Article by Julie Davies
This Article examines the viability of private enforcement of Title IX, which prohibits discrimination on the basis of sex by educational entities receiving federal funding, in sexual harassment cases. Several years ago, the United States Supreme Court announced a standard heightening protection of entities in cases that seek to impose liability for violations of Title IX. There was speculation that private enforcement of the statute would be greatly reduced. The Article examines sexual harassment cases brought under Title IX after adoption of the new standard as a means of understanding whether the prospects of private actions are as dismal as they may seem.
The Article traces the development of entity liability doctrine, comparing treatment of employers under Title VII and educational entities under Title IX. Although the Article does not advocate use of the workplace standard in education, it demonstrates the commonality of the Supreme Court's concerns about liability for sexual harassment under both statutes and argues these fundamental policy concerns should be used to guide the lower courts as they grapple with the issues that emerge under the Title IX standard. Judicial opinions, mostly in the context of pretrial motions, give an indication of the depth and complexity of the pertinent questions. Some courts interpret the standard in a manner that virtually forecloses institutional responsibility, while others manifest a broader view. The numbers of dismissals, particularly in peer harassment cases, give an indication of how challenging litigation in this area has become.
The Article argues that the underlying policy warrants a broad interpretation of the new standard. The Article also suggests that despite other factors that influence funding recipients to prevent sexual harassment, private enforcement remains a powerful incentive for prevention. A cramped interpretation of the standard for entity liability may negatively impact not only those who seek to litigate individual grievances, but the general student population as well.
About the Author
Julie Davies. Professor of Law, University of the Pacific, McGeorge School of Law.
Citation
77 Tul. L. Rev. 387 (2002)