To be entitled to any remedy under Title IX, students bringing private causes of action must show that their schools acted with actual knowledge and deliberate indifference. That liability standard is applied to both teacher-on-student and peer-on-peer harassment claims, without regard for an educational institution's relative control over the conduct of its employees versus its students. Schools should be held to a stricter standard in teacher-on-student cases than in peer-on-peer cases for numerous reasons of both law and policy. Considering that Title VII standards of liability do turn on relative control, a quirky imbalance results whereby a school is more likely to face liability when an employee in a supervisory capacity such as a principal harasses a teacher than when the same principal harasses a student. Eight of the nine justices involved in fixing Title IX liability standards in the 1990s agreed that a stricter standard should be applied in teacher-on-student cases than in peer-on-peer cases. Yet due to one shifting swing vote in two separate 5-4 decisions, the Court ultimately established the same standard in both. Over the last five years, Title X complains have grown dramatically in number, and both the executive and legislative branches are presently prioritizing the highly publicized issue of sexual assault on college campuses. Together, the current political climate and the parallels between Title VII and IX jurisprudential logic compel a reexamination of the defendant-friendly liability standard applied to teacher-on-student Title IX claims.
Mayer, Kathleen Mary E.
"Schools Are Employers Too: Rethinking the Institutional Liability Standard in Title IX Teacher-on-Student Sexual Harassment Suits,"
Georgia Law Review: Vol. 50:
3, Article 7.
Available at: https://digitalcommons.law.uga.edu/glr/vol50/iss3/7