A Modified Approach to Claims of Sexual Harassment Under Title IX: Finding Protection Against Peer Sexual Harassment

Sexual harassment is a complex and multifaceted form of gender discrimination that plagues our educational system. In June of 1993, the American Association of University Women (AAUW) published the first major study on sexual harassment in schools, including peer sexual harassment. In conducting the study, the AAUW distributed 1,632 field surveys, within seventy-nine schools nationwide, to students in grades eight through eleven. The study revealed that eighty-one percent, or approximately four out of five students, experienced sexual harassment at their schools. In addition, according to the survey's results, the pervasiveness of peer sexual harassment is not distinguishable by gender; male students experienced harassing behavior almost as often as female students. The AAUW study showed that among the number of students who were victims of peer sexual harassment, eighty-five percent were female and seventy-six percent were male. Despite these numbers, it has been shown that sexual harassment has a far more disparate impact on women. Female students suffer greater physical manifestations and disruptive effects from sexual harassment than do male students. For example, the peer sexual harassment about which females complain is consistent with the definition of sexual harassment and is primarily initiated by male students. On the other hand, the peer sexual harassment of which males tend to complain is better described as harassment typically associated with early adolescent behavior and is initiated by both males and females. Furthermore, unlike a male student, a female student's learning environment is adversely affected by peer sexual harassment. The prevalence of sexual harassment, and its particular effect on women, is supported by an additional study that surveyed over 4,200 females ranging from age nine to nineteen. This study found that a majority of the women surveyed had experienced some form of sexual harassment. It is also important to note that sexual harassment can lead to behavioral changes in students such as cutting classes, not participating in class discussions, and difficulty concentrating. Regardless of gender, sexual harassment is a growing problem among all secondary school students. Title IX of the Education Amendments of 1972 prohibits this form of discrimination by conditioning an institution's federal funding on its prevention of sexual harassment. However, recent United States Supreme Court decisions have severely limited Title IX's effectiveness. Therefore, it is critical to examine the application of Title IX in preventing sexual harassment in schools.This Comment argues for institutional liability under Title IX for a failure to prevent peer sexual harassment and presents a modified test for claims of sexual harassment under Title IX that will secure the balance between safeguarding school funding and protecting students. Part I examines the definition of sexual harassment and introduces the Policy Guidance issued by the Office of Civil Rights of the United States Department of Education. Part II presents an overview of sexual harassment in the workplace and of the judicial interpretations of Title VII that form the basis for Title IX sexual harassment claims in schools. This overview also distinguishes Title VII principles from Title VII liability standards. Part III analyzes the legislative and judicial interpretations of sexual harassment claims under Title IX. Part IV explains the divergent decisions of the circuit courts on the issue of peer sexual harassment under Title IX. Part V analyzes the Supreme Court's recent decision on sexual harassment in schools, Gebser v. Lago Vista Independent School District. Part VI presents the debate over the importation of Title VII judicial interpretation into Title IX analysis. Part VII discusses claims of sexual harassment in schools after Gebser. This discussion insists that this debate should shift towards salvaging the use of Title VII principles, rather than arguing for the adoption of Title VII liability standards. Furthermore, this discussion argues for school liability under Title IX for a failure to prevent peer sexual harassment. Finally, this argument proposes a modified Title IX school liability test for sexual harassment that includes claims for peer sexual harassment.