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Emory Law Journal

Emily Harvey

Abstract

Title IX of the Education Amendments of 1972 promised dramatic measures to address sex-based discrimination in education. In the context of civil suits against schools involving peer sexual harassment, these measures have yet to live up to their promise. Under the existing standard, student victims of peer sexual harassment must demonstrate that their educational institutions responded to their reports of harassment with “deliberate indifference.” This standard favors institutions over students as it imposes liability only in the most egregious cases. A deepening conflict between the circuit courts regarding what deliberate indifference actually requires compounds concerns over the standard’s ineffectiveness. Courts like the Sixth Circuit, who adopt a narrow interpretation of deliberate indifference, require that students show they were subjected to subsequent actionable harassment, a rule that further harms students. In contrast, courts like the Tenth Circuit utilize a broader interpretation and find that a demonstration of vulnerability to further harassment is sufficient to establish deliberate indifference.

After reviewing the policy motivations behind Title IX and tracing the development of the deliberate indifference standard to its recent split, this Comment argues for the codification of the Tenth Circuit’s standard, which permits plaintiffs to show deliberate indifference through either further actionable harassment or vulnerability to further harassment. The amendment should also evaluate institutional responses under a standard of unreasonableness rather than clear unreasonableness. This approach would solidify Title IX’s application to peer sexual harassment, encourage proactive and meaningful institutional responses, and allow plaintiffs a greater chance of obtaining relief.

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