The federal civil rights law Title IX, which forbids sex discrimination in education, requires schools to respond to sexual harassment, including sexual assault, that poses an obstacle to students’ access to equal educational opportunities. However, the two Supreme Court decisions that set the legal standards for harassment claims in the education arena undercut the power of Title IX in two key ways: 1) they limited school liability for money damages to only those circumstances where the school was “deliberately indifferent” to harassment of which it had “actual knowledge” and 2) they required the harassment to be both severe and pervasive in order to hold schools liable for damages. In doing so, and without justification, the Supreme Court deviated from civil rights standards used in other contexts. For example, employers are liable when they are negligent (rather than deliberately indifferent) to harassment about which they knew or should have known, and the harassment was severe or pervasive.
As a result, the Supreme Court created a legal regime counter to the purpose of Title IX, in which students are forced to tolerate more extreme forms of sexual harassment than adult workers. Many student survivors are unable to hold their schools accountable in court because of these more demanding standards. For example, their schools may purposefully avoid “actual knowledge” of sexual harassment by making it difficult for students to report harassment, or victims might drop out of school before the sexual harassment has continued for long enough for a court to consider it “pervasive.”
States can improve on federal law by creating state-level alternatives with better standards. If they have not done so already, states should pass laws allowing private individuals to sue to challenge sex discrimination in education. These laws should specify that schools are liable for their negligence in response to severe or pervasive harassment of which they knew or should have known. (States with existing sex discrimination laws that mirror Title IX’s current damages liability standards should amend them.) If significant political will is present, legislators should consider not merely adopting the employment standard but improving upon it by enacting a due diligence standard, which requires schools to take more affirmative steps to prevent sex discrimination.
Because state-level enforcement of students’ civil rights vary widely, we also encourage interested individuals to contact us at info@knowyourIX.org so we can work with you to design enforcement mechanisms that meet the needs of your state.
- Catharine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale L.J. 2038 (2016).
- Fatima Goss Graves, Am. Constitution Soc’y for Law & Policy, Restoring Effective Protections for Students Against Sexual Harassment in Schools: Moving Beyond the Gebser and Davis Standards (2008).