The NewsHour with Jim Lehrer

JIM LEHRER: Good evening. I'm Jim Lehrer. On the NewsHour tonight an update of the school shooting tragedy in Jonesboro, Arkansas; a look at preventing Rwanda-like violence in the rest of Africa; and an exploration of the laws concerning sexual harassment. It all follows our summary of the news this Wednesday. NEWS SUMMARY

JIM LEHRER: The two young suspects in the Arkansas school shooting were arraigned today. The 11 and 13-year-old boys were charged with five counts of capital murder, ten counts of first degree battery. The shooting happened yesterday at West Side Middle School in Jonesboro. Classes there were canceled today. Prosecutors say the boys lured classmates out of the school with a false fire alarm and then opened fire. Four students and one teacher were killed. Eleven others were injured. President Clinton said he would ask Attorney General Reno reviewed this and other similar events.

PRESIDENT CLINTON: With three horrible tragedies like this involving young people who take other people's lives and then in a process destroy their own, we have to see if there's some common elements, and we'll look and do our best to do the right thing.

JIM LEHRER: We'll have more on this story right after the News Summary. In Daley City, California, today a 13-year-old boy was arrested after he fired a shot at his principal and missed. He had been suspended. Authorities had no information immediately about the possibility of its being a Jonesboro copycat type incident. President Clinton spoke about the Arkansas shooting as he left Uganda on the third day of is eleven-day Africa tour. Later in Rwanda, he met with survivors of the '94 genocide there. He said the world did not act quickly enough to prevent Hutu extremists from killing more than a half million minority group Tutsis. We'll have more on this story later in the program. On the Starr investigation story today Monica Lewinsky's mother, Marcia Lewis, returned to the federal courthouse in Washington. She and her attorney met first in a closed hearing with a judge overseeing the case. The lawyer said afterward that Lewis had lost in her attempt to avoid testifying further about her daughter. The grand jury is investigating whether Lewinsky and the president had an affair and if either lied about it under oath. The U.S. Supreme Court heard arguments in two sexual harassment cases today. Both involve liability of employers held accountable for improper behavior by their employees. The cases involve a Florida lifeguard harassed by her supervisors and a Texas student lured into an affair by a teacher. Lawyers for the victims argued employers should be forced to pay damages even if they were not aware of the offending behavior. Lawyers in the Florida case spoke outside the Supreme Court.

KATHY RODGERS, Plaintiff's Lawyer: If this were the same kind of conduct happening in a racial situation, there seems to be no doubt that the city would be liable. If a supervisor were out driving a city truck and injured somebody on the street, the city would be liable, even though clearly that wasn't part of what the supervisor was supposed to do within his job. You're not supposed to get in accidents, but the city is still liable. Well, you're not supposed to commit or condone sexual harassment either.

HARRY RISSETTO, Lawyer for Employer: The city did not know of the situation down at the beach, and when it knew about it, it acted decisively. It has and had at that time a sexual harassment policy. It has zero tolerance for sex harassment at the workplace, and I think in that kind of situation there ought not to be any liability.

JIM LEHRER: We'll have more on sexual harassment later in the program. In economic news today orders to U.S. factories for big ticket manufactured goods fell last month by 1.7 percent, the Commerce Department reported. A slump in demand for aircraft was blamed. In another report, home resales soared 8.7 percent last month to a record high. A four-week deadline was set today for Yugoslav President Milosevic to start peace talks in Kosovo. The six-nation contact group that includes the United States said, otherwise, it would freeze Yugoslavia's international assets. The threat was made formal at a meeting in Bonn, Germany, attended by Secretary of State Albright. Serb forces killed 80 people earlier this month in a crackdown aimed at suppressing separatists. In Jerusalem today United Nations Secretary-General Kofi Annan told Israel the world held it responsible for the stalled Middle East peace talks. He urged Israeli Prime Minister Netanyahu and Palestinian Leader Arafat to commit to the principle of land for peace. And that's it for the News Summary tonight. Now it's on to the Jonesboro tragedy, preventing more Rwandas, and sexual harassment. FOCUS - ARKANSAS SHOOTING

JIM LEHRER: Death and despair in Jonesboro, Arkansas. Kwame Holman narrates our report.

KWAME HOLMAN: This was the scene yesterday at Westside Middle School in rural Jonesboro, Arkansas, Northeast of Little Rock. Two schoolboys, ages 13 and 11, reportedly set off the school's fire alarm, waited in the woods, then fired multiple high caliber rounds at their classmates and teachers. Four children and a teacher were killed, ten children and another teacher were wounded. Six of them remain hospitalized, one in critical condition. Dale Haas is Craigshead County Sheriff.

DALE HAAS, Craigshead County Sheriff: It looks like at this time that somebody pulled a fire alarm and right behind the school in the wood lines there, there was a couple of boys up there in camouflage, a couple of white males in camouflage clothing, real young boys. When the fire alarm went off, the kids run outside. And what it looks like right now, they started shooting at the children. Thirteen children got hit. I know of one looks he dead--[voice breaking]--okay.

JEREMY WHITE, Eyewitness: I saw a teacher go down and kids gather around, and then they started running, and the kids started falling down one by one. Most of them made it, but some of them didn't.

KWAME HOLMAN: The two boys accused of the shootings are identified in press accounts as Andrew Golden, 13, and his 11-year-old cousin, Mitchell Johnson. Authorities say the boys were armed with high-powered rifles and handguns.

DALE HAAS: The two boys we mentioned was running from an area in the woods lot behind the school, and they were apprehended by the officers. Whenever I got there, naturally, it was chaos, and there was--we were the first ones there. And I didn't even have a count at that time, but they were laid all over the place on the ground.

KWAME HOLMAN: Those who died were Natalie Brooks, Page Ann Herring, and Stephanie Johnson, all 12, and Brittany Varner, 11. Thirty-two-year-old teacher Shannon Wright reportedly was killed while trying to shield a student from the gunfire. Parents in the town of 52,000 rushed to the school yesterday as news of the shootings spread. Westside students said the 13-year-old suspect threatened violence after breaking up with his girlfriend, who is one of the wounded.

JENNIFER NIGHTINGALE, Eyewitness: This one boy, the boy who supposedly, I guess, planned it all, had said that, "Nobody's gonna break up with me," and he said the only reason why he was doing this is because she'd broken up with him, and he's gonna kill her.

KWAME HOLMAN: This morning, Jonesboro District Attorney Brent Davis spoke to reporters.

BRENT DAVIS, Jonesboro District Attorney: We're trying to determine as to what caused--what was the cause. As I indicated yesterday, I think there is always a searching at this stage in something of this nature for a logical explanation for why something like this happens. And I seriously doubt in a case of this nature that there will be a logical explanation or determination as to why this occurred.

REPORTER: What's the demeanor of the two suspects?

BRENT DAVIS: I haven't had any contact with the two suspects personally, so I couldn't comment on that.

REPORTER: --capital murder charges, does that mean your--your track for his course is to try them as adults, to seek the court's permission to try them as adults?

BRENT DAVIS: We are looking at all avenues and all options, but if they are charged in juvenile court, that is not an option that is available to us to prosecute them as adults.

REPORTER: But can't you ask for relief for that, to bring them charges--charges as adults?

BRENT DAVIS: We are looking at all avenues available to us, but I'm not aware of any avenue under Arkansas law that would allow us to request and try someone under the age of 14 as an adult.

REPORTER: Any clue who pulled the fire alarm? Is there a search for a third person involved?

BRENT DAVIS: All of that information, as far as any third individual involved, there is no information that I'm aware of that that is a--is a likelihood or even a serious matter for investigation at this point, although all information that becomes available will be processed. As far as who pulled the fire alarm, that's something that is still an ongoing part of the investigation.

REPORTER: Did both of the boys pull the--did both of the boys pull the triggers? Were both shooters?

BRENT DAVIS: I don't have direct information. It wouldn't be appropriate for me to comment on that at this time.

REPORTER: How many guns were recovered? And could you be specific on the type of weapons.

BRENT DAVIS: I know multiple guns have been recovered. I think, as was indicated yesterday. Some of those guns were long guns, rifles, and some of those are handguns.

REPORTER: --numbers--

BRENT DAVIS: I just know there were multiple guns involved.

REPORTER: Where did they get the guns?

BRENT DAVIS: I'm not sure on that.

KWAME HOLMAN: This afternoon, Westside principal Karen Curtner said classes will resume tomorrow as the community struggles to make semblance of what happened.

KAREN CURTNER, Principal, Westside Middle School: It was devastating. It was very shocking. It was something that I never anticipated occurring.

REPORTER: You had some brave teachers out there, though.

KAREN CURTNER: I would like to thank everybody. We had teachers that put theirselves in danger to go out and help those others that were wounded. We have a great staff here. We had not received any indication or advanced notification prior to this incident. If any threat had been brought to my attention, it would have been dealt with appropriately.

KWAME HOLMAN: Late today, District Attorney Davis announced the two boys were charged with five counts of capital murder and ten counts of first degree battery. He said authorities still are determining whether the two boys can be charged as adults. Meanwhile, members of the community laid flowers at the entrance to the school, where the flag flew at half mast. FOCUS - SEARCH FOR STABILITY

JIM LEHRER: Africa, Rwanda, and genocide. Charles Krause begins our coverage with the report on the third day of President Clinton's African tour.

CHARLES KRAUSE: The President and First Lady arrived in the Rwandan capital of Kigali this morning, the third stop of their 11-day Africa tour. For security reasons the President could go no further than the airport where he was welcomed by Rwanda's President Pasteur Bizimungu. During his three-hour stop in Rwanda, the President apologized for the international community's failure to stop the genocide that occurred in that country four years ago. In 1994, Rwandan Hutus killed more than half a million Tutsis, as well as Hutu moderates during a series of tribal and political massacres.

PRESIDENT CLINTON: It may seem strange to you here, especially the many of you who lost members of your family, but all over the world there were people like me sitting in offices, day after day after day, who did not fully appreciate the depth and the speed with which you were being engulfed by this unimaginable terror. The international community, together with nations in Africa, must bear its share of responsibility for this tragedy as well. We did not act quickly enough after the killing began. We should not have allowed the refugee camps to become safe haven for the killers. [Applause] We did not immediately call these crimes by their rightful name: genocide. [Applause] We cannot change the past. But we can and must do everything in our power to help you build a future without fear and full of hope.

CHARLES KRAUSE: Toward that end, Mr. Clinton announced that the U.S. would become the first contributor to a survivors fund, promising $2 million this year. The President also promised another $30 million to strengthen courts and the justice systems in Rwanda, Burundi, and the democratic republic of the Congo. Mr. Clinton also urged that trials of Rwandans accused of genocide be expedited. The President returned to Uganda this afternoon to attend a summit meeting with leaders from East Africa and the Great Lakes nations of Central Africa. At the meeting the President and the seven African leaders signed a declaration condemning acts of genocide and promising to deny support and safe havens to extremist groups.

PRESIDENT CLINTON: Here today--and this is very important--we have pledged to find new ways to work together to solve conflicts before they explode into crises and to act to stop them more quickly when they do.

CHARLES KRAUSE: Tomorrow the President and Mrs. Clinton will travel to South Africa.

JIM LEHRER: More now and to Margaret Warner.

MARGARET WARNER: And for that we're joined by MacArthur DeShazer, executive director for the National Summit on Africa, a private organization that promotes U.S./African relations. He was director of African affairs at the National Security Council from 1993 to '96 during the genocide in Rwanda. Olara Otunnu, president of the International Peace Academy, a private group that promotes conflict resolution; he was Uganda's ambassador to the United Nations and minister of foreign affairs in the 1980's; and Alison DesForges, a consultant for Human Rights Watch/Africa and an Africa historian. She joins us from the newsroom of Station WXAA in Albany, New York. And Mr. Otunnu, starting with you, the theme of the day for the President and the leaders he met with was preventing another genocide, a Rwanda-like genocide. How real do you think the danger is right now in that part of Africa?

OLARA OTUNNU, International Peace Academy: The danger is extremely great. But what is important is that we know the factors that give rise to conflict. It is to do with the way in which diversities manage within the societies, the prospect of ethnic hegemony by one group over others; it is to do with the denial of democracy; it is to do with the manner in which resources are distributed within the same country, where some areas and some sectors are favored and others are neglected. So we know these factors and these are the factors that have to be addressed long-term in order to ensure that there's no repetition of the tragedies of which the President spoke.

MARGARET WARNER: Ms. DesForges, do you agree with that analysis of the level of the danger and what the reasons are?

ALISON DES FORGES, Human Rights Watch/Africa: I certainly do. The situation in that region of Africa is particularly precarious. The genocide was a devastating catastrophe, which will leave consequences for decades to come. The continuing insurgencies in Rwanda, in Congo, and in Burundi all promise to develop. There is no immediate end in sight. It's very promising to hear the kind of declaration the President has just signed with the leaders at the Kampala summit talking about a new commitment to end genocide, but it's a statement that's long on rhetoric and short on specifics. We don't see exactly how this can be done.

MARGARET WARNER: Sticking with the analysis of the problem and the danger, Mr. DeShazer, again, do you agree that it really is quite acute? And where would you say the danger is greatest of say the three countries that Ms. DesForges just mentioned, these three neighboring countries, Rwanda, Burundi, and Congo?

MAC ARTHUR DE SHAZER, Former National Security Council Staff: Well, I agree with both the speakers before that the danger is as they've indicated. I think what needs--in terms of identifying what regions--what countries face the greatest danger at this point, I think both in Rwanda and Burundi right now we have very serious problems between the Hutus and Tutsis in trying to determine how to best govern themselves and how best to establish democratic institutions within the countries and work out the differences. So I would say both in Rwanda and Burundi and the potential, and probably the Congo as well.

MARGARET WARNER: And just to remind our viewers, the Hutus and the Tusis are the two tribes that have been vying for power, certainly both in Rwanda and Burundi.

MAC ARTHUR DE SHAZER: That's exactly right.

MARGARET WARNER: Does it feel to you the way it did when you were at the NSC and the Rwanda genocide was just about to occur, in other words, does it feel that acute to you?

MAC ARTHUR DE SHAZER: I don't think so at this point. I think that given the negotiations that have been taking place between various elements within the international community and entities within both Burundi and Rwanda, I think that we are more focused and more engaged in trying to help solve these problems than we were before.

MARGARET WARNER: Olara Otunnu, again, sticking still with the analysis of the situation, you talked about that this part of the world or Africa isn't managing its diversity well. Now, there are other parts of Africa within tribes, with long histories of enmity. Why is--is there some common underlying problem here that makes it particularly difficult for say the Hutus and the Tutsis to manage theirs?

OLARA OTUNNU: No. The issue of diversity is universal, and diversity by itself doesn't give rise to conflict. It is when political leaders, demagogues, begin to use this factor and exploit it as a way of gaining or attaining power that it becomes an explosive factor. And when diversity is used as a basis for distributing resources, favoring some ethnic groups and ignoring others, or when diversity is used to establish ethnic hegemony, one group establishing hegemony over others, then it becomes an explosive factor. Indeed, I would add there's one other new element in the region of Africa today. We are seeing for the first time the building of military and political alliances across borders. But these alliances are being built along ethnic lines. So the explosive factor which until now was within countries at a national level is now being exported across borders, and this is very different, incidentally, from what Africans always held dear, the notion of Pan Africanism, which is about uniting the peoples of Africa, not dividing them, and we're seeing a very active effort to divide the peoples of the Great Lakes region along ethnic lines, across borders.

MARGARET WARNER: And give us just one example of that and explain why the government in question would be doing that, that is, making ties with rebels or insurgents in another country.

OLARA OTUNNU: We've seen alliances being built from Uganda to Rwanda to Burundi to the People's Republic of the Congo, military and political alliances, and these common causes have taken on a very acute ethnic dimension to it, and I think this is extremely dangerous. It will come back to haunt that region of Africa. And this needs to be addressed by both the national leaders, but also by the international community. It's a very dangerous development, indeed.

MARGARET WARNER: Mr. DeShazer, you're nodding your head. You agree with that?

MAC ARTHUR DE SHAZER: I agree 100 percent.

MARGARET WARNER: Again, why are these governments doing this?

MAC ARTHUR DE SHAZER: Well, of course, they all have their particular agendas. I think it's important to note though, just talking in terms of getting beyond their problems, they--the meeting that the president--the summit that was convened today, I think, is extraordinarily important in helping to bridge the gaps that--and the situation just previously described. I think it's extremely important that the President and these leaders get together to talk to these issues and show that the international community, represented in this case by the President's visit, is engaged in--that there is--support within the international community for the situation there.

MARGARET WARNER: All right. Ms. DesForges, you're--let me let Ms. DesForges in here for a minute. Give me your assessment of what it is going to take to prevent another major conflict and whether you agree with Mr. DeShazer that the steps taken today are an important step.

ALISON DES FORGES: Well, I agree with Mr. DeShazer that it is, indeed, satisfying to see the concern on the part of these various leaders, as well as on the part of President Clinton. But I want to stress that talk is not enough. We've had talk for a long time, and it's done us no good at all. What we need is some specific, concrete measures. For example, this region is awash in small arms. The arms themselves don't make the conflict, but certainly they make the conflict deadlier. We need action to cut down on the arms trade into this region. We need some--

MARGARET WARNER: Where are they getting the arms? Excuse me. Where are they getting the arms?

ALISON DES FORGES: They're getting the arms from a number of sources. In fact, it's more difficult to say where they are not getting the arms from because there's enormous competition to sell arms in this region from many manufacturers. In addition to that, it's extremely important for there to be speedy, firm action on the front of justice. The international tribunal has made a very small beginning in terms of justice for the Rwanda genocide, but that needs to be extended, extended in time so that anyone who is guilty of genocide presently would be brought to trial--as well as the other part of the tribunal's responsibility, which is to deal with crimes against humanity. We've talked about an international criminal tribunal. But this is a long way down the road. We need to make the current tribunal far more effective in its actions. So it's good to have the President talking with these various heads of state. It's good to have a firm line put forward about the need to prevent genocide and crimes against humanity, but that talk is certainly not enough.

MARGARET WARNER: Well, now the leaders who met with the President today said they weren't going to help insurgents across borders. Do you think we're going to see a change? Does that declaration make you think that this kind of activity is going to stop?

ALISON DES FORGES: I would be extremely surprised to see that declaration enforced.

MARGARET WARNER: Mr. Otunnu, how about you?

OLARA OTUNNU: Well, I think I agree that the most important thing here are not the words but the deeds, the deeds of these governments and their leaders. Secondly, it is very important that the international community does not commit itself to sponsoring a leader or a community of others but to sponsoring certain policies and principles, the principles of democracy, multi-party democracy, of peaceful resolution of conflict, observance of human rights, and more even patterns of development. And that is extremely important that no community within this region should feel excluded, whether in terms of political power or in terms of economic power. There must be a sense of participation, a sense of inclusion, a sense of power-sharing. This has been a fundamental problem within this region of Africa, and finally I would say it is very important that the President's message should be conveyed consistently across Africa, whether it is a message of multi-party democracy, the message of human rights or the prevention of conflict, it should be the same message in all African countries and all governments and countries should be judged by the same criteria. This is exceedingly important.

MARGARET WARNER: All right. And very briefly, because I want to get to the others, but you just laid out four things. How well do you think foreign governments are doing on your benchmarks right now, and how well do you think the African governments are doing on your benchmarks?

OLARA OTUNNU: Well, I think on the part of African government, I want to see more deeds and less words. And I want to see the African government address their people more than they address the international media and the international community. They should address their people. On the part of the wide international community, there is still much too much of double standard and inconsistency in the way in which we seek to promote democracy, we seek to promote human rights, and we seek to promote more even patterns of development. And I hope that we shall try to produce more consistency and try to look at the deeds of these governments and leaders and not their words.

MARGARET WARNER: Would you agree? What's your take on the performance on both ends of this equation?

MAC ARTHUR DE SHAZER: Well, I agree that what the international community and specifically the United States have not done is be consistent in our support for the countries of Africa. I think that, as was just noted, African countries have also got a role to play and they have not done that as well as they should. And part of it has to do with the fact that I think that there is an unfamiliarity with the institutions or the building blocks of democracy. And they've got a lot of work to do with understanding that, and we've got a lot within the international community to do with guiding--helping to guide these countries down the path toward a democratic government.

MARGARET WARNER: Ms. DesForges, your assessment of how well both ends are doing briefly.

ALISON DES FORGES: Well, I wouldn't agree completely with Mr. DeShazer. I believe that there is within the African continent a very substantial number of people who understand very, very well all the concepts of human rights and all of the building blocks of democracy. Unfortunately, they are not the people who have the guns. So the direction of U.S. policy should be not in support of all countries of Africa or all leaders of Africa but rather in firm support of those who do as far as the ideals of human rights; you do protect all of the citizens of their countries equally.

MARGARET WARNER: All right. Thank you all three very, very much. FOCUS - SEXUAL HARASSMENT

JIM LEHRER: The many legal sides to sexual harassment. The Starr investigation and the Paula Jones case involving President Clinton and the recent trial of Army Sgt. Major McKinney have brought a new and bright light to this issue. We look at it now, beginning with what happened today before the U.S. Supreme Court. The justices heard arguments in two sexual harassment cases touching on the liability of the employers of sexual harassers. Here to tell us about the cases and the arguments is NewsHour regular Stuart Taylor, senior writer with the National Journal and contributing editor of Newsweek. Stuart.

STUART TAYLOR, National Journal: Nice to be here.

JIM LEHRER: All right. Let's take them one at a time. The first involves a female lifeguard in Florida. What are the facts?

STUART TAYLOR: Beth Ann Faragher was a lifeguard for about five years--1985 to 1990--for the city of Boca Raton, an ocean lifeguard way out on the beach. There were a few women lifeguards and a lot of men. She claimed two years, I think, after she stopped life guarding and gone to law school, as a matter of fact, that she was sexually harassed throughout that period by two of her three supervisors. A lot of crude talk--belittling talk, dirty talk, a lot of unwanted touching on various parts of her anatomy, shoulder, rear end, being tackled once, I think, and lewd and suggestive comments being made, other--I think seven other female lifeguards made similar complaints, and it was established, more or less, for purposes that by the lower courts that this was sexual harassment. The issue for the Supreme Court is whether in addition to suing the people who did this, she could sue their employer, the city of Boca Raton, what the standard should be, and whether the employer's liable.

JIM LEHRER: Now, what are the two arguments on both sides of that question?

STUART TAYLOR: Her lawyer, William Amlong, argued essentially that the employer should be liable in this case for about three independent reasons: One, the harassment was so pervasive that the people at city hall should have known about it, even though they were across the bridge--you know, street and the beach; two, one supervisor was not involved in the harassment, was told about it, the girls, the women complained to him, and he did not report it up the line, and, in essence, told the plaintiff and others the city doesn't care about this, just endure it; three, although the city had a written sexual harassment policy, it was not communicated to any of these people, and, therefore, there was no ready procedure for the women who felt harassed to complain. The argument for the plaintiff was all of those things, I mean, the city should have known and was acting and had delegated power to these people to give--to do harassing, and, therefore, should be liable. And, in essence, by the way, the lower court held that too and awarded Ms. Faragher $1 in nominal damages.

JIM LEHRER: Held the city responsible.

STUART TAYLOR: Held the city responsible but only gave her $1. There were slightly larger awards against the others. The city's argument coming back again, Harry Rissetto said basically there's no way for an employer to know about these kinds of things. They were off on the beach, down the beach. Nobody from city hall was anywhere near there. Nobody told us; we didn't know about it. Even if we had communicated complaint procedures, the nature of these facts was such as to suggest that there would have been no formal complaints, and we should not be held liable for conduct we cannot control.

JIM LEHRER: Any clues from the questions or the reactions from the justices about how this thing might go?

STUART TAYLOR: There was lively questioning by about eight of the justices. And one of the things they centered on was how much difference it should make whether or not the city has a policy. Justice Ginsburg, in particular, Justice O'Connor seemed to be interested in well, if the city has a really good--if the city does everything right--communicates to all its employees, here's where you complain, please let us know about it. Should this insulate them from liability? But I think the more they kicked it around, the more Chief Justice Rehnquist's plaintive question at one point seemed to ring true, which is, you know, all of this sounds like going around Robins Hood barn, all of the complicated ways of structuring the argument. We're looking for something clear and simple to administer, and I think the chaos in the lower courts, which has existed and which has led to the Supreme Court deciding so many of these cases this year, was replicated in the efforts of the justices to come to grips with how do you do this.

JIM LEHRER: Yes. All right now, the other case involved a student in Texas who had an affair or was induced--claimed--it was induced--to have an affair with a teacher. What were the arguments there?

STUART TAYLOR: It began at age 14, by the way, and the teacher secretly seduced her and carried on an affair for a long time. The lawyer for the student and her mother and--

JIM LEHRER: Sued the school district.

STUART TAYLOR: Sued the school district.

JIM LEHRER: Right. Okay.

STUART TAYLOR: The teacher got caught and went to prison for statutory rape. This was a crime. And it comes under the rubric of sexual harassment under Title 9, which is special federal legislation imposing sex, non-discrimination obligations on school districts, and other educational institutions that take federal money. The argument for the plaintiff and the administration was you should have very broad liability on school districts in order to force them to pay whenever they basically don't stop teachers from doing this sort of thing, even if it would be hard to do. It wasn't quite that broad, but it was close. The school district argued, on the other hand, look, we have--we get $120,000 in federal funds; this liability is being attached retroactively as a condition; we could be assessed millions and millions of dollars for something we had no knowledge of and no control of, and we shouldn't be hit with this kind of liability based on a law that is a condition attached to the federal grant that we would have turned down in the first place if we knew it came with this condition attached to it.

JIM LEHRER: Chaos on this one too before the justices?

STUART TAYLOR: There was a little less chaos. I think the--on that one I'd be a little more likely to think a school district is going to win largely because the student did--the evidence does not suggest that a student would have ever reported to it to anyone under any circumstances, even if she had been given a written invitation from the school board to do so. She didn't tell her parents. And when she was asked why she kept doing what this man wanted, the answer was basically that, well, he was her mentor and her teacher and she wanted him to keep being her teacher. Although that doesn't mitigate him criminally, it may mitigate the school district's ability to control a situation.

JIM LEHRER: Now, Stuart, put this two cases in the context, the total context with the other cases that the Supreme Court is going to hear on sexual harassment. Put it in the context of what is now before the Supreme Court and what they're trying to clear up generally on sexual harassment.

STUART TAYLOR: Well, earlier this year they decided that same sex sexual harassment, man- on-man, in that case was not necessarily, you know, might be actionable. In earlier cases, which were also unanimous--

JIM LEHRER: There was a guy on the oil rig off the Gulf Coast, right.

STUART TAYLOR: The fact that it's male-on-male does not mean it can't be sexual harassment. It can be, if it's gender based, if they're picking on him because he's a man, as opposed to a woman. There has to be a sex discrimination component. But in that case and two earlier cases, going back to '86, the Supreme Court has laid out general guidelines for what sexual harassment is. Nobody really quite understands where the line is, but these cases are perhaps more important money-wise because they're about when the employer has to pay. Usually--

JIM LEHRER: They don't try to define sexual harassment, right? In other words, that's not the issue.

STUART TAYLOR: Not in these two cases. In these two cases they're taking it as a given that the supervisors were guilty of sexual harassment and that the plaintiff was entitled to damages. The question is whether the plaintiff's entitled to sue the school district in one case or the employer, city of Boca Raton, in the other, and when should the people with the money basically, which is who the plaintiffs always want to sue--

JIM LEHRER: Sure.

STUART TAYLOR: --when they should have to pay up.

JIM LEHRER: But those could be very-- this could be very--these could be very important in terms of the way, whether it's a school district or a company or whatever, the way they go about the business of imposing sexual harassment rules, correct?

STUART TAYLOR: Enormously important, and one risk on the other side, I mean, everybody let's the justice seem to think, well, they should have good rules to encourage people to report it. Justice Breyer pointed out that if you're too--he seemed to suggest that if they're too draconian in trying to have rules and have spies everywhere to make sure nobody's telling a dirty joke or something like that--that you could have other undesirable effects. In other words, if you do everything you conceivably could to make sure sexual harassment never occurs, you're going to have sort of an Orwellian police hovering over the workplace all the time. Now, that wasn't really brought out, but Justice Breyer hinted at it by saying you don't want to go too far and aggravate tensions in the workplace.

JIM LEHRER: The rulings in these two cases that were heard today should be expected when?

STUART TAYLOR: By June. And they're being anxiously awaited by the people who care about the money, by the employers who pay and by the plaintiff's lawyers who get rich bringing these suits. They're not as important symbolically perhaps as some others, but in terms of when it comes down to the money, these are as important as any sexual harassment cases the court's decided.

JIM LEHRER: Okay. Stuart, thank you very much.

STUART TAYLOR: Thank you.

JIM LEHRER: Okay. Elizabeth Farnsworth in San Francisco has more on the sexual harassment issue.

ELIZABETH FARNSWORTH: Sexual harassment law in this country has been evolving ever since Title 7 of the 1964 Civil Rights Act forbad workplace discrimination based on race, color, sex, religion, or national origin. In 1991, the issue hit the front pages when Anita Hill charged then Supreme Court nominee Clarence Thomas with sexual misconduct. Since then, the number of sexual harassment cases has almost tripled. With the Paula Jones case and others, sexual harassment is again on the front pages and is engendering debate and raising questions. For more on all this we turn to Vicki Schultz, a professor of law at Yale University; she's the author of the forthcoming Yale Law Journal article "Reconceptualizing Sexual Harassment;" Jeffrey Rosen, Legal Affairs Editor at the New Republic and Associate Professor of Law at George Washington University; and Debra Raskin, a sexual harassment attorney who teaches a course on the subject at Columbia University Law School. Debra Raskin, in your view, are the laws that determine and say what is and what isn't sexual harassment clear?

DEBRA RASKIN, Sexual Harassment Lawyer: [New York] They're as clear as laws in any other area. The laws generally are not constructed in a way to say two grabs, three grabs, that constitutes sexual harassment. General concepts like severe and pervasive conduct can constitute sexual harassment, are similar too in other areas, obscenity, negligence. Laws across the board are defined generally and applied specifically by the courts. That's no surprise.

ELIZABETH FARNSWORTH: So this is not that unusual, in your point, in your view?

DEBRA RASKIN: No, it isn't, and I find, therefore, that the hue and cry about how is an employer to understand what harassment is, is--I'm not sure if it's crying wolf or what it is--but it really does seem to me to be disingenuous.

ELIZABETH FARNSWORTH: Jeffrey Rosen, do you think the laws are clear?

JEFFREY ROSEN, George Washington University Law School:: I can't imagine that anyone could say they are. I mean, it's a remarkable fact that when we think about the totemic examples of harassment that have convulsed the nation, President Clinton, Bob Packwood, and Justice Thomas, even here no one seems sure whether or not it was legally actionable harassment. Gloria Steinem had an interesting op-ed on Sunday in the New York Times suggesting that Clinton was not guilty of harassment but Packwood and Thomas are guilty. But, in fact, when we think about it, I would imagine that none of those three cases, in my view, would rise to a legally actionable standard. And the fact that even as a nation the most dramatic cases can't be sorted out suggests that we have a very serious problem, indeed.

ELIZABETH FARNSWORTH: But, Mr. Rosen, isn't this often true with law, that until the courts rule, people debate it like crazy, and everybody comes down on a different side of it? Is this different?

JEFFREY ROSEN: There's something different about sex. Isn't that what we're learning in the middle of this fascinating Clinton scandal? There's something difficult to define, and there's another difference in this case that makes it unlike ordinary torts, which is that men and women perceive these things very differently. There's lots of empirical evidence that suggests that in one situation a man may think that he's being affectionate and a woman may be quite offended. This is, of course relevant to the question of whether or not women should be compelled to complain. And one of the things I was struck by in the Supreme Court cases today was that at least the school case, the student who was clearly the victim of statutory rape, had never actually objected. So if the tort standard is going to be what would a reasonable person say, and if it turns out that as a nation, men and women can't even agree about what sort of conduct is appropriate, then it's not so clear that a law can give us answers.

ELIZABETH FARNSWORTH: Vicki Schultz, where do you come down on this question of whether there's too much confusion in the law right now for people to know what do ?

VICKI SCHULTZ, Yale University Law School: I think that there is some unclarity, Elizabeth, but I think it's not nearly as egregious or bad as Jeffrey Rosen has suggested. In fact, I think it's very interesting that he's turning to media cases, rather than legal cases, to discuss what might be the complexity or confusion in the law. One of the problems I see is that we as a society have focused on cases like the President Clinton scandal, like the Anita Hill/Clarence Thomas event, and like the thing recently with Sgt. Major McKinney, and this has caused us to have a very broad idea that what sexual harassment means is any kind of sexual misconduct. I think these kinds of media ideas or representations or popular stories, if you will, have filtered their way into the legal system, unfortunately, and there too we are beginning to see, I think, some problems with the courts insisting that conduct be sexual or look like sexual abuse in order to constitute a hostile work environment. So this has encouraged, I think, some overreaching on the part of companies who are nervous about anything sexual that occurs, and yet, by the same token, all kinds of egregious, non-sexual forms of harassment and discrimination are neglected by this focus.

ELIZABETH FARNSWORTH: So let me get this clear. You think that the way that it's being--the way it's happening and the way it's being carried out in real life, in real cases, and especially with these very high profile cases, there's too much emphasis on just the sexual aspects of it, is that what you're objecting to?

VICKI SCHULTZ: I think that's exactly right, Elizabeth, that if we look at it as sexual abuse, we're focusing on the symptom, rather than the disease. The disease is sex discrimination in the workplace, not treating women seriously as workers. And that--the forms of disrespect and not treating women as equals on the job can be sexual in nature but more commonly they are not sexual in nature.

ELIZABETH FARNSWORTH: Okay. Debra Raskin, what do you think about that, and do you think that's part of why there's some lack of clarity here, that it's unclear whether this is about protecting women from sexual abuse, or it's about protecting them from gender discrimination in the workplace? It doesn't necessarily have to be sexual.

DEBRA RASKIN: Well, the cases, as I read them, do define both kinds of conduct as sexual harassment. In other words, if it's not sexual in nature but it's harassment, if it's words directed at women, if it'sgluing shut their locker, if it's taking away their tools, making them run a gauntlet of difficult work circumstances that men don't have to, I think that has been defined in lots of cases as sexual harassment. I think that sexual overtures also have been, but the Supreme Court has insisted and the lower courts have carried this out, that it be severe and pervasive. So it's not a single dirty joke, and it's not a single naked woman in a poster. And the questions of degrees have been measured by the courts.

ELIZABETH FARNSWORTH: And, Debra Raskin, in the real world, in the way that courts in the states and the federal courts are deciding these cases, do you think that the cases have had positive effects? Do you think that the cases are making life better for women in the workplace?

DEBRA RASKIN: I do, because if you read some of the early surveys and early social data, I mean, going back to the Redbook Survey in the 1970's, it would tell you that many women experienced sexual harassment and only a very tiny percentage ever complained about it. The statistics of the EEOC charges and people coming forward with complaints doesn't mean that the problem has gotten worse; it just means that people are finally having some ability to come forward and make complaints and, one would hope, get these things resolved.

ELIZABETH FARNSWORTH: Okay. Jeffrey Rosen, both on the point that Vicki Schultz brought up about this perhaps getting too much concentrated on sex and also whether in real life this is improving people's lives, comment on both.

JEFFREY ROSEN: I must object to Professor Schultz's notion that it's only in media cases that we're confused about what harassment is. It was remarkable that at the Supreme Court today Chief Justice Rehnquist actually began by asking in the school case, this is obviously appalling, it's criminal conduct, but how is it discrimination based on sex? Now, the great insight and contribution of Professor Schultz's fascinating article is to remind us that core gender discrimination is really what Title 7 was about. The problem for sexual harassment law is that much sexual conduct in the workplace is really more discrimination based on sexual attraction than gender discrimination per se, and that's why even in both Supreme Court cases, and this is why it's not just media cases, Chief Justice Rehnquist suggested that maybe statutory rape is not gender discrimination and the city of Boca Raton continues to insist its lifeguards were not the victim of gender discrimination. It's a conceptual flaw at the center of sexual harassment law. It's not a trivial problem, and it's not at all obvious what the solution is.

ELIZABETH FARNSWORTH: Okay. Explain the central flaw again, just clarify that a bit for us.

JEFFREY ROSEN: Title 7 prohibits discrimination based on sex. Sexual harassment law claims that sexual expressions, even an unwanted advance that creates an intimidating, hostile environment, is a form of gender discrimination. But it's not so clear. Assuming that a supervisor has an exemplary record with most women in his workplaces, but just singles out a single one, and makes an advance toward her, even if he threatens retaliation in exchange for the advancement, the form of quid pro quo harassment, which we don't like at all, it's hard to say that even that is gender discrimination. So my intuition, I think, and I'm informed by Professor Schultz's interesting article, is that maybe we need a pattern of advances or even quid pro quo threats toward a whole number of women in the workplace. And that's why not PaulaJones and not Anita Hill and also not even the woman in the Texas school was the victim of gender discrimination in the workplace.

ELIZABETH FARNSWORTH: Okay. What about that, Ms. Schultz?

VICKI SCHULTZ: Thank you for the chance to respond. Jeffrey Rosen, let me just say that when I'm talking about the media cases, my point is that when the courts go to apply the standard of whether the conduct has risen to the level of being sufficiently severe, or pervasive to constitute hostile work environment harassment, they, like anyone else, is influenced by what the popular culture thinks of as particularly severe and shocking conduct. So my critique is not so much that we're just focusing on the media cases to the neglect of the law but that the way we talk about sexual harassment in popular culture affects what judges, in turn, think of as shocking and terrible conduct, so that the Paula Jones case, for example, becomes a plausible case because people say, oh, my goodness, if someone makes a clumsy, salacious sexual advance, that must be sexual harassment. Let me turn to your second point, though, which is, why we should think about sexual harassment as sex discrimination. I think that there is some confusion in the early quid pro quo case law on this point.

ELIZABETH FARNSWORTH: Just explain quid pro quo quickly.

VICKI SCHULTZ: Thank you. Quid pro quo is the type of harassment that we could refer to colloquially as put out or get out. The person is fired or subjected to bad job consequences if they refuse to sleep with their boss. Now, early on in the history of Title 7, courts had to think about whether or not what it was about those situations that made them sex discrimination. And some courts said that it rested on the sexual advance, itself; that if a heterosexual male made an advance toward a woman, that was based on sex because he would not have made the same advance toward a man. I think that there are other kinds of ways that we could talk about why quid pro quo harassment constitutes sex discrimination. And let me take a rough stab at it here, although this is not something I've done in my forthcoming article. It's not the advance, itself. It's the willingness and the presumption that a boss would punish someone for not sleeping with him on the job. That's what makes it employment discrimination. It's not the advance, itself. Women workers are frequently subjected to all kinds of petty, paternalistic forms of authority on the job, and they don't include only being punished for sexual advances. But that is one such form.

ELIZABETH FARNSWORTH: Debra Raskin, respond to that, if you want to, and also, how do you respond to people who say, these matters should not be made subject to law, these are too intimate, women have to learn to take care of this themselves, they can, they don't need to be protected by the law?

DEBRA RASKIN: Well, let me say this. The notion that just because a manager hits upon one woman it is not sexual discrimination is very strange. You don't have to prove in a hiring case, in a firing case that a manager discriminated against all women or even multiple women in the workplace. If he's extracting sexual conditions, either the actual favors or continually giving sexual comments, that is making her work environment different from a man. That's discrimination. That's differential treatment. And I don't see why that is so hard to understand. The issue of why we need laws to protect women from this is simply because prior to the enactment of such laws, prior to the recognition of this kind of conduct, women had to run a gauntlet of abuse in many workplaces. You read these cases, and you literally want to throw up reading about the different environments where dirty pictures are posted, where jokes are told all the time, where women are referred to by their body parts. I mean, this is not a game. This is deadly serious, and it interferes dramatically with women's ability to work. And we can't depend upon the kindness of strangers to fix it up.

ELIZABETH FARNSWORTH: Okay. Jeffrey Rosen, you've already suggested what you would change a little bit. Given the problems you see in sexual harassment law what do you think should be done?

JEFFREY ROSEN: The real notion is that many of the things that upset us perhaps are not a form of gender discrimination. So quid pro quo harassment might well be covered by state tort law. The--

ELIZABETH FARNSWORTH: In what way? Clarify that.

JEFFREY ROSEN: We could have states forbid the use of threats to exact sexual favors. It's a form of coercion. One interesting thing that we've learned is that many of the things that are being litigated nowadays are illegal under other forms. Everyone conceded that the poor schoolgirl was the victim of statutory rape and so forth. I think here's the basic--

ELIZABETH FARNSWORTH: But what's the difference? There are still laws that are outlawing certain forms of sexual misconduct?

JEFFREY ROSEN: What's the difference, of course, is the liability rules. Under certain state torts, you can't get compensatory damages and punitive damages and attorneys fees, which is why there's a great incentive to bring these cases under federal law. The basis question that's been posed and Professor Schultz helps us think about it, but I think none us right now has very crisp answer, is whether or not we want to continue to think about sexual expression in the workplace as a form of gender discrimination or whether really given the risks of chilling all sorts of speech that should be protected, the costs of this entire experiment are greater than they're worth.

ELIZABETH FARNSWORTH: Was that the way you would define the question, Vicki Schultz, or not?

VICKI SCHULTZ: No, actually not at all, Elizabeth. I think that there is more need than ever for protection from hostile work environment harassment and quid pro quo harassment. I would only urge people with respect to particularly hostile work environment harassment, which is the most unclear of the two causes of action, to not think about it solely as a form of sexual attraction or sexual abuse. In workplaces all over America every day women go to work, and they're told that they have no right to be in the job because it's a man's job, and they should be home with their kids. And they are subjected to a whole host of sexual and non-sexual forms of abuse. Now, this is exactly the kind of thing that Title 7 was enacted to prevent. Congress's main purpose in enacting Title 7 was to make sure that the men and women alike have access to all the different forms of work in our society; that no one owns any form of work. And so I would just caution courts, commentators, and everyone in our society to think more broadly about the kinds of conduct that can make workplaces difficult.

ELIZABETH FARNSWORTH: Okay. Okay. Thank you all very much for being with us. RECAP

JIM LEHRER: Again, the other major stories of this Wednesday, the two young suspects in the Arkansas school shooting were charged with five counts of capital murder, ten counts of first degree battery. And President Clinton was in Rwanda, where he said the world did not act quickly enough in the 1994 massacre there. We'll see you on-line and again here tomorrow evening. I'm Jim Lehrer. Thank you and good night.