Published Online: February 5, 2008
Published in Print: February 6, 2008, as Bill Would Change Liability Standard in Title IX Cases

Federal File

Bill Would Change Liability Standard in Title IX Cases

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A bill recently introduced in Congress seeks to modify the effects of two landmark U.S. Supreme Court decisions to give students greater legal protection from sexual harassment.

The rulings held that school districts may be held liable for the sexual harassment of students by school employees or by other students. But they set a high bar for allowing victims to recover damages under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.

In Gebser v. Lago Vista Independent School District, the court held in 1998 that a student may not recover damages unless a district official in a position to take corrective action was aware of a school employee’s harassing behavior and was deliberately indifferent to it.

In Davis v. Monroe County Board of Education, in 1999, the court held that Title IX covered student-on-student sexual harassment. But the justices said the harassment had to be “severe, pervasive, and objectively offensive” for victims to be able to recover damages.

On Jan. 24, Sen. Edward M. Kennedy, D-Mass., and Rep. John Lewis, D-Ga., introduced the proposed Civil Rights Act of 2008, which, among other provisions, seeks to undo the liability standard set in Gebser and Davis.

“Our legislation will strengthen existing protections in cases where the courts have let us down by narrowing individuals’ right to demand accountability for discrimination,” Sen. Kennedy said on the Senate floor.


Fatima Goss Graves, a senior counsel of the National Women’s Law Center, says in a paper released last week that the Gebser-Davis standard “has erected a series of hurdles that have grossly undermined Title IX’s protections.”

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In the paper for the American Constitution Society, Ms. Graves backs the proposed civil rights bill, saying it give students the same protection from harassment that employees receive under Title VII of the Civil Rights Act of 1964.

Naomi E. Gittins, the deputy general counsel of the National School Boards Association, said the bill was worrisome because it would appear to impose a standard of strict liability on districts for harassment that officials didn’t even know about.

“It would definitely make it easier for plaintiffs to win cases against school districts,” said Ms. Gittins. The NSBA has not yet taken a formal stand on the bill.

The bill has been referred to committees in both the Senate and the House.

Vol. 27, Issue 22, Page 21

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