Editor’s Note: Bruce Mason, attorney for the plaintiffs in the lawsuit described in this article, is also the author’s father.

As parents, we have to put a lot of trust and faith in our school officials, particularly when our children are in elementary school.  We send them off, day after day, with fingers crossed that teachers and administrators will keep a watchful eye and help them navigate those tricky waters of growing up.  But we do so knowing that teachers and administrators can only do so much.  Kids get hurt, and sometimes kids hurt each other.  But in the normal course of a school year a child should not be the target of repeated sexual harassment, assault, and abuse.  One incident is criminal, but to have your child become the target of what can only be called a campaign of terror is every parent’s worst nightmare.  To have that campaign continue as teachers and administrators turn a blind eye is not only inexcusable, it is also against the law.

That’s the precise scenario facing some parents in the Omaha Public School system (OPS) as their children faced years of escalating threats that ultimately led to acts of physical violence.  Despite repeatedly notifying school officials, nothing was done.  Now OPS must answer to a civil rights lawsuit detailing the abuse its students suffered and the reckless indifference shown by school officials.

Both Title IX of the Education Amendments Act of 1972 and the 14th Amendment prohibit just this kind of scenario.  Just like Title VII protects all employees, regardless of gender, from having to work in a sexually hostile and abusive environment, Title IX offers those same protections for students, while the substantive due process and equal protection guarantees of the 14th Amendment requires that school officials maintain an environment that protects students’ privacy and bodily integrity.

According to the facts of the complaint, beginning in the 2007-2008 school year one student at Oak Valley Elementary School “engaged in continuous name calling, threats of violence and sexually explicit remarks” which he directed at two students while all the students were on school property or in the school, all during school hours.  The parents of those students placed “numerous” calls to the principal but nothing was ever done, despite school policies and procedures, state and federal laws requiring otherwise.

The abuse continued into the next school year and, as is typical with bullying, escalated into actual physical assaults. The principal was once again notified, and the principal again ignored the complaints and failed to address the situation in any fashion. It was becoming clear that the modus operandi was to turn a blind eye and let the perpetrator skate through the system until he was someone else’s problem.

By the following school year the physical violence then escalated to sexual violence.  School officials were again notified and still refused to act.  One of the victims was repeatedly called names like “whore,” “slut,” and “bitch,” while another was choked and hit in the face at recess.  The principal’s response to the parents’ desperate pleas to do something was to simply note that the offender was “troubled” and the principal would speak to him.  And when that “troubled” student’s behavior escalated to grabbing one victim’s breasts and buttocks, and demanding that she perform oral sex on him, the principal’s response to the parent and victim was to dismiss the behavior as a result of a “crush” and that because the victim was “well developed” neither she nor her parents should find this kind of behavior surprising.

The problems with the approach taken by Oak Valley Elementary school are as apparent as they are shocking and they expose the school district to significant legal liability.  As a recipient of federal funding, OPS is bound by Title IX of the Education Amendments of 1972, that prohibits a student from being “excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any education program or activity receiving Federal financial assistance.”  Since the sexual harassment took place on school grounds during school hours and was persistent and repeated, the failure by the district to take any remedial action also violates the victims’ equal protection and due process rights protected by the 14th Amendment. 

As described by Bruce Mason, attorney for the plaintiffs, the failure of OPS to protect these students is a breach of the most fundamental of duties a school has. 

“If you can’t protect students, you can’t educate them.  It’s as simple as that.  The state [and thusly the school district as a state actor] has a duty to preserve the privacy and to protect the bodily integrity of its students.”

The ramifications for a failure to meet this basic duty go much further than the horrific assaults suffered by a handful of students.  “It’s very much like sexual harassment in the workplace.  The entire environment is affected.”  In this case, the school district not only looked the other way, they made the situation much worse.  “If you put a vulnerable person in a more vulnerable situation then a duty arises to protect those rights.”

Mason’s point, and the lawsuit itself, underscores the really insidious nature of sexual harassment that takes place in educational settings.  In this case these are literally children, inching toward and entering puberty.  The assaults, and the response by administrators, reinforce and foster the power dynamic that discrimination depends on.  To the perpetrator it sends the message that sexual domination is not only acceptable, it is appropriate, and sends it at a very young age.  And to the victims it reinforces that their self-worth and value as a person is dependent on their willingness to abide by gendered preferences, regardless of biological sex.  Acting in a gender-appropriate way, including submitting to dominant and aggressive sexual behavior, is your duty.

Just like workplace sexual harassment cases, the biological sex of the victims doesn’t matter, and in this case the abuser targeted both young boys and girls alike.  Because, like all acts of sexual violence, this is a story about power, not sex.  That’s why OPS needs to be held accountable here.  Not just for justice for the victims, but for its simple refusal to acknowledge this fundamental truth–sexual violence is an expression of power, not of desire. 

The legal theory of this case is not necessarily unique.  Title IX recognizes a private right of action when a student has been deprived of access to educational services.  But by positioning this case as a civil rights case rather than a simple assault case, Mason makes an important point on behalf of his victims.  School administrators failed to recognize the fundamental dignity and humanity of their students.  Yes, these students were assaulted by a fellow student. But they were also stripped of their rights by the state.

As parents, when we send our children to school for an education, we send them off in part to learn cultural standards.  Those standards should not include an acceptance of sexual violence.  Too often this kind of behavior is dismissed as simple “bullying” and as an overreaction by sensitive parents.  Kids need to “toughen up.”  We then eventually read about the tragedies that unfold at the high school level where young girls and boys, victims of sexualized bullying, commit suicide because no one would come to their defense.

How many future offenders start off like this young boy?  How many blind eyes were turned?  And how many future acts of sexual violence could have been avoided if school officials had been willing to just do their jobs.