lower courts has developed such that the standard for establishing actionable sexual harassment is surprisingly high.

mdc8k;

While qualified immunity is certainly more appropriate than a damages judgment in a case of first impression, it is really no substitute for clear standards that can be followed in advance. I have litigated and won qualified immunity cases but the word "won" is highly controversial to a client who has paid out hundreds of thousands of dollars in fees.

Potential defendants need somehow to know where the line is before they cross it. Our judicial system by its very nature discourages clarity by adjudicating only one set of facts at a time -- but unless statutes, regulations or court opinions are written in more practical and understandable language -- we will keep inaverdently violating the law.

You write: "Thanks to this latest decision, the next administrator silly enough to strip search for ibuprofen will face personal legal liability." Well, sure, but the chances of this fact pattern coming up again are low. What if the substance is marijuana or cocaine? What if the administrator wants to use a sniffing dog and only upon reasonable suspicion wants to strip search?

You also write: "the case law in the lower courts has developed such that the standard for establishing actionable sexual harassment is surprisingly high." How I wish it were so. I have seen judges throw out cases involving physical touching and a patttern of unwelcome, offensive language in the workplace. I have also seen judges send cases to the jury that involve only a handful of juvenile remarks. If the standards are clear in concept, they are not so clear on the ground.

These ambiguities are the reason we have zero tolerance for this and for that. Perhaps this is not such a bad thing since these policies do prevent more serious problems. But when an employer is unclear about the boundaries of the law, a zero tolerance policy can itself become oppressive and offensive.

John

Actually, I don't want my daughter strip searched for marijuana either. I want the school to call me. Where no immediate threat is posed, there is simply no cause for a strip search -- ever. Keep her in the office, and call her parents.

I agree. That shouldn't happen to anyone's daughter or son, and I think that when they were in school, both of my children would have insisted on my being called before they would have submitted to anything like that. Unless there is an immediate threat, you can certainly wait until a parent is involved before you do anything that drastic.

"Potential defendants need somehow to know where the line is before they cross it."

**********

Didn't there used to be a quaint old rule about "void for vagueness"? To paraphrase, our local police department seems to use the "zero tolerance" rule of "We don't know where the line is, and we wouldn't know it if we saw it, but we'll arrest you for crossing it anyway."

john adkisson:

mdc8k;

While qualified immunity is certainly more appropriate than a damages judgment in a case of first impression, it is really no substitute for clear standards that can be followed in advance. I have litigated and won qualified immunity cases but the word "won" is highly controversial to a client who has paid out hundreds of thousands of dollars in fees.

Potential defendants need somehow to know where the line is before they cross it. Our judicial system by its very nature discourages clarity by adjudicating only one set of facts at a time -- but unless statutes, regulations or court opinions are written in more practical and understandable language -- we will keep inaverdently violating the law.

You write: "Thanks to this latest decision, the next administrator silly enough to strip search for ibuprofen will face personal legal liability." Well, sure, but the chances of this fact pattern coming up again are low. What if the substance is marijuana or cocaine? What if the administrator wants to use a sniffing dog and only upon reasonable suspicion wants to strip search?

You also write: "the case law in the lower courts has developed such that the standard for establishing actionable sexual harassment is surprisingly high." How I wish it were so. I have seen judges throw out cases involving physical touching and a patttern of unwelcome, offensive language in the workplace. I have also seen judges send cases to the jury that involve only a handful of juvenile remarks. If the standards are clear in concept, they are not so clear on the ground.

These ambiguities are the reason we have zero tolerance for this and for that. Perhaps this is not such a bad thing since these policies do prevent more serious problems. But when an employer is unclear about the boundaries of the law, a zero tolerance policy can itself become oppressive and offensive.

John

John:

I agree with much of what you wrote. I'm all in favor of clearly-established rules over vague, case-specific standards (O'Connor's infatuation with multi-factor, case specific balancing tests made her a poor judge). My point is simply that there are limits to this approach, and there will always be new situations that aren't clearly addressed by prior precendent (re the marijuana example, would you have had the court draw up a list of substances that it is permissible to strip search for?). Short of dispensing this the"cases and controversy" requirement of Article III, there is always going to be inherent uncertainty in the judicial system, and qualified immunity is a good hedge against that uncertainty.

In the private employer/Title VII context, you are right that the cases are all over the place, but I my epxerience is still that there are more cases where judges grant summary judgment on really some really extreme behavior than those in which judges deny sj for relatively benign comments. To the extent employers are overly-cautious, I think it's more a result of extreme aversion to employment litigation, due to expense and publicity concerns, than an uncertainty over the law.