Title IX Claims for Student-on-student Sexual Harrassment Essay

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Since the Davis ruling in 1999, the federal circuit courts have reviewed multiple peer sexual harassment cases. While not exactly the amount of litigation the dissent in Davis warned, there are enough cases to determine that the federal circuit courts of appeal are not entirely comfortable with the Davis standard. Although the federal circuit courts understand the general test set forth in Davis, they are struggling to define the vague terms within the Davis test. Accordingly, the courts have narrowly interpreted the Davis standard, aware of the unanswered questions. This conservative approach has resulted in very few winning student Title IX claims for student-on-student sexual harassment.
The federal circuit courts, while understanding the general Davis standard, still vary in their presentation of the essential elements of Davis liability. While some circuits focus primarily on the specifically numbered Davis elements--that Title IX liability requires that 1) the sexual harassment be so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; 2) the funding recipient had actual knowledge of the sexual harassment; and 3) the funding recipient was deliberately indifferent to the harassment n125--other circuits also include an element that the school district must have the power to exercise substantial control over both the harasser and the context in which the known harassment occurs. n126
However, how the federal circuits have defined each of these elements varies widely, with several circuits commenting on the lack of guidance in O'Connor's Davis opinion. n127 Consequently, the courts have been left to search in the...

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...rvised. n197 Although the victim's mother was assured care would be taken, "no steps were actually taken to minimize or stop the harassment. The specific request that Renee not be alone in the presence of Boy A was ignored. Arguably, these actions amounted to deliberate indifference to the concerns about harassment brought to Renee's teachers by her mother." n198
The two-step process used in Murrell and Vance is superior for defining the Davis deliberate indifference standard. Courts must ask whether any response was made following the initial complaint of sexual harassment, and whether that response was effective in deterring continued sexual harassment. Otherwise, useless remedial efforts, or efforts that come too late to protect a student from seriously debilitating acts of sexual harassment, become a loophole through which schools may escape Title IX liability.

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