Signaling Sexual Harassment

Authors

Emily Suski

Abstract

Following the Supreme Court’s decision to eliminate the right to abortion in Dobbs v. Jackson Women’s Health Organization, Title IX stands as a potentially powerful statutory bulwark against further erosions of sex and gender equality rights. Title IX’s purpose is to protect against and eradicate sex discrimination of all forms, including sexual harassment, in education. Yet, it rarely fulfills this purpose. Although the Supreme Court has said that sexual harassment is a form of sex discrimination proscribed by Title IX, it has failed to define sexual harassment or provide more than the barest of guidance on how severe it must be to qualify for Title IX’s protection. The lower courts have consequently filled those gaps, and they have done so reductively. Their evaluations regularly exclude all but the most extreme forms of sexual harassment from Title IX’s protection. They thus leave much of the sexual harassment that students suffer in school unchecked by the law designed to expunge it.

Further, these reductive evaluations of students’ Title IX sexual harassment claims have three significant signaling effects. First, with these decisions, courts signal that much of the sexual harassment that occurs in school is acceptable, or the norm. Second, courts signal that schools can teach this sexual harassment norm through what sociologists call the hidden curriculum. Third, courts signal that this sexual harassment norm can pervade democratic and social structures. With these decisions, then, the lower courts do not just allow sexual harassment to occur unabated in school, but they also effectively reinforce it in schools and more broadly.

To reinvigorate Title IX’s purpose, this Article proposes a comprehensive definition of sexual harassment for courts to use in assessing Title IX sexual harassment claims. It also recommends a test for determining the severity of sexual harassment as well as a framework for applying that test that centers students’ experiences of sexual harassment. Together, these reforms would require courts to recognize more sexual harassment under Title IX and therefore restore its power to eliminate sexual harassment in schools.

Recommended Citation

Emily Suski, Signaling Sexual Harassment, 73 Emory L. J. 1391 (2024).
Available at: https://scholarlycommons.law.emory.edu/elj/vol73/iss6/2