With Title IX under fire, Pa.’s anti-discrimination law may provide an alternative remedy | Opinion

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By Tara Murtha

Last fall, U.S. Education Secretary Betsy DeVos proposed new Title IX regulations that if adopted would be harmful to student survivors: The proposed rules would drastically narrow the kind of behavior considered “sexual harassment” under Title IX, apply to fewer students overall, reduce the obligations of schools to address discriminatory behavior, and mandate specific procedures that favor students accused of sexual harassment or assault.

In short, even though Title IX has been the law of the land since 1972, student survivors’ ability to rely on the government to adequately enforce it under the Trump administration is at risk.

But now, just as concern about the future availability of Title IX to keep our students safe in school is growing, a recent ruling in a landmark bullying case indicates that Pennsylvania students may have an alternate avenue to pursue if their school fails to adequately address allegations of sexual harassment and assault.

The complaint in Wible v. School District of Philadelphia frankly reads like a horror movie.

Plaintiff Amanda Wible is a gender-nonconforming student who faced years of sexual harassment, including severe bullying, while enrolled as a student in four different schools in the School District of Philadelphia.

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Her harassers targeted Wible specifically because of her gender presentation. According to the complaint, classmates routinely sexually harassed her, assaulted her, spit on her, destroyed her homework, spread sexual rumors about her, and called her names like “bitch,” “she-he,” “fag,” “slut,” and other sexual epithets.

Even though school officials were made aware of this happening, the School District failed to stop the ongoing harassment. In one specific example, a boy who had physically assaulted Wible was later transferred into her class, despite school officials having been informed of the violent attack.

The relentless sexual harassment endured by Wible caused her to suffer significant physical and ongoing psychological harm including a diagnosis of complex PTSD, a serious disorder typically associated with war veterans.

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Despite her suffering, Wible found the strength to fight back. Represented by David Berney, Jennifer Y. Sang and Kevin Golembiewski of law firm Berney and Sang, Ms. Wible brought sexual harassment claims against the School District under the Pennsylvania Human Relations Act (PHRA).

The PHRA is a state anti-discrimination law that contains what’s known as “public accommodation” protections. The PHRA states that any practice or policy of discrimination based on sex is a matter of concern to the Commonwealth of Pennsylvania, and bans sex discrimination in public accommodations–which explicitly includes all educational institutions under the supervision of the Commonwealth.

In December 2018, Wible prevailed at trial, with the court ruling that PHRA’s anti-discrimination provisions do provide protection from student-on-student harassment, including harassment of students who do not conform to gender stereotypes. The School District of Philadelphia was held liable for enabling the abuse.

But the district is challenging that ruling.Attorneys at the Women’s Law Project co-authored an amicus brief with the Education Law Center that supports Wible and the Court’s findings of liability under the PHRA. We filed it on May 22, 2019 in the Commonwealth Court of Pennsylvania on behalf of 21 additional organizations.

The Pennsylvania Human Relations Commission, the state agency in charge of enforcing anti-discrimination provisions of the PHRA, also filed a brief supporting the Court’s ruling.

If Wible is successful and the ruling is upheld, it means Pennsylvania students will have another avenue under state law to hold their educational institution accountable for failing to adequately address sexual harassment.

As Wible’s case illustrates, sexual harassment and gender-based bullying isn’t only a problem in colleges.

A 2011 survey of 7th to 12th-grade students in public schools found that nearly half (48 percent) of students surveyed had experienced some form of sexual harassment in the past school year, with nearly 9 in 10 (87 percent) of those students saying that the harassment had a negative impact on them. Research also shows the vast majority of LGBTQ and gender-nonconforming students experience harassment in school.

This case is a good reminder that sometimes all it takes is one brave victim to fight back to benefit all of us by giving the Courts an opportunity to clarify and enforce protections.

Tara Murtha is Director of Strategic Communications at the Women’s Law Project. The Women’s Law Project is a public interest law center devoted to defending and expanding the rights of women, girls, and LGBTQ people in Pennsylvania and beyond. www.womenslawproject.org.

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