Sexual Harassment, Peer-to-Peer

Litigation

The U.S. Supreme Court, in a K-12 case that is cited in disputes involving higher education, ruled that colleges, universities, and their officials can be liable for peer-to-peer sexually harassing behavior. In Davis v. Monroe County Board of Education

(1999), the Court explained that institutional officials have a duty to protect students from harassing behavior of peers. More specifically, the Court found that educational institutions can be liable in damages only when their officials act with deliberate indifference to sexual harassment that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the institution. The Court further required that institutional officials must have actual knowledge of such harassment, meaning that they have received reports. The Court added that institutions can be liable only if officials have substantial control over both the harasser and the context in which the known harassment takes place.

A further complication of peer-to-peer sexual harassment law is that student-to-student relationships in higher education settings are not as clear as they may be in elementary and secondary schools, given that college and university students are older and act more independently than children in elementary and secondary school. Further, student participation in campus activities in sororities, fraternities, or other similar higher education settings such as those involved in military training, where a supervisor-subordinate relationship often exists between peers, calls for closer scrutiny of claims of sexual harassment.

In Morse v. Regents of the University of Colorado (1998), for example, female students filed suit against their university, alleging that a higher-ranking cadet in their Reserve Officers Training Corps (ROTC) unit allegedly subjected [Page 406]them to sexual harassment. Without reaching the merits of whether the harasser was subject to liability, the Tenth Circuit ruled that because the ROTC program was a university-sanctioned program that was under the direct supervision of institutional officials, the complaint against it could proceed. The court allowed the complaint against the university to survive the university's motion to dismiss the litigation, because it was convinced that the women had alleged the elements necessary under Title IX, most notably, deliberate indifference by officials in the face of known complaints of peer-to-peer harassment.

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