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Subverting Title IX

By Emily Suski. Full Text.

Thousands of sexual assaults happen to children in K–12 public schools each year, but the federal courts regularly allow the schools to do almost nothing in response. Title IX exists to ensure that public schools protect students from sexual assaults, harassment, and other forms of sex discrimination. Yet, the federal courts’ interpretations of Title IX drain its power. The Supreme Court has said that public schools will be liable under Title IX if they act with deliberate indifference to known sexual harassment. The Court’s explanation of “deliberate indifference” proscribes schools’ responses to sexual harassment that indirectly cause or make students vulnerable to its recurrence. The deliberate indifference standard, therefore, can require courts to interrogate whether schools’ responses to sexual harassment protect students from suffering further such harassment or even simply the risk of it. In applying the deliberate indifference standard in the K–12 public school context, however, the lower courts avoid such evaluations. Functionally, the courts allow any response by the K–12 public schools to student sexual harassment, other than complete non-action, to suffice.

This Article argues that the lower courts’ assessments of the deliberate indifference standard annul its complete meaning. They consequently permit K–12 schools’ responses to sexual harassment that both risk and actually cause further such harassment. This Article offers an original taxonomy of those vapid, yet permissible, responses to student sexual harassment, and it is the first to demonstrate how those responses effectuate the very harms that Title IX and the deliberate indifference standard could protect against. The lower courts’ anemic applications of the deliberate indifference standard thus subvert Title IX in purpose and effect. To reinvigorate Title IX, this Article proposes recasting the deliberate indifference standard and a framework for its assessment. It also develops a new legal presumption and recommends regulatory changes aimed at requiring schools to act consistently with Title IX’s protective purpose.