Title IX and Sexual Harassment

Title IX of the Education Amendments of 1972, which prohibits gender discrimination by any educational institution, public or private, that receives federal funds, has been interpreted as prohibiting sexual harassment. In Gebser v. Lago Vista Independent School District (1998), the Supreme Court applied Title IX to sexual harassment of a student by an instructor. A year later, in Davis v. Monroe County-Board of Education (1999), the Court extended that holding to sexual harassment of one student by another student.

In the context of faculty-student sexual harassment, discrimination by the school is demonstrated by showing that an “appropriate person” actually knew of the conduct and that the response of the school was deliberately indifferent. The first element, “knowledge by an appropriate person,” refers to a school official who, at a minimum, has authority to address the alleged discrimination and to institute corrective measures on the school's behalf. In other words, “appropriate persons” are those who have the authority to address the misconduct by terminating or otherwise disciplining the offending party. The second element, “deliberate indifference,” means that a school official knows of the conduct and, as a matter of official policy, has done nothing. Consequently, a school effectively causes a continuing violation. In other words, liability is imposed when the school knows of the harassment and affirmatively chooses to do nothing.

When the person engaging in sexual harassment is a student, rather than an instructor, additional [Page 837]requirements are imposed. In Davis, the Court stressed that the language of Title IX, coupled with the requirement that the recipient have notice of the proscriptions under the statute, requires that recipients subjected to liability have substantial control over the harasser and the environment in which the harassment occurs. As the Court noted, “Only then can the recipient be said to ‘expose’ its students to harassment or cause them to undergo it ‘under’ the recipient's programs” (Davis, p. 645). In reaching this conclusion, the Court relied in part on the requirement in Title IX that harassment occur under the operations of a funding recipient. The Court qualified the requirement involving control with respect to entities in higher education:

The Court imposed two additional conditions on its test for peer sexual harassment that were not addressed in Gebser. One provides a defense if the recipient can show that its response to harassment was not “clearly unreasonable.” The Court distinguished this from a “mere ‘reasonableness' standard,” stating that in an appropriate case, “There is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as ‘not clearly unreasonable’ as a matter of law” (Davis, p. 649). The other condition, which is based on the attachment of Title IX to actions that occur under any program or activity, requires that damages be “available only where behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect” (p. 652). Finally, the Court sought to avoid an overly expansive application of its holding to common behavior, particularly among children, involving things such as “simple acts of teasing and name calling” (p. 652).

...