The Yale Law Journal

VOLUME
125
2015-2016
NUMBER
7
May 2016
1820-2181
Feature

In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education

Catharine A. MacKinnon

abstract. The treatment of sexual harassment victims by their schools, and of schools by courts, under the institutional liability standard of deliberate indifference for damages in private suits is inconsistent with Title IX’s guarantee of equal educational outcomes on the basis of sex. Replacing deliberate indifference with the international human rights liability standard of due diligence would shift power into the hands of survivors, guarantee institutional accountability, ending current impunity for sexual abuse in schools, and promote change toward sex equality in education.

author. Elizabeth A. Long Professor of Law, University of Michigan Law School; James Barr Ames Visiting Professor of Law (long-term), Harvard Law School. Decades of experience with students reporting sexual harassment to me and working with their cases, both short of and in litigation, provides the ultimate source material for, and background for the perspectives on, the experiences and processes discussed here. The excellent technical assistance of Kim Nayoung and Sean Ouellette, with the research help of the ever-resourceful and on-the-job University of Michigan Law School Library, are gratefully acknowledged. Heartfelt thanks for making the term “colleague” meaningful go to Michele Landis Dauber, Diane Rosenfeld, Louise Fitzgerald, and Alexandra Brodsky. As disclosure, the author has been involved in cases of sexual harassment in education since their inception, including a number referenced in this piece.


Introduction

“The rape was nothing compared to the way my school has treated me.”

– Andrea Pino1

Accountability to survivors by educational institutions is crucial to the delivery of Title IX’s2 promise of equal access to the benefits of an education without discrimination on the basis of sex, a promise vitiated by sexual harassment with impunity. Since 1998, the legal standard for institutional liability has been “deliberate indifference” to known discrimination.3 Inequality is produced by many practices other than conscious disregard of known discrimination.4 The deliberate indifference standard does not implement Title IX’s distinctive statutory outcome-defined mandate of providing equal access to the benefits of an education. None of its liability elements necessarily promote equality, nor are they measured against an equality standard. Deliberate indifference as used under Title IX applies after assaults are reported with no attention to the unequal context, hierarchical relations, or documented climate of abuse that produces them. It looks at procedural steps taken by an educational institution but not at whether the steps produce a sex-equal education for the survivor or the group of which the survivor is a member. No changes that would preclude repetition, so as to transform campuses into sex-equal educational environments going forward, are incentivized or mandated.

Over the years of its application, the deliberate indifference standard has repeatedly and disproportionately5 been deployed against survivors’ cases, including when administrative handling of their situations is concededly callous, incompetent, unresponsive, inept, and inapt.6 Under deliberate indifference, overall data on the occurrence of sexual abuse in schools has not moved an inch.7 The standard permits a wide margin of tolerance for sexual abuse, appearing predicated on a belief in its inevitability, especially in the helplessness of officials and authorities to prevent or eliminate it among young people. Under the aegis of the deliberate indifference standard, women students in particular—disproportionately subjected to this form of gender-based aggression along with some students of all sexes and sexual orientations—have been sexually violated in their schooling from elementary grades through graduate school. The abuse has left them damaged academically, emotionally, and developmentally without mitigation or relief, let alone change, for decades.8

The “due diligence” standard as applied in international human rights law, including in international law against violence against women, provides a promising doctrine for institutional liability for sexual harassment in schools. Due diligence, adopted as a liability standard, would hold schools accountable to survivors for failure to prevent, adequately investigate, effectively respond to, and transformatively remediate sexual violation on campuses, so that sex equality in education is delivered in reality. Its contents would not be foreign to schools, courts, and agencies that have struggled creatively within the straitjacket of existing doctrine to produce such outcomes against the strictures of the current standard. Due diligence would provide what Title IX should be: a tool students could use in their own private actions in courts with their own lawyers to back up administrative enforcement efforts. Crucially, holding schools to a due diligence rule would provide the incentive for change that is lacking under the deliberate indifference doctrine. The goal would be ensuring that sexual abuse is no longer endemic to many schools’ cultures, so that all students receive the safe and equal benefit of an education without discrimination on the basis of sex.

I. sexual harassment in education as sex inequality

Sexual harassment in education, which includes rape and other sexual assault, is a recognized form of gender-based violence long documented to be widespread and prevalent in the United States.9 As the accounts and data below demonstrate, sexual harassment is gender-based because it “is directed against a woman because she is a woman or . . . affects women disproportionately.”10 The same principle applies to anyone harassed because of their sex or gender, including sexuality. Sexual harassment exemplifies the international understanding that violence against women results from “historically unequal power relations between women and men, which have led to domination over and discrimination against women by men and to the prevention of women’s full advancement.”11

Acts of sexual harassment at school are largely similar to those at work and elsewhere, although their harmful effects can be distinctive to the educational setting and the growing mind. The behaviors commonly include sexual epithets, name-calling, importuning, accosting, pornography, molestation and other forms of unwanted sexual contact, and rape.12 Case law and empirical studies divide perpetrators along the lines of school hierarchies. Some of the unwanted sex acts are committed by other students, some by teachers, coaches, and other superiors.13 Victims are disproportionately women but also include some men; a substantial number of affected students identify as gay, bisexual, transgender, and queer.14 A report commissioned by the National Institute of Justice found that nineteen percent of women and 2.5% of men reported experiencing attempted or completed rape since starting college.15 These numbers, while substantial, are likely to be undercounts, given known factors that depress reporting. Also, they document rape and attempted rape only, not other forms of sexual abuse, and count people raped, not rapes.

The American Association of Universities (AAU) 2015 survey of twenty-seven campuses similarly found that the incidence of sexual assault and sexual misconduct due to physical force, threats of physical force, or incapacitation among women undergraduate respondents was 23.1%, including 10.8% by penetration.16 By the time they were seniors, 26.1% of women and 29.5% of students who identify as trans, genderqueer, or identification not mentioned reported nonconsensual sexual contact through completed penetration or sexual touching by physical force or incapacitation.17 Since a version of the discredited labeling methodology was used,18 these numbers are most likely low. Sexual harassment in verbal or visual forms (other than quid pro quo) was reported by 61.9% of undergraduate women and 44.1% of graduate and professional women.19 These data also combine faculty and student perpetrators, making them difficult to interpret. Very little of the abuse was reported to school officials, typically because the victim thought the incident was not serious enough, even when it included forced penetration.20 Nationwide, most educational sexual harassment is by other students; most, but not all, of such peer sexual harassment is committed by boys against girls. Perpetrators of rape of women and girls, so far as is known, are almost always men or boys.21

Sexual harassment in education is neither a new phenomenon nor limited to students’ college years.22 The pattern begins early. In a not unusual case, “[t]he [p]laintiff and other girls were often referred to as ‘lesbian,’ ‘prostitute,’ ‘retard,’ ‘scum,’ ‘bitch,’ ‘whore,’ and ‘ugly dog faced bitch.’”23 In the same case, “[t]he physical harassment included the boys snapping the girls’ bras, running their fingers down the girls’ backs, stuffing paper down the girls’ blouses, cutting the girls’ hair, grabbing the girls’ breasts, spitting, shoving, hitting, and kicking them.”24 In another,

[p]laintiffs allege that some student defendants in the graphics class physically abused them through forcible and offensive sexual contact, . . . [allegedly] touched their breasts and genitalia, sodomized them, forced them to touch the genitalia of the student defendants, forced plaintiffs to perform acts of fellatio, forced plaintiffs to watch similar acts performed on other female students and forced plaintiffs to watch while the student defendants offensively, but non-sexually, touched their teacher . . . .25

In the first peer sexual harassment case, Jane Doe was harassed throughout the seventh and eighth grades by boys at school making sexual references involving hot dogs and calling her a “slut” and a “hoe.”26 In another early case, one boy was “forcibly restrained and bound to a towel rack with adhesive tape” that was also used by fellow football players to tape his genitals as he came out of a shower.27Among reported cases are many of sexual harassment by band directors or music teachers28 and athletic coaches,29 with many special needs or emotionally disabled children as victims.30 One special-education student was led out of class by a boy to the boys’ bathroom, “where he and at least five other boys raped and sodomized her.”31 One seventeen-year-old girl “entered into a romantic relationship” with an adult male teacher from another school who was supervising a musical in which she was participating at her own school. He then “subdued, sexually assaulted, and forcibly raped” her, smashing her head against the wall, leaving it stained with her blood.32One recent case alleges a nineteen-year-old freshman girl was abducted, sexually assaulted, and murdered by an older male student who lived next door to her at school.33 Hundreds of cases along a continuum of violence can be found in the federal courts alone.

Sexual harassment continues as students proceed through the educational system.34 Students in college and graduate school are largely within the age range—eighteen to twenty-four years—at which vulnerability to sexual violence is highest,35 to which sexual harassment in education makes a substantial contribution.36 College women aged eighteen to twenty-four are three times more likely than women in general to be sexually violated; college-aged men students are seventy-eight percent more likely than nonstudents to be victims of rape or other sexual assault.37One study of interaction between faculty and students found that approximately one quarter of faculty surveyed reported sexual involvement with female students.38 Mary P. Koss’s 1985 study of the sexual experiences of a sample of 3,187 female and 2,972 male undergraduates on thirty-two college campuses across the United States found that six percent had been raped in the prior year.39 Of her female respondents, 15.4% had been raped since age fourteen and an additional 12.1% had been victims of attempted rape since age fourteen.40 Of college men respondents, 4.4% said that after the age of fourteen, they had committed an act that met the legal definition of rape.41 The combined figure for women who had been victims of either rape or attempted rape since age fourteen, 27.5%, has become known as the “one-in-four” statistic.42 Koss’s fifteen percent completed rape prevalence rate from her study of thirty-two campuses has been replicated by further studies of college students on specific campuses.43 Over several decades, approximately one in four college women have consistently reported surviving rape or attempted rape in multicampus studies sampling thousands of college students.44 One recent study suggests that five percent of college women survive rape every year; some may be repeat victims.45 These data were largely confirmed by the AAU study in 2015.46

Women graduate students face a substantial further risk of sexual harassment by faculty, staff, and other students. In 1988, thirty-five percent of women graduate students said they were sexually harassed at their current institutions,47 and in another study as many as thirty percent of graduate women reported experiencing “unwelcome seductive behavior” from their professors.48 Rates of sexual harassment may vary by field. One study found that fully seventy-five percent of women graduates of psychology doctoral programs were sexually harassed by a faculty member not of their own sex during graduate school.49 Although disciplines have not been systematically studied for their rates of sexual harassment of students, women in some historically male specialties do report high rates. Medical education is especially notorious for sexist and sexual abuse and denigration of women students.50 A meta-analysis of sixty-two studies found that thirty-three percent of medical students were sexually harassed in their training.51 Preliminary findings further suggest that law students are exposed to a higher risk of sexual harassment than many other graduate students.52 One preliminary study found sixty-three percent of women law students reported being sexually harassed by faculty, compared with forty-four percent of other women graduate students; eighty-six percent of female law students reported sexual harassment by other students, compared with sixty-two percent of other women graduate students.53

While the legal, social, and empirical development of the claim for sexual harassment initially centered on teacher-student sexual abuse, students connecting with each other through social media and online after the turn of the present century produced an explosion in the exposure of, and response to, sexual harassment of students by other students. When time periods and campuses are specifically focused, and the inquiry is expanded to include forms of sexual harassment in addition to rape, the picture becomes deeper and sharper, and worse not better. Between 2.8% and 4.9% of college women have been found to have been raped during a given academic year; up to 15.5% are sexually victimized by rape and other than by rape, with a substantial number violated repeatedly during college.54 Among first year college women, 15.4% reported either an attempted or completed rape in which they were incapacitated, usually with drugs or alcohol; nine percent reported an attempted or completed forcible rape,55 with drug rape emerging as a type of sexual victimization distinctly prevalent on college campuses.56 Almost half of sexually victimized college women experienced more than one incident during the academic year.57

Research on sexual abuse of students has revealed fundamental facts of sexual assault, which becomes sexual harassment in the legal sense because equality law applies in schools: there is a great deal of it, most perpetrated by individuals known to the victim to some degree, most of it never reported, and most perpetrators never officially held accountable in any way.58 Noting all the unreported rape this data revealed, David Lisak identified the need to study undetected rapists.59 His research found that most men who rape and are not detected are adept at identifying victims and testing their boundaries; plan and premeditate their attacks; groom and isolate victims physically; control their impulses to use only as much violence as is instrumental in terrifying and coercing their victims into submission; employ psychological weapons like power, control, manipulation, and threats, backed up by physical force, rarely resorting to other weapons; and deploy alcohol deliberately to incapacitate victims.60 He found that a majority, sixty-three percent, of undetected rapists are serial offenders, averaging six rapes each.61 A history of committing sexual assault before college was the most powerful predictor of offending.62

Lisak and Miller is the only study to conclude that the majority of rapes by men college students are intentional acts of conscious predation against targets selected for their vulnerability and maneuvered into defenselessness by the same men over and over again. No doubt this pattern is accurate for a percentage of perpetrators. Reassuring as it is to think that a few bad apples commit most campus rapes, recent empirical work has found this conclusion to be seriously overstated numerically and flawed as a focus for policy. Later systematic research on exactly what cohorts of men commit college rapes concludes that 10.8% of a sample of college men reported perpetrating at least one rape from fourteen years of age through the end of college, with most of their likelihood of raping being low or time-restricted.63 Most who reported raping did so during one academic year, suggesting that the validity of the campus serial rapist assumption is “surprisingly limited.”64 The predictability of raping while in college based on raping while in high school was also found to be low; most men students raped either more or less than they did in high school while in college.65 The researchers concluded that “at least 4 of 5 men on campus who have committed rape will be missed by focusing solely” on men who perpetrate rape across multiple college years.66 Such men were also found not at high risk of raping when entering college and to account for a small percentage of campus perpetrators of rape.67

No doubt there is much to both sets of findings. The Lisak research appears aimed at correcting an overly sympathetic image of so-called date rape as bumbling acts of callow youth who misread ambiguous sexual signals of passive girls who are drunk and/or naïve and/or overeager for acceptance. Perhaps a benign image (if this is one) has been overcorrected to converge with a formerly overly malign one. Imagining the cynical serial rapist prowling the campus hunting his next victim makes rape seem relatively simple and easy to detect, identify, predict, and stop; it also makes rape seem isolated and exceptional rather than systemic, evil rather than unequal. Taking a moral rather than explanatory approach substitutes condemnation for analysis. Given that men who rape have been found to be normal in virtually all material respects,68 so that normal masculinity under conditions of sex inequality is consistent with sexual predation, the behaviors found by Lisak are to some extent normative in masculinity.

Most consistent with the sweep of the evidence, including Lisak’s contextualized, is the conclusion that rape is a systematic act of sex inequality, disproportionately but not exclusively committed by men against women, encompassing masculine norm-hyper-conformists, group culture-followers, reckless unconscious misogynists, insecure strivers for male bonding, narcissistic egotists, aggressively oblivious nonempathetic advantage-takers, as well as conscious predatory serial exploiters. For equality purposes, the fact that sexual violation is essentially socially permitted, even supported, is more important than anyone’s particular location on this spectrum.

Investigating specifics of context and climate, looking for factors that may vary or explain variance in findings, some studies have found that fraternity men score higher on attitude scales that are supportive of rape,69 as well as higher in use of verbal coercion, drugs, and alcohol to obtain sex.70 Several leading researchers have concluded that studies converged on the conclusion that fraternity men are far more likely to rape than nonfraternity men, and that fraternity culture includes “group norms that reinforce within-group attitudes that support perpetrating sexual coercion against women.”71 One study that found no effect of fraternity membership as such on attitudes supporting rape points instead to increased perceived male peer support for exploiting women through alcohol combined with the amount of alcohol men consume72—which of course may be correlated with Greek life.73 Alcohol consumption is a factor in sexual assault both for victims and perpetrators; women who report higher levels of attempted and completed rape also report higher levels of alcohol consumption.74 Clearly, campuses and fraternities vary considerably, although the “discourse, rituals, sexual ideology, and practices that make some fraternity environments rape prone” do exist.75Rape myth acceptance, which tends to flourish in such environments, has also been found associated with greater racism, sexism, homophobia, ageism, classism, and religious intolerance.76 This reality likely contributes to the intersectional sexual assault that disproportionately targets young women of color.77

One explanation for the persistence and prevalence of campus sexual assault is that some college cultures support it. Studies suggest that rape cultures are fostered on college campuses when rape by acquaintances or dates—most frequently but not exclusively of women students by men students—is an encouraged and accepted, even integral, part of campus life. Peggy Sanday, who studies sexual ideologies cross-culturally, distinguished rape-prone societies—those in which the reported incidence of rape is high, and either excused as a ceremonial measure of masculinity or permitted by men to threaten or punish women—from rape-free societies, those in which the reported incidence of rape is low and in which sexual aggression is disapproved and punished.78 Among U.S. campus cultures, Sanday found rape-prone ones characterized by attitudes and behaviors “adopted by insecure young men who bond through homophobia and ‘getting sex.’ The homoeroticism of their bonding leads them to display their masculinity through heterosexist displays of sexual performance.”79 This is clearly gender-based behavior. In rape-prone campus cultures, men students receive their information about women and sex from pornography, target women at parties for sex and watch their buddies rape them (live pornography), and take advantage of drunk women routinely on an accepted, even planned, basis.80 A campus rape culture81 could empirically be considered one in which 55.7% of men students report obtaining sex by verbal harassment, or one in which one quarter of male students report using drugs or alcohol to get sex, and 8.6% report at least one use of force or threatened force to obtain sex.82

Sexual harassment harms students distinctively in their education, as well as emotionally and physically, producing the injuries and damage to the person common to any sexual assault as well as destruction specific to the educational experience. Victims of sexual harassment consistently report trauma.83 The frequency of sexual harassment is related to the severity of posttraumatic symptoms and other psychological distress, even when controlling for other trauma history, including abuse in childhood and intimate partner violence.84 In addition to these harms, experienced by all victims of sexual harassment, students who are harassed in academic settings sustain damage to their education. They report worse experiences with faculty and advisors and lower confidence in their academic competence; they say they feel less able to speak up in class and less respected on campus.85 Female graduate students may avoid enrolling in a course in order to avoid a professor who presents a concern;86 they may avoid or drop a class to avoid a harasser (thirty percent), or switch mentors (nine percent).87 Sexually harassed students may change disciplines or leave school entirely as a result of the harassment. One Title IX complainant who filed with OCR reported to a journalist:

After an attempted assault my freshman year, I left school and was hospitalized for two days because I was ill from stress. When I came back I got a D on an exam—up until that point I had been a straight-A student. I stopped taking courses I thought he would be interested in, stopped hanging out with groups of mutual friends and refrained from participating in organizations he was a part of. I suffered panic attacks when I ran into him.88

Sexual harassment of students damages the developing person in ways that are distinctive to the educational setting, restricting women’s advancement as individuals and as a group.89 Imagine attempting to focus on studying and learning when you have just been raped, or feel you may be about to be. Sexual harassment in education is a major barrier to the achievement of equality for women, to which an equal education is essential.

Reporting sexual harassment to school administrations frequently becomes a distinctively damaging part of the abuse experience, termed “betrayal trauma,”90 by exacerbating and frequently exceeding the harms of the original assault. Students often identify with and trust—even love—their schools, and are dependent on them in many ways. Students frequently believe the institutions they dreamed of attending will identify with and want to help them. Uncovering and living through the slowly unfolding nightmare of its other agendas and higher priorities comes as a shock. It is remarkable how many accounts of sexual harassment in education focus on the school turning against the reporting student rather than on the sexual abuse itself. Many a student who begins the process believing in the beneficence and caring of their institution and its intentions is grievously, even viciously, disappointed.

Prominent examples at the college level include a young woman raped by an acquaintance in a college dormitory:

Some nights I can still hear the sounds of his roommates on the other side of the door, unknowingly talking and joking as I was held down. . . . Eventually I reached a dangerously low point, and, in my despondency, began going to the campus’ sexual assault counselor. In short I was told: No you can’t change dorms, there are too many students right now. Pressing charges would be useless, he’s about to graduate, there’s not much we can do. Are you SURE it was rape? It might have just been a bad hookup . . . . You should forgive and forget.91

Many students recount similarly callous treatment by their schools, making the major trauma that marks their education not even when they are raped, but when they report being raped. The reactions to their reports provide a veritable lexicon of ignorance, victim-blaming, and rape myths, prominently including trivialization and demonstration of the belief that rape is inevitable. One young woman’s dream of freedom and of showing the world what a minority woman like her could do took “a violent, crashing fall in June 2012”:

It was then that I reported several sexual assaults at the hands of my ex-boyfriend to the school administration. After an “informal mediation” arbitrated by the dean of students in the College, my rapist promptly left to graduate. I was then left to deal with my emotions regarding, as the dean so eloquently put it, this “dispute between students.” To deal with this turmoil, the dean had me see the resident trauma expert at Student Counseling Services. This “expert” ended up telling me that “You should probably expect something when you sleep in a bed with a guy.”92

One young woman who said she was raped by a classmate and did not report at first due to the trauma of the event, decided to report when two other women told her the same boy had assaulted them. “During my hearing, one panelist kept asking me how it was physically possible for anal rape to happen.”93 The boy she accused remained on campus.94 One girl raised in a conservative Mennonite home was one of several students who reported having been raped at Bob Jones University:

She hadn’t even held hands with a boy when, at age 19, she says her supervisor at her summer job raped her. Two years later, and desperate for help, she reported the abuse to the dean of students at her college. “He goes, ‘Well, there’s always a sin under other sin. There’s a root sin,’” [she] remembers. “And he said, ‘We have to find the sin in your life that caused your rape.’”95

She left college and told no one until five years later.96 One male student who was raped three times by a classmate and was forced to leave campus at knifepoint said that his principal told him to “be a man” and “just deal with it.”97 When one young woman reported to the President of her school that she was sexually harassed by her basketball coach, she said the President told her “sometimes men will flirt and harass you in the ‘real world’ and that you should learn to deal with it,” and she should not be troubled, although similar complaints had been made against the same coach many times before.98One special needs student who was sexually assaulted and battered by a male classmate was told by her teachers “not to tell her mother about the incident and encouraged . . . to forget it had happened at all.”99

What is known about the sanctions schools impose for sexual assault on campuses, although limited, supports this generally dismal, even appalling, picture of unresponsiveness to victims who depend on their schools. Most students found to have harassed other students, including violently, stay on campus.100 Most teachers who sexually abuse students remain in classrooms.101 Accounts of institutional betrayal litter the mainstream press, social media, and Title IX case law.

II. legal background

How have schools been permitted to behave this way, when educational sex equality is guaranteed? The primary route for complaint against schools for discriminatory treatment under Title IX is the federal administration through the OCR of the Department of Education, complaints that can, but so far have not, resulted in loss of federal funds to a school.102 Sexual harassment was first recognized as sex discrimination in education under Title IX in the private suit103 Alexander v. Yale University.104 Brought in 1977, in Alexander five women students joined by a man teacher claimed that sexual harassment by faculty members, which included rape and nonresponse by Yale—specifically the absence of an established grievance procedure for handling sexual harassment complaints—violated the sex equality guarantee of Title IX, which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”105 The Alexander plaintiffs sought injunctive relief: a responsive procedure.106

By 1980, the case established the cause of action by survivors for sexual harassment in education as sex discrimination.107 In its wake, many steps forward in policy and culture commenced, as educational institutions reasonably recognized that they faced exposure to risk of loss—perhaps substantial liability, at least litigation—if they failed to address sexual harassment that occurred on their campuses.108 Some no doubt saw sexual assault as antithetical to educational quality and equality. The Franklin v. Gwinnett County Public Schools case, in which monetary damages were authorized against a school district that took no effective action against sexual harassment of a student by her coach and teacher, sustained and supported this progress,109 expanding available relief and increasing the incentive for schools to be vigilant and proactive against sexual harassment in their purview.

In 1998, it all came crashing down. Such claims, hence incentives, were largely destroyed when the Supreme Court in Gebser v. Lago Vista Independent School District confined damages in Title IX actions for teacher-student sexual harassment to schools that had received notice to “an official who at minimum has authority . . . to institute corrective measures”who then responded with “deliberate indifference.”110 One year later, the Court applied the same institutional liability principles, with some increased difficulty for survivors added, to student-student sexual harassment in Davis ex rel. LaShonda D v. Monroe County Board of Education.111 Once the Courtheld schools not liable in damages for sexual harassment in faculty-student or peer situations unless they were deliberately indifferent to the discrimination, and they had to know about it to deliberately be indifferent to it, schools perceptibly relaxed. The exhale was audible from coast to coast. Under this doctrinal regime, sexual harassment, including rape, in schools from elementary to post-secondary, the data substantiate, has once again proceeded with effective impunity, largely undeterred to this day.112

The legal architecture for claims against schools for sexual harassment in education developed by courts following these Supreme Court decisions has several elements. Provided the defendant institution receives federal funds, the harassing treatment must be based on sex or gender, which—especially when heterosexual behavior is involved, but often where behavior is sexual regardless of the sexes of the parties—is typically, although not always, treated as obvious.113 Gay, lesbian, bisexual, and transgender students and behaviors are covered.114 Homophobic or otherwise same-sex harassment has often been found to be sex-based under Title IX,115 especially after being recognized under Title VII,116 although again not always.117 The complained-of behavior must, in general, be unwelcome,118 but sometimes youth, or a (usually inexplicit) notion of hierarchical power, particularly in teacher-student situations, substitutes for unwelcomeness119 or can even overcome seemingly welcome behavior for liability purposes.120

In form, the challenged behavior can be quid pro quo or create a hostile educational environment.121 A hostile environment created by student-on-student harassment must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”122 Inquiry under this test includes all the surrounding circumstances, expectations, and relationships, including the ages of the harasser and victim and the number of individuals involved.123 Some courts have held that for peer sexual harassment to meet this standard, the behavior must be more widespread than a single instance and its effects must touch the whole educational program or activity.124 Other courts have given a more generous reading to student abuse, implicitly focusing more upon severity.125

Notice of the acts alleged must be given to the right person at the school, a fact-based inquiry. An “appropriate person” must have “actual knowledge of the discrimination in the recipient’s programs and fail[] adequately to respond.”126 When notified, the funding recipient must “act[] with deliberate indifference to known acts of harassment in its programs or activities.”127A funding recipient is deliberately indifferent “only where [its] response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances,”128 also a fact-intensive investigation. The response of the institution must amount to “an official decision by the recipient not to remedy the violation.”129

In the context of student-student sexual harassment, the claimed deliberate indifference must “cause students to undergo harassment or make them liable or vulnerable to it.”130Schools’ liability for peer sexual harassment is further limited to situations in which the school has “substantial control over both the harasser and the context in which the known harassment occurs.”131 Considerable tolerance is built into the standard for the behavior of students against other students—“schoolchildren may regularly interact in a manner that would be unacceptable among adults”132—as is flexibility toward school administrators in dealing with the disciplinary issues harassment raises.133As the Court put it in Davis, “courts should refrain from second-guessing the disciplinary decisions made by school administrators,”134 giving schools considerable autonomy and discretion to manage disciplinary affairs on this issue.135

III. deliberate indifference in practice

As it is required for institutional liability under Title IX, the deliberate indifference doctrine conceptually has two parts: the schools’ knowledge (making the deliberate part possible) and the schools’ actions in response to that knowledge (the indifferent part).136 First, the right person at the school must know of the alleged act of discrimination, which requires a report to an official who has the power to remedy the situation.137 Then, the school must respond not unreasonably to what it knew.138 The basic floor for no deliberate indifference is that the school, upon being correctly notified of a teacher’s sexually harassing conduct toward a student, “did not ‘turn a blind eye and do nothing.’”139 The relation between the two facets of the standard is, observably, proportionality: the appropriateness of the response measured against facts known when the institution acted or failed to act.140Obviously fact-heavy, making rules difficult, deliberate indifference can be determined as a matter of law when facts are undisputed (which happens frequently in this setting).141 In general, the standard is easy for schools to satisfy, including on motions to dismiss or summary judgment, while doing little about sexual abuse—either its perpetrator or its consequences for survivors and other potential targets. Deliberate indifference is as hard on victims as it is easy on schools. Varying by circuit, heedless incompetence or even malignant cover-ups may not always qualify as deliberately indifferent.142 A case finding deliberate indifference in which a school has held a hearing is rare.

Perhaps the strongest factual cases are now settled, so produce no new judicial decisions. But a close reading of all the Title IX cases decided in the federal courts in 2015 that substantially discuss the deliberate indifference standard, together with an assessment of the many brought in the years since Gebser, shows a vast disproportion between the number of cases that have lost on deliberate indifference and those that have won.143 Yet little distinction emerges between the facts of cases dismissed for legal insufficiency or in which summary judgment is granted for the school, despite the school’s failure to stop the sexual harassment or remedy the injury, and those that survive these preliminary motions.144

A. What Did They Know?

The lack of effectiveness and absence of realism of the deliberate indifference standard begin with the requisite notice. Schools need only act on information they had, but “the precise boundaries of . . . ‘actual knowledge’ . . . remain undefined,”145 making the contours of the knowledge required for Title IX liability not notable for transparency or consistency. Decisions often appear arbitrary and contradictory. Some cases essentially require formal complaints for actual notice,146 which is a lot to require, especially of a child or even a young adult. Many display a narrow, specific, individualized notion of notice, requiring notice of the risk the particular perpetrator would sexually abuse the particular victim before he does, in the way he does.147

The implicit rule often appears to be that schools do not know enough for actual notice standards until they are informed of an exact specific possibility that then becomes an actuality.148 When parents tell a superintendent about texts between a teacher and their daughter, the superintendent calls the teacher a “sick pervert,” the parent says the teacher would “end up raping somebody,”149 and he then rapes their daughter, this is actual notice.150 (Who knew?) But numerous complaints for years and years of a teacher-and-coach’s sexually inappropriate verbal and physical conduct with girl students are “stale,” if many years have gone by, or “too different,” if verbal rather than physical, to constitute actual notice to the school of sexual danger to female students when this same man then has a sexual affair with an underage girl student.151 And when a professor grabs a student consulting with him in his office, places her on his lap twice, rubs her stomach and fondles her breasts, a trial court finds that the school had no notice despite a prior complaint by another student of the same conduct by the same professor to the school’s ombudswoman, and the conduct allegedly continuing against the plaintiff after the incident of which she complained.152 Essentially, we are waiting for the other shoe to drop, and then another, which even then may be found irrelevant.

Because notice so often calls for a longer series of ignored reported events, it requires more assault. One plaintiff alleged she was sexually harassed by her physical education teacher the entire time she was in high school. Between her first and second complaint—the second finally found sufficient for notice—her whole high school experience passes before your eyes.153 Sometimes, for actual knowledge, the report is required to identify not only the specific student and perpetrator, but also the specific behavior. When one young student complained of “an improper relationship” with her dance teacher, but not that it was sexual, although parents and other students had repeatedly complained to the school of an “obsessive and unusual relationship” between the two, no actual knowledge was found by the school until the student told its authorities that she had been sexually molested for two years—after she graduated.154 The logic of this prong of the doctrine, in relation to the rest, frequently leaves the impression of permitting sexually predatory teachers at least one free bite.

Much, even all, depends on what a court is willing to infer or project from known facts about the likelihood of future similar or worse facts—in another vernacular, foreseeability. The Seventh Circuit has held that the “school district need not possess actual knowledge of a teacher’s acts directed at a particular plaintiff, but it must still have actual knowledge of misconduct that would create risks ‘so great that they are almost certain to materialize if nothing is done,’” such as harboring a teacher who is a serial harasser.155 Of course, several students have to have been harassed and previously reported, or the harasser has to have been known to harass when hired, for the school to know a harasser is serial. Some courts apply an individual victim predictability standard to notice. For example, suspicions that a woman teacher was too friendly with the students and was told to be more professional were found insufficient to constitute actual knowledge when the teacher was abusing a female student for two entire years, because the school was not on notice that she had harassed this specific student.156

The inquiry into notice can focus on knowledge of substantial risk of abuse to students,157 or on “whether the appropriate official possessed enough knowledge of the harassment that he or she reasonably could have responded with remedial measures to address the kind of harassment upon which [the] plaintiff’s legal claim is based.”158 In two different holdings within this range in the same case, one court recently found that appropriate authorities were aware of verbal harassment by students who were responding to a sexual relationship the victimized student was having with the assistant principal, but the school was not aware of the affair itself.159 Why the assistant principal is not the school, given his obvious awareness of the situation, was not discussed. Moreover, the students knew about the affair: they were verbally harassing the plaintiff about it. The information of which the school was found insufficiently aware was being spread around the school through verbal harassment by students. Why didn’t this notify the school of a need to investigate? So when students engage in slurs and name-calling because the assistant principal is sexually abusing a student, the slurs about it are actionable but the sexual imposition by an administrative official of the school itself is not.

By contrast, further showing the crucial role of inference, when another school was aware of “tendencies to pedophilia, sexual abuse, and harassment of school-age boys” by a teacher and influential former member of the city council, such “warnings that a teacher is prone to inappropriate attractions to students should have set off alarm bells.”160 Comparing the two cases, the flexibility, even arbitrariness, of reasonableness is apparent. In the latter case, the failure to stop the perpetrator’s grooming, aggressive pursuit of sexual relations, and offering of money in exchange for sex or a video of the plaintiff masturbating was “clearly unreasonable in light of the known circumstances.”161 By standards applied in other cases, this knowledge of “tendencies” could have been deemed overgeneralized, unspecific to this plaintiff, twenty-twenty intrusive disciplinary hindsight, and insufficient notice of actual events, making the failure to protect the student reasonable.162

Courts range between calling for knowing an individual has “potential” to sexually harass students,163 to an intermediate standard of knowing of “substantial danger to students”164 or “substantial risk of serious harm,”165 to requiring a tighter fit between prior acts and ultimate harm, as in the Seventh Circuit’s “almost certain to materialize if nothing is done”166 standard. “Generalized” knowledge of threats of sexual assault is not usually considered sufficient for actual notice,167 although some courts have found actual notice when members of the same sex-based group as were previously victimized were later victimized by the same sex-based group. In one example, both victims (seventh-grade basketball players) and perpetrators (eighth-grade team members) belonged to the same groups who had allegedly been involved in incidents of sexual harassment in the school locker room before. Whether the coach knew about the prior harassment became a genuine issue of fact.168

Some cases find actual notice, then deliberate indifference, if prior reports of the same perpetrator against other victims went uninvestigated, or the perpetrator was investigated but nothing was done about what was found, and then the same perpetrator violently abused another victim in the same way.169 Generally, though, courts have held that notice of prior incidents of which authorities were informed needs to be either of behavior by the same individual perpetrator(s) whose conduct forms the subsequent complaint, or against the same victim—sometimes both. One girl with fetal alcohol syndrome and learning disabilities who was assaulted twice, for example, won on preliminary motions when the school board was allegedly aware of the prior incident (which it “wrongly deemed consensual”), a psychologist had noted “there is a great likelihood of future abuse against this young woman” after the first incident and before the second, a pattern of taunting and sexual touching took place in between, and the Board ignored it all and took no steps to protect her.170 Similarly, the Eleventh Circuit has made clear that the “actual knowledge” required to hold a federal funding recipient liable need not be knowledge about prior harassment of the specific Title IX plaintiff, but “the substance of that actual notice must be sufficient to alert the school official of the possibility of the Title IX plaintiff’s harassment.”171The Tenth Circuit observed that the Supreme Court “implicitly decided that harassment of persons other than the plaintiff may provide the school with requisite notice to impose liability under Title IX.”172 Taking this approach to notice is unusual. Focusing on two Eleventh Circuit cases, a recent district court case found that notice to the defendant institution of similar allegations about the same perpetrator(s) who went on to sexually harass the present victim were inadequate.173 All this builds on Gebser v. Lago Vista Independent School District, in which the principal knew of prior verbal sexual statements by the teacher/coach perpetrator, but the school was found not to have notice of the subsequent sexual relationship with the underage student.174

In light of these divergent developing standards, two cases turning on adequacy of notice that find a university deliberately indifferent for ignoring a known risk of sexual assault stand out. In one, the known risk was specific to a perpetrator; in the other, to a university-sponsored program. Tiffany Williams sued for being gang-raped by several athletes, one of whom the university knew when he was admitted had committed sexual harassment at other colleges. The perpetrators were suspended but reinstated, the internal proceeding moving neither promptly nor equitably, producing an atmosphere that Ms. Williams alleged was threatening, humiliating, abusive, unsafe, and hostile for women students, as well as forcing her to leave and not return. The Eleventh Circuit reasoned that when schools receive actual notice of high risk—“the alleged harasser’s proclivities”—before the Title IX litigant is assaulted accordingly, doing nothing to supervise or train such students “substantially increase[s] the risk faced by female students” of sexual assault,175 rendering the school deliberately indifferent to the resulting gang rape three times over. Judge Adalberto Jordan’s concurrence described the majority’s theory that the school ignored its preexisting knowledge of past misconduct, producing Title IX liability, as “before-the-fact deliberate indifference.”176 Certainly, deliberate indifference is substantially easier to show when the notice requirement is rendered as a failure to mitigate a known hazard of sexual harassment and when subsequent consistent acts then occur.177

Similarly, in Simpson v. University of Colorado, two female students were sexually assaulted by football players and recruits in connection with a program to recruit high school players by bringing them to campus and pairing them with women-student “Ambassadors” instructed to show them a “good time.”178 The Tenth Circuit found that the risks of sexual assault in the absence of adequate supervision were known.179 The knowledge included general knowledge or risk of sexual assault by student athletes, prior reports of assaults by recruits at a football player’s party, and a local district attorney meeting with university authorities addressing the need for recruit supervision and sexual assault prevention training for football players.180 The school did nothing. The Tenth Circuit held that a jury could infer that the need for training was obvious and the likelihood of Title IX violations—sexual assault in this case—was so high that the coach could “reasonably be said to have been deliberately indifferent to the need” to prevent it.181 In other words, the university was sufficiently on notice of a more general risk of sexual assault and harassment during the recruiting program as, taking no remedial action, to be deliberately indifferent to the conditions that made the specific assault all but inevitable. Other courts have adopted variants of this theory both before and after these leading cases, although the “substantial risk” has been variously framed, sometimes requiring that the notice be quite specific.182 Only the Fourth Circuit has explicitly rejected this entire approach, disallowing all but the narrowest and most specific forms of notice.183

Notably, Williams produced its result by distinguishing Gebser and Davis, while continuing to attend to their concerns, on the ground that in neither Supreme Court case did the schools have notice of the past sexual misconduct of the alleged perpetrators.184 Simpson similarly overturned summary judgment for the school based on reasoning that the Gebser/Davis notice logic did not strictly apply to that case either, not that its notice standards had been met, because the assaults in Simpson were alleged to arise out of an official school program that promoted them. The Tenth Circuit creatively combined constitutional and statutory analysis185 in finding that the risk of the assault that occurred was “obvious”186 because extensive reporting and studies showed that the association between college football and sexual misconduct was widespread, including at the school, implicating the recruiting program. The police had been involved in prior incidents and met with school officials who promised reform. Signs of inadequate guidance of the program nonetheless proliferated; two months prior to the assaults at bar, a woman employee of the athletic department had been raped and was discouraged from pressing charges.187 Although this is not an especially unusual fact pattern, inferring that a policy based on a pattern of reality meets the Title IX notice requirement through combining constitutional and statutory reasoning is unusual.188It further speaks to the current legal framework that a valid claim of liability required the school be found to be promoting rape. The resulting institutional incentive not to know about sexual abuse committed by a person one is hiring or admitting could not be clearer. Hear no evil, see no evil, incur no liability.

One court huffed that a student need not “be raped twice before [a school is] required to appropriately respond to . . . requests for remediation and assistance.”189Yet the fact that a school does not adequately address a report of sexual harassment the first time it is made does not necessarily make the institution liable.190 This sympathetic court felt the need to state that “[i]n the Title IX context, there is no ‘one free rape’ rule”191 for a reason. The requirement that a student can only recover damages based on injury done by actions of the university after the harassment is known,192 particularly in light of the many courts that read Davis to require that a school, to be deliberately indifferent, subject a victim to “further discrimination,”193 can amount to something very close to that.

B. What Did They Do?

Schools are routinely found sufficiently responsive to reported sexual harassment as not to be deliberately indifferent when they do almost nothing about it. The most stringent standards to which schools have been held in this highly fact-intensive inquiry, resulting in the most positive outcomes for sexually harassed students, have occurred in cases in which a teacher had sex with or sexually molested an underage, disabled, or boy student—or all three at once.194

The pattern in which courts are most likely to find deliberate indifference by the school is one in which the student is multiply vulnerable, the school does literally nothing about reports its appropriate officials received as the abuse continues—preferably by the same perpetrator against the same victim—and the same abuse is repeated or escalates to a sexual assault. Even if the school is on actual notice that a teacher was sexually harassing students, and its responses are demonstrably ineffective in stopping or remedying the harassment, schools have been held not deliberately indifferent where they investigated, interviewed, and talked to the alleged perpetrator.195 If the school talks with the victim and the perpetrator, perhaps separates the two—as if the situation is about him and her as individuals—and gives the teacher a good talking-to, the school will typically not be found deliberately indifferent, even if no real remedy is provided to the student and no preventive change is implemented regarding the perpetrator or the school’s procedures. When a school interviews a student upon notice of sexual harassment and removes her from the alleged offender’s classroom, no deliberate indifference occurs.196 What happens to the other students of the same sex in that classroom is apparently not a concern. One court found that asking the professor who had allegedly sexually harassed his research assistant to have no further contact with her was a “cure,” granting the school’s motion for summary judgment.197

If the deliberate indifference requirement that a school’s response to actual knowledge be “unreasonable in light of the known circumstances”198 seems to give wide latitude to institutions, that is because it does. Generally speaking, if administrators speak with the parties, separate them, tell the perpetrator(s) not to do it again, call the police in severe cases or suggest the parents do so, the school’s response will not be found unreasonable, hence not deliberately indifferent, even as the abuse continues. In one example, a male student exposed himself, kissed the victim, a special education student, and lifted her skirt. Even though the district was aware of his prior disciplinary record and did not immediately remove him after the incident, it was not deliberately indifferent where it asked police to investigate, separated the students, and provided her with an escort at all times.199 Nor was a school deliberately indifferent to bullying and harassment of which they were aware when they moved the victim’s locker further away from one harasser, assigned the victim and perpetrator to different study groups, ordered bullying students to stop abuse the school saw, called parents after another incident, and eventually recommended expulsion of students after an investigation.200 The Fourth Circuit appears to be the least sympathetic to victims under this standard. In one recent case, for example, a boy who was assaulted and harassed for a year was finally forced to engage in sex with another male student in the library and bathroom. He told no one about the sexual assault. The school was found not deliberately indifferent because after one prior incident was reported, it separated the two in the classroom, suspended the perpetrator, and gave the victim an escort to the bathroom.201 Then, the perpetrator was allowed to return and was placed in the same classroom with the victim, whom he allegedly raped.202

There are a few strong cases for sexual harassment plaintiffs on the question of responsive action. These include, for example, one in which a school district’s outright dismissal of sexual harassment allegations involving a female teacher and male students, reported by one teacher to a principal, and its initial failure to investigate or to interview any students in a later investigation, potentially amounted to deliberate indifference attributable to the district.203 A failure to take action once a school district learned that its initial response to complaints of sexual harassment had been ineffective could, another court found, support a reasonable juror’s conclusion of deliberate indifference.204 One trial court similarly found that a reasonable juror could conclude that when a school district received notice of a second complaint, having failed to follow up on its directives in response to previous complaints, the district was put on notice that its response to the first complaint had been ineffective, hence could be found deliberately indifferent.205 Students have been found to raise an issue of material fact as to deliberate indifference, sufficient to deny a school’s motion for summary judgment, where a school board received credible information of several instances of alleged sexual harassment but took no action, especially where it failed to investigate the teacher’s background (which suggested pedophilia, although the police apparently found the allegations inconclusive) when he was hired.206 To do literally nothing, at least sometimes, is to be potentially deliberately indifferent. One would hope.

Most of the strongest cases for victims on school response appear to be decades old. In one of only two cases found in the 2014-2015 federal courts in which nonminor, nondisabled women students prevailed on deliberate indifference motions to dismiss or summary judgment, a court addressing a plaintiff’s allegations of peer drug rape assessed the school’s response as follows:

Her allegations support an inference that [the school] engaged in the investigation with the intention of minimizing the incident, protecting the school’s reputation, and putting the incident behind the institution. Finally, she alleges that [the school], after ignoring or even encouraging continued harassment, informed her that she could not be protected on campus and facilitated her withdrawal. If those allegations are ultimately supported by the evidence, they could constitute deliberate indifference.207

From experience, such institutional responses are not unusual. That a federal court accepts these responses, as alleged, as potentially real and legally sufficient to satisfy deliberate indifference standards is unusual. The responses are also sufficiently vindictive to exceed any indifference threshold, even a deliberate one, coming closer to malignant concern.

Effective action is seldom required of a school. If it is, teacher-student harassment is likely involved.208 One court held that a reasonable jury could find that a university’s response to several alleged harassing incidents by a professor amounted to deliberate indifference where a professor had forcibly grabbed, kissed, and fondled a student in his office, having made unwelcome advances toward female students twice before.209 After the first incident, he was reprimanded and told he would suffer serious consequences if he did it again; after the second time, the university sent him for counseling but failed to follow up.210 The response was held deliberately indifferent because it “was not plausibly directed toward putting an end to” the professor’s abusive behavior and instead “amounted to condoning” it.211 Another court held that when the school principal “responded to the situation weakly, by reiterating to all coaches the standards for behavior,” the school “d[id] not act in a way that could have been expected to remedy a sexual assault,” hence “the institution [wa]s liable [under Title IX] for what amount[ed] to an official decision not to end discrimination.”212 These few results favorable to students harassed by teachers appear alongside many more factually similar cases marked by the opposite outcome.213 Often teachers are investigated and reprimanded when reports or suspicions of sexual harassment of students arise, but their contact with schoolchildren is allowed to continue; when later abuse is committed and reported, and only then is action taken, no deliberate indifference is typically found.214

If meeting the standard for deliberate indifference in cases involving teachers sexually harassing students can be a heavy lift, even more difficult for plaintiffs is sexual harassment of students by other students—a substantial amount of the sexual abuse students suffer on campuses. Especially in the student-on-student setting, showing deliberate indifference, courts say, following the lead of Davis, is supposed to be “‘an extremely high standard to meet’ in and of itself.”215 Many cases founder on this rock or, one suspects, are not brought at all. Courts look to see if the recipient’s response to student-on-student harassment reports is “clearly unreasonable in light of the known circumstances,”216 if delays without justification occur in remedial action, and the response or delay in response causes students to be harassed or makes them vulnerable to harassment.217 Regarding the requirement of clearly unreasonable response in peer sexual harassment cases, “[t]his ‘high standard’ precludes a finding of deliberate indifference in all but ‘limited circumstances.’”218 The school in Davis failed to respond to her severe abuse by a classmate in any way at all for five months.219 Delays in investigating reports,220 and lack of communication and follow-up or failure to notify parents or relevant others, resulting in the need to remove the child from school and place her in an inferior educational setting, can support a finding of deliberate indifference,221 although such holdings are far less typical.

In addition to focusing on the unreasonableness of a school’s response, many courts in peer cases scrutinize the school’s “substantial control over both the harasser and the context in which the known harassment occurs.”222 One court found no substantial control when a rape occurred in an off campus apartment.223 Clearly teachers have more power over students than other students do, but the capacity of peers to make an educational environment unbearable and unequal for other students, and the difficulty of escaping them, is not necessarily less. From their treatment of the facts, courts appear to think that school superiors have more control over teachers than they do over students, arguably dubious when students need permission to go to the bathroom or are dependent for recommendations for advancement or careers.

The Davis dictum that peer sexual harassment is less likely to be serious than teacher-student harassment224 is inaccurate. Peer sexual harassment can be life-and-death serious. One student committed suicide after alleged sexual assault on her campus, including three separate instances of sexual violation on the same night.225 Another student with depression and Asperger’s syndrome committed suicide due to harassment by other students that included calling him a faggot.226 The violated girl’s mother could not get the school meaningfully to discuss alternate accommodations for the next term;227 the boy’s school failed to develop a plan to investigate or address his bullying.228 In light of all the cases in which institutional nonresponses form part of a series of failed attempts by victims at getting help, query whether the treatment by these schools would have been found deliberately indifferent had the victims lived.

Lest this seem an extreme question, consider the First Circuit’s ruling in Porto, in which the foster mother of a disabled boy with fetal alcohol syndrome told school officials that oral sex was being forced on him by another boy student.229 The two were initially separated but put back in the same class a year later, whereupon the same perpetrator had sexual intercourse with the disabled boy in a bathroom.230 The Portos’ boy, who was taken out of school, hospitalized, and attempted suicide, won at trial under Title IX.231 On appeal, the First Circuit reversed, holding the school was not deliberately indifferent despite the fact that the known threat “was not abated” because deliberate indifference is “not [a test] of effectiveness by hindsight.”232 How putting the two back in the same class was “not unreasonable” under the circumstances remains elusive (as is how any subsequent assessment is not a species of hindsight). Similarly puzzling is the analysis of a subsequent court, distinguishing Porto, in which the school was found deliberately indifferent when it “demonstrate[d] a complete lack of concern about sexual contacts” between a learning disabled middle school girl and a student who raped her twice.233 Being raped twice may not always be necessary to establish deliberate indifference, but it certainly seems to help.

IV. equality critique

Closing in on two decades under the deliberate indifference test, its appropriateness to Title IX can be assessed by asking how different is the reality survivors face today from the time before sexual harassment in education was recognized as a legal equality claim. As things stand, schools have an incentive not to know about sexual harassment in their institutions, and when they do, to do little to nothing about it. They can only be liable for what they know, even when their own employees and superior agents engage in it, and any change they make or action they take can imply that something needed doing or correcting. This legal posture converges with schools’ concern to control cases internally so as to not look bad externally.

The point is not that it is absolutely impossible to meet the deliberate indifference standard. Situations can be selected whose facts can be made to conform to or exceed its requirements as victims’ realities are shoehorned into adverse legal standards. But the requirements of this doctrine are not only extremely difficult to meet by design, they prevent case after egregious case from being positively addressed, especially those not brought for these reasons. This doctrine has not promoted, and does not promote, sex equality in the educational setting.

The Gebser v. Lago Vista Independent School District decision, which originated deliberate indifference as Title IX’s liability standard, did not even try to justify it in equality terms, nor did the Davis extension to peer cases.234 The Gebser Court’s principal concern was to distinguish institutional liability for acts of employees considered independent and official decisions not to remedy, framed in terms of a generic “deprivation of federal rights.”235 Congressional intent was discussed only in terms of whether Congress contemplated damages against a school that did not know of the discrimination in its program.236 Gebser did not discuss whether Congress might have wanted schools, in order to guarantee and promote sex equality in education as the statute provides, to be held responsible for sex discrimination on their watch, empowering those with claims of hostile environments or otherwise unequal educational treatment to make such claims. Why the school’s awareness of discrimination became the threshold damages issue—what does the school’s knowledge of a student’s sexual harassment have to do with whether the student’s educational experience is equal?—and why a teacher or principal who is harassing a student is not assumed to be the school, given that authority and position enable harassment, a practice of inequality, were not discussed in these terms either.

Gebser contended that since the primary enforcement mechanism of Title IX required notice and an opportunity to correct, the implied right of action should also.237 Nothing requires such parallels between administrative and judicial enforcement tests. Given Congress’s clear purpose to produce equality in education, the real question is why it should be assumed that when a recipient educational institution is aware of discrimination, it will act to promote equality. There is not a shred of evidence that schools reliably did so before Title IX was interpreted to cover sexual harassment. As no sex equality argument supported the policy choice in Gebser of the deliberate indifference standard, none was offered for the use of unreasonableness for schools’ responses to reports in Davis. Reasonableness is not an equality standard. Indeed, it is defined by its fit with the status quo, which makes it an inequality standard when the status quo is unequal. Moreover, as the cases discussed above show, the elasticity, even plasticity, of what has been considered reasonable in this area often depends upon moral outrage; cases seldom mention inequality of educational conditions.238A reasonable response is not necessarily a reasonably equal one. The results of the deliberate indifference test, as they have played out in case law239—particularly set against the backdrop of the empirical findings on the experiences of victims,240 which have shown no reduction in sexual abuse—meet no sex equality measure, nor do they purport to. Under the aegis of this liability rule, the known rates of sexual abuse on campus have remained virtually unchanged for almost thirty years.241

The choice of deliberate indifference as a liability standard in Gebser,rather than being based on equality reasoning, was designed to keep the schools from being taken by surprise in being held responsible when students’ education was disrupted or destroyed by sexual harassment. But what particular school officials are regarded as knowing is not coextensive with whether the educational environment is equal or made equal for students, individually or collectively. Predicating the choice of doctrine on a reading of Congress’s decision to structure Title IX in a contractual framework under the Spending Clause242 does not compel the selection of notice followed by deliberate indifference. Nothing about the standard is specific to equality243 or to Title IX’s language or purpose. Nor did the Supreme Court discuss why the proportionality between what a school subjectively knew and what it objectively did was the appropriate equality measure for students. Instead, it was as if the terrain of equality begins in the institutional mind with scienter, rather than in an equal educational environment for the student, in which each student receives or is denied the equal benefit of an education on the basis of their sex.

The deliberate indifference test is especially inapt for an equality law that, unlike the Equal Protection Clause or any other equality statute other than Title VI, guarantees equal access to “the benefits of . . . any education program” free from sex discrimination.244 Title IX’s guarantee of the benefits of an education is an outcome standard. The Davis Court referred to “the equal access to education that Title IX is designed to protect.”245Why don’t schools have to create a sex-equal learning environment to satisfy that design? Given the harms routinely inflicted on students by reporting, to those who are in school to be educated and to their education, it is perverse that reporting is the sine qua non liability trigger. No student should have to make their educational experience more unequal in order to assert their equality rights, which has been their experience under this doctrine.

Well-meaning courts in the sexual harassment setting have struggled to wedge the realities of the often violent sex inequality before them into a concept that, in its intrinsic design, is unresponsive to that reality. Can deliberate indifference be made a workable and equality-promoting test for institutional liability for educational sexual harassment by a court determined to do so? With hideous facts, excellent litigation, and a sympathetic court, as the foregoing examination shows, equality-seekers can sometimes prevail under it against all odds. Apart from the unlikelihood of that perfect storm, the real problem remains that the standard itself has nothing to do with promoting equality. Schools need to do very little to show they are not deliberately indifferent because it is intentionally and inherently a flaccid, low, weak standard of accountability that focuses on the mind of the school rather than the equal education of the student, when it is equal educational benefits to students that Title IX guarantees. The test is designed to protect authoritative institutions (which children are in essence compelled to attend)246 from youngsters sexually victimized in, and often by, those institutions. Under this doctrine, schools are not required to deliver equality in education on pain of violating federal equality law. Deliberate indifference does not implement Title IX. As the Gebser dissenters put it, it “thwarts the purposes of Title IX.”247

Should notice matter, one might think that schools are already, in advance, amply aware of the high risk of each incident of sexual harassment occurring, given the data on sexual harassment. Campus climate surveys apprise schools of the situation on their own campuses, as does Clery Act reporting, as does the fact that sexual harassment is a group-based injury—meaning that each member of the group has the potential, especially high at the ages that precisely define school-age young people, to fall prey to sexual harassment.248 In its positioning of notice and response, deliberate indifference tends to treat each case as if it is individually uniquely personal to the parties, when the recognition that sexual harassment is sex-based discrimination is a recognition that it is not individual or personal, but driven by collective gender-based social dynamics that structurally endanger every member of the target group. The tendency of the notice standard to individuate, to make every assault an exception, entrenches the “one free rape” default baseline. One court noted early on, “[I]t appears that school districts are on notice that student-to-student sexual harassment is very likely in their schools, particularly in junior high school.”249Yet deliberate indifference allows every incident to come as a surprise: what a shock, this can’t happen here. (Reader: you are on notice as of now.)

A court, if it chooses, can require that the school respond effectively, but nothing prevents it from allowing a school simply to go through the motions in order not to be found deliberately indifferent to sex discrimination that is repeated, goes unaccommodated and unremediated, and continues to recur. Indeed, this happens time and again; it is why the data are as virulent as they are. A nominal investigation or hearing usually suffices to avoid a judicial finding of deliberate indifference, even if no relief, sanctions, or even findings result, and the sexual abuse continues. Schools know this. Why shouldn’t schools be legally responsible in damages to students for violations of their sex equality rights—that is, for sexual harassment that meets substantive legal standards, meaning any failure to produce a learning environment that is sex-equal, free of sex-based abuse and violation? Why isn’t the legal requirement, almost forty years after Alexander v. Yale was brought, that if sexual harassment is severe or pervasive or oppressive so as to make the learning environment unequal, schools are liable? No student should have to be raped once, far less more than once. Forty years of notice are enough.

In virtually every case discussed in this analysis, the substantive test for sexual harassment was met beyond cavil. The educational environment was thus not equal. But this is not the standard the courts apply, or have been directed to apply, to institutional accountability. One case held that offering a harassed student enrollment at an alternative school made her school not deliberately indifferent to her abuse.250 Why should she be the one to leave? One principal, informed that a student had been coerced into performing oral sex by male students off school grounds, had fifty conversations with law enforcement about an investigation and deferred to them, making the school not deliberately indifferent,251 despite law enforcement’s generally unreliable record on such issues.

The schools’ response need not even be reasonable; it just cannot be unreasonable.252 How is just not turning a blind eye and doing nothing the same as guaranteeing the equal benefit of an education on the basis of sex? As the dissenters in Gebser presciently foresaw, “few Title IX plaintiffs who have been victims of intentional discrimination will be able to recover damages under this exceedingly high standard.”253 Schools have not been liable to women students even when their response to what were ultimately nine reports of harassment by the same professor was “remarkably inept.”254 A school can be “far from thorough,”255 need not “use[] the best practices,”256 can respond with “[n]egligent or careless conduct”257 and not be deliberately indifferent.258 There almost seems to be a contest among some courts for how low the bar for institutional impunity can be set.

From the perspective of educational equality, the deliberate indifference standard creates perverse incentives. It encourages schools not to know and to avoid learning about sexual atrocities so as to avoid notice of them, so no response, however indifferent, can be deliberate. Contorted responses to reports result, sometimes supposedly in the interest of survivor confidentiality but actually hiding institutions behind victims, protecting schools from the kind of notice Gebser requires.259 The concept of deliberate indifference, which centers on conscious choice and is measured in unreasonableness of procedural steps rather than in substantive equality outcomes, produces an incentive for schools to go through the motions with an eye primarily to looking as if action is being taken, rather than to redressing the injury, stopping the abuse, or addressing the climate in the environment that produced and permitted it.

The fact that the sexual abuse that actually occurred is all but invisible in most of the decisions—more often than not its existence is uncontested—reminds one of nothing so much as wartime rape prosecutions, where the fact of the atrocities is virtually never contested either. The pushback from the defense side comes from higher authorities being prosecuted under culpability standards for people who did not themselves violate the women, but either encouraged the attacks or let them go unpunished, that is, men being prosecuted for rapes of other men.260 Nothing in existing law tells schools that the best way to avoid liability is to end the abuse, make sure it does not happen again, and repair the damage it did: deliver equality.

The Gebser Court may have thought that the liability standard it chose, given its use under related constitutional rubrics, was the best or most obvious available.261 The Court did not want to blindside public school districts with large damage awards.262 The intentionality of deliberate indifference as a test263has been underlined by its development on the constitutional side, subsequently referred to by cases under Title IX.264Substantive due process, which uses the deliberate indifference test, is not directed toward ending sex inequality. It imposes a moral standard of some sort—say, whether authorities are willfully uncaring enough to “shock[] the conscience”265—not an equality standard. To clarify the distinction by illustration, in one substantive due process case in which a boy was sexually molested by a public school teacher, the Eighth Circuit found that the principal’s actions did not rise to the level of deliberate indifference when the principal secretly asked the offending teacher to leave and provided him with a positive letter of recommendation.266 Such actions may not shock the court’s conscience but arguably discriminated against the victim as well as other young people down the road at the school to whom the offender was positively referred in this cover-up. Other than by showing that the violation was not remedied, intentional discrimination can be inordinately difficult to show, as litigation under other intent requirements in the inequality setting demonstrate.267 And no other sex equality statute or constitutional provisions contains Title IX’s explicit outcome-based language.

With little liability to fear and only conscience to govern, with low probability of loss of all federal funds or negative involvement of insurance or reinsurance companies,268 schools effectively have become largely unaccountable for sexual harassment once again, even in the wake of unprecedented federal attention. The federal government is far more predictable and tractable than victims armed with their own lawyers. Instead of being responsive to student survivors, schools are mainly responding to how they look in the media, mainstream and social, making the issue of sexual harassment one of branding and public relations, and of managing their relations with the federal government, which focuses on steps over results and systemic over individual discrimination. Schools respond to survivors through attorneys charged with containing rather than revealing information and protecting the institutional back. That sex equality in education is not being adequately provided as a result has been amply and vividly documented both by social science research and by student survivors connecting with each other, communicating through digital media, and complaining of sex inequality in their education to governmental bodies in unprecedented numbers.269

Some schools are no doubt sincere in their desire to address their rape cultures and equalize their educational environments. But since 1998, legally speaking, they do not have to. When equality of treatment depends on the good-hearted inclinations and aroused outrage of authorities, equality is not a right. Relying on the good will of nice men in power, and the notion that if they know about it, they will fix it, has not reliably worked for over three decades, nor did it work before sexual harassment was recognized as a legal claim for sex discrimination. For the most part, although there are exceptions, all a school has had to do about sexual harassment from the perspective of liability (that is, accountability to sexually violated students) has been something more than nothing. And that, for the most part, is all they have done. Amid shoddy investigations, deck-stacked hearings, absence of accommodations or communication, jerked-around deadlines, reliance on and repetition of rape myths and other victim blaming,270 shunning and shaming, bending over backwards for accused perpetrators is all but standard and next to nothing is being done about it.271 The absence of recourse to outside authority for victims may help explain the widespread, well-documented lack of responsive policies against sexual assault, inadequate sexual assault training for school authorities, dilatory responses even when policies call for them, and underreporting of campus crime statistics to federal education officials, all as found by the National Institute of Justice as of 2005,272 accompanied by the dramatic escalation in well-founded federal inquiries in the last few years.273 Compared with the liability standard under Title VII, which has also been subject to Supreme Court dilution,274 the sex equality of adult employees at work is better protected from sexual harassment than are the sex equality rights of children and young adults in school—which, it might be noted, they and their parents are paying for.

The deliberate indifference liability standard to date has obscured the actual referent of Title IX’s conferral of rights: the survivor. Treating survivors of sexual assault as if they are the problem, need only be waited out until they move on, and do not matter—effectively giving them the back of the hand—is epistemic, systemic, and institutionalized rather than usually consciously chosen. That schools can get away with it means that sex inequality is permitted. There is no need for anyone to form a conscious intent to discriminate to maintain a sexually hostile educational environment when sexual assault itself, with institutional responses to it that do not prioritize the equal benefit of an education, tend to be structurally, rather than deliberately, unequal. No one has to deliberate their indifference to produce unequal treatment. All administrators have to do is respond to existing incentives to continue business as usual, adding a soupçon of an investigation here or a dash of a hearing there to get OCR and ultimately the courts off their backs. The social norms of credibility, the social burdens of proof, are stacked against the survivor; so is the legal liability standard. In the meantime, social and legal norms and actors alike by reflex sympathetically and procedurally protect the accused’s present and future, which is allegedly ruined by a report.275 Should survivors become suicidal at the institutional jerk-around in the context of their PTSD, often not even their lives matter.276

V. due diligence

So what standard for institutional liability does Title IX’s equal outcome guarantee require in cases of the unequal injury of sexual harassment? On the assumption that victims have a human right to access an effective remedy,277 which deliberate indifference demonstrably fails to provide, “due diligence” as developed in international human rights law offers the appropriate, effective, and empowering standard that victims deserve. Due diligence requires that deprivations of equality rights, of which the state knew or should have known, be prevented, victims of equality violations be protected, investigations be effective and based on accurate empirical data, punishment be exacted where justified, remedies, compensation, and reparations be provided to victims and where appropriate to the groups of which they are members, and prevention include transformative change to ensure that such abuses do not happen again.278 Individual survivors to whom such relief has not been provided by their schools are entitled to such a robust tool in their hands to enforce their rights in court.

Due diligence was mentioned by Grotius and other early writers on international law279 and was used in early international arbitration cases.280 Its modern history in international human rights law springs from the foundational Velásquez Rodriguez case,281 in which a state was held responsible for human rights violations perpetrated in a program of torture and disappearance allegedly carried out by quasi-official actors or tolerated by the state. The due diligence standard has been widely accepted in many settings as the global standard for state accountability for violations of human rights.282 It has been applied in leading cases of violence against women, including cases involving widespread documented patterns and individual cases, that states failed to prevent or effectively investigate or redress,283 including against states for sexual violations that discriminate against women on the basis of sex under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).284 The developing legal area of domestic violence against women in international law illustrates the extension of liability by degrees of state responsibility for acts committed by increasingly-nonstate actors, the occurrence of which states were on notice collectively as well as individually, when state entities fail to prevent human rights violations and/or to respond to them effectively after the fact.285 Based on world practice and judicial opinion, failure to respond to violence against women with due diligence may be becoming a violation of customary international law.286 Due diligence requires states effectively implement human rights law, of which Title IX is one example, to prevent, protect, prosecute, and provide compensation for violence against women by intervening against sexual abuse at all levels—meaning effective investigation, responsive process, and compensation. Crucially, due diligence requires that known human rights violations, or those of which an entity should have been aware, actually be remedied and prevented from recurring.287

Due diligence as a standard for institutional liability for discrimination is vastly more appropriate than deliberate indifference for the very reason the Gebser Court thought deliberate indifference was appropriate: Title IX violations, which occur under the aegis of receipt of federal funds, become state acts. As power flows down, responsibility flows up. Impunity for human rights violations also renders states responsible for them. An excellent example close to home is Lenahan, in which the failure of U.S. police to act with due diligence in responding to multiple reports of domestic violence was found to violate the “obligation not to discriminate” on the basis of sex and ethnicity under the American Declaration.288 Since the connection with the government—under Title IX, the Spending Clause—is the basis for the implied right of action, the standard to which the state is held for breaches of the same human right, discrimination, should be the standard to which the school, acting under its aegis, is held.

Some of the few responsive judicial decisions under deliberate indifference converge at points with aspects of the due diligence standard.289 Considering a school’s persistent ineffectual responses to be a failure to act “reasonably in light of known circumstances”290 is not far from due diligence requirements at that juncture. However, if these standards were closer in practice, most of the cases discussed above would not be possible, and the incidence and prevalence of sexual harassment in schools would not be what it is today.291

Due diligence standards as developed in the international human rights setting are by no means foreign to U.S. jurisprudence or to Title IX. Strikingly, the administrative standards devised by OCR to enforce Title IX, which are not controlled by the legal standards set by courts,292 converge closely at several points with “due diligence.” OCR’s standards for compliance review, to which it holds educational institutions at least on paper, are far more stringent than those applied by courts. Although some of its standards also require notice, OCR calls for schools to prevent sexual harassment, protect its victims, actively investigate reports, ensure equality in proceedings, and take steps to effectively remedy the sexual harassment as well as prevent its reoccurrence.293 In its 2001 Guidance, OCR clarified that a recipient’s failure to respond promptly and effectively to end severe, persistent, or pervasive harassment, which it knew or should have known about, and to prevent its recurrence, could violate Title IX for purposes of administrative enforcement.294 Unlike often under the deliberate indifference judicial standard, OCR requires that, upon receiving actual or constructive notice of harassment, the school “should take immediate and appropriate steps to investigate or otherwise determine what occurred,”295 and that every investigation “must be prompt, thorough, and impartial.”296 It requires the school take “prompt and effective action calculated to end the harassment,” eliminate any hostile environment and its effects, and prevent the harassment from recurring.297However strong, these regulations require steps toward an outcome, not an outcome.

Aggressive administrative enforcement of Title IX in the sexual harassment setting by the Obama Administration’s Department of Education, responding to increased activism and organizing by student survivors,298 has challenged sexual harassment in schools on the ground. Together with issuing clarifying guidance,299 federal authorities have successfully resolved many complaints filed with OCR by aggrieved victims of sexual harassment against their schools.300 Some of this administrative action has addressed substantive questions, such as the definition of sexual harassment.301 The principal focus of the guidance, findings of violation, and mandated relief has been evidentiary and procedural, also crucial for sex equality purposes. These administrative developments have spurred some changes in policies and procedures on campuses around the country.302

By itself, this helpful activity has not proven to be enough. Administrative action as the primary route for enforcement is far from ideal for producing change. The tools realistically at hand for OCR to impose what amount to some due diligence requirements have predictably been insufficient—or perhaps it is a matter of adequate staff funding—to guarantee full implementation, despite energetic efforts of able administrators. The Department of Education has never applied its ultimate sanction, the nuclear option of cutting off federal funds to a school,303 and the schools know it, although they also know it is possible. (It is worth asking whether cutting off federal funds would deliver sex equality, hence is better as threat than reality, since among other consequences, a cutoff would eliminate federal scholarship funds to low-income students.) Nor is OCR typically sufficiently nimble to provide equal educational opportunities to individual survivors within the time frame needed, its principal focus being systemic.304 Gebser explicitly permitted administrative enforcement to proceed under standards that, if violated, would not result in money damages for survivors.305 Nor is violation of administrative standards legally actionable in courts. OCR virtually never addresses sanctions against perpetrators, and it is not empowered to require schools to compensate individual victims,306 although sometimes it negotiates compensation for educational costs in individual cases.307

Effectively leaving enforcement of Title IX in the hands of OCR, despite its concerted efforts, will never be enough. Apart from the currently deficient legal design—schools know survivors cannot, under the deliberate indifference standard, realistically expect lawyers to bring suit for them, and if they do, cannot expect to win most of the time—government cannot always be everywhere. Not until survivors have realistic access to remedies in their own hands will an equal education be within their grasp.

As a practical matter, Congress could accept the Gebser Court’s explicit invitation to “speak[] directly on the subject”308 and amend Title IX to provide a private right of action in United States district courts for equitable relief, compensatory and punitive damages, and reasonable attorneys’ fees for all failures to adhere to Title IX. This step would reopen the question of the institutional liability standard, on which Congress could opine or not.309 With liability no longer implied, Congress would also affirm its intent, as originally found by the Court in Franklin, that the private right of action under Title IX includes the availability to victims of money damage remedies for sexual harassment in education as a form of sex discrimination.310 Such an addition to Title IX’s enforcement tools would supplement the administrative threat of withholding federal funds and imposing fines.If the goal is that all educational institutions and programs receiving federal financial assistance prevent sexual harassment and all other forms of sexual violence in education, protect its targets and victims, promptly and effectively investigate all reports, punish perpetrators where and as warranted, and provide effective relief and remedies for all its harms, including transformative relief to prevent recurrence on pain of liability, due diligence is the obvious liability test.

Conclusion

The pattern repeatedly encountered by survivors of sexual violation in school is that educational institutions side with sexual abusers and the law sides with the institutions. This bias is not only a product of the cultural norms that value and believe men who sexually violate others and do not value and believe women or men who are sexually violated. The same skew is also built into the logic of the legal accountability doctrine of deliberate indifference. The consequence of male power siding with male power is that women and girls in particular, despite being admitted to and graduating from schools of quality, are deprived of equality in their access to the benefits of that education, the equal benefit of which they are the legally intended recipients. The same is true for all sexually violated students.

The greatest present cost, apart from the shattering results of the ongoing abuse itself, is the silence of those cases not brought for violations never reported or even spoken aloud. This cost begins with the victims, but it does not end there. As the Secretary General of the United Nations put the relation of impunity for sexual violence to gender inequality affecting women and girls as a whole:

Impunity for violence against women compounds the effects of such violence as a mechanism of male control over women. When the State fails to hold the perpetrators of violence accountable and society explicitly or tacitly condones such violence, impunity not only encourages further abuses, it also gives the message that male violence against women is acceptable or normal. The result of such impunity is not solely the denial of justice to the individual victims/survivors, but also the reinforcement of prevailing gender relations and replication of inequalities that affect other women and girls as well.311

This cannot be what Congress intended in providing federal funding for education free from sex discrimination.

Due diligence as interpreted in the international human rights canon places the responsibility for implementing equality where it belongs: on those who are in institutional control. Due diligence requires that schools promote sex equality by ending impunity for sexual harassment in their own educational environments. Schools are responsible for their communities, empowered with considerable autonomy over them, and accountable for inequality within them. Under this proactive liability concept, rooted in Title IX’s plain language,312 the institutional incentive to address rape cultures and redress sexual assault in schools would be restored and significantly strengthened, shifting power into the hands of the violated. Real and effective action against sexual harassment, including rape, would be realistically required as part of the funding contract between the government, acting for the people, and its educational institutions, placing the obligation to deliver a sex-equal education into the hands of those who have the capacity and the duty to provide it.