Title IX and Sexual Harassment

Title IX of the Education Amendments of 1972 forbids gender discrimination by any educational institution, public or private, that receives federal funds, and the U.S. Supreme Court has interpreted Title IX to prohibit sexual harassment whether by individuals or institutions. Institutions, of course, can be liable due to the acts of officials who either chose to break the law or fail to enforce its provisions. After permitting private causes of action under Title IX to proceed in Cannon v. University of Chicago (1979) and Franklin v. Gwinnett County Public Schools (1992), the Court applied Title IX to sexual harassment of a student by a [Page 484]teacher in a public school in Gebser v. Lago Vista Independent School District (1998). A year later, in Davis v. Monroe County Board of Education (1999), the Court extended its holding to sexual harassment of a student by a peer in a public school. Based on the significant issues involved in this area, this entry examines the status of the law with regard to sexual harassment on college and university campuses, focusing on the law with respect to institutional liability for sexual harassment, not on what counts as sexual harassment in general.

With respect to faculty-student sexual harassment in the context of higher education, institutional liability can be demonstrated by showing that an “appropriate person” had actual notice of the conduct and that the individual responded, or perhaps more appropriately, failed to respond, with deliberate indifference. With respect to the first element, an appropriate person means an 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. As to the second element, deliberate indifference, this means that an educational official knows of the conduct and, as a matter of official policy, does nothing. Consequently, the courts have interpreted institutions as effectively causing continuing violations. In other words, liability results when institutional officials know of the harassment and affirmatively choose to do nothing.

When the person engaging in sexual harassment is a student, rather than a faculty member in higher education, additional requirements come into play. In Davis, the Supreme Court stressed that the language of Title IX, coupled with the requirement that recipients of federal financial assistance have notice of the proscriptions under the statute, requires that institutions subjected to liability must have substantial control over the harasser and the environment in which the harassment occurs before they can be liable: “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. 646). In reaching this outcome, the Court relied in part on the requirement in Title IX that harassment occur under the operations of a funding recipient.

However, the Court, in an apparent attempt to qualify the requirement as it might apply in higher education, emphasized that college or university officials might

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