Teachers and aides who work with students with disabilities are often subject to physical contact with students that other educators don’t have to deal with. It comes with the territory. But sometimes a teacher or paraprofessional will claim that the contact amounts to sexual harassment. That’s what happened in Webster v. Chesterfield County School Board, recently decided by the 4th Circuit.
Ms. Webster was assigned to work with an eight-year old boy diagnosed with ADHD and Down’s Syndrome. Ms. Webster alleged that the boy sexually harassed her on an “almost daily basis” for months. He put his hands up her dress, and touched private parts of her body. He grabbed her by the crotch or buttocks. That kind of thing. The suit does not allege any physical injuries, but claims that she was required to work in a hostile environment. She sued the district for not being adequately attentive to this.
She lost. The court based its decision on the testimony of two expert witnesses. The experts testified that whatever inappropriate behavior occurred, it was not motivated by Ms. Webster’s sex. Nor was it bad enough to create a hostile environment. Both of these assertions by the experts were specifically based on the fact that Ms. Webster was a special education paraprofessional, assigned to a student with significant disabilities. Here are two key excerpts from the expert testimony:
Any special education Instructional Assistant (IA) should have known, and should have expected, that [the student] might grab various parts of a person’s body (including “sexual” areas), or lift shirts solely in order to get attention, as a distraction, or to get someone to “back off.” This is part of the understanding of the special education profession and is not specific to any one school district.
It is not reasonable for a special education IA to conclude that a young child with Down’s Syndrome and ADHD, who responds negatively to instructions or commands by grabbing and squeezing body parts, is engaged in sexually harassing behavior. The student is merely trying to escape the instruction or command….this is what any objectively reasonable special education IA would conclude based on [the student’s] behavior and his disabilities. His behavior had nothing to do with Ms. Webster’s gender.
This case is a perfect illustration of the entire basis for the Toolbox. Educators face a dilemma. Here’s how the court describes it:
This appeal…brings to light the difficult balance that schools must find between ensuring that all students have access to a public school education while simultaneously maintaining a non-hostile environment for all employees—the impact of which is felt by special educators serving at the intersection of these two rights.
It’s Webster v. Chesterfield County School Board, decided by the 4th Circuit on June 28, 2022.
DAWG BONE: GOTTA DO TWO THINGS AT THE SAME TIME AND IT WON’T BE EASY. THAT’S WHY YOU NEED A TOOLBOX.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: the aging “predetermination” theory….