Abstract
Excerpted From: Emily Suski, The Two Title IXs, 101 North Carolina Law Review 403 (January, 2023) (477 Footnotes) (Full Document)
Students in kindergarten through twelfth grade (“K-12”) public schools suffer more sexual harassment and endure more harms from it than students in higher education. Nearly twice as many students in grades seven through twelve experience sexual assault as all students in higher education. The majority of these younger survivors of sexual harassment is also disproportionately students of color. Title IX, the law that bans sex discrimination in public education, should protect these younger survivors from sexual harassment, but it does not. More precisely, it does not protect them to the same extent that it protects older, particularly older white, students in higher education.
Title IX's purpose is to protect all individuals from sex discrimination in public education without qualification. Over thirty years ago, the Supreme Court recognized that Title IX's prohibition on sex discrimination includes sexual harassment. At the same time, the Court established the standard for determining when schools have violated Title IX's proscription on sexual harassment. The Court held that schools are liable for sexual harassment when they know about such harassment and respond with deliberate indifference.
Although the Supreme Court established this one deliberate indifference standard for evaluating all Title IX sexual harassment claims, the lower federal courts' assessments of that standard offer students varying degrees of protection. The degree of protection students enjoy depends on whether the students are in the K-12 public schools or higher education. Counterintuitively, given younger students' greater vulnerability to sexual harassment and its harms, the lower federal courts' evaluations of the deliberate indifference standard provide students in higher education more protection from sexual harassment than students in K-12 public schools.
This Article argues that the courts have created two levels of protection from sexual harassment under Title IX in ways not sanctioned by either Title IX itself or Supreme Court doctrine. Further, this Article demonstrates how this disparity implicates race. Because the colleges and universities that are most likely to enforce Title IX overwhelmingly enroll white students, the relatively enhanced Title IX safeguards afforded to higher education students primarily apply to white higher education students. Meanwhile, the K-12 public school population is increasingly and predominantly comprised of students of color in many states and regions of the country. The courts thus provide fewer protections from sexual harassment for the students in schools that enroll more--often, a majority of--students of color.
In making these arguments, this Article is the first to both identify the differences in courts' treatment of students' Title IX claims based on the educational level of the student and to highlight the problem as one that concerns race. Other scholars have compellingly critiqued Title IX's deliberate indifference standard generally as too vacuous to provide adequate protection from sex discrimination. They have also explored the racial ramifications of Title IX's rules regarding school athletics programs and Title IX's evidentiary requirements in the higher education context. However, the academic literature has yet to consider the distinct treatment of K-12 public school students' Title IX sexual harassment claims as compared to higher education students' claims, how that distinct treatment makes the standard uniquely problematic for K-12 students, or the related racial implications.
The lower federal courts distinguish their treatment of K-12 and higher education students' sexual harassment claims and thus provide higher education students relatively enhanced protections from such harassment in two ways. First, some courts articulate a more rigorous (and therefore more protective) version of the deliberate indifference standard in higher education students' cases than in cases brought by K-12 public school students.
Second, some courts articulate the deliberate indifference standard uniformly across higher education and K-12 students' Title IX claims but apply it more rigorously in higher education students' claims. In assessing a college or university's response to sexual harassment for deliberate indifference, these courts inquire into what more a college or university could have done to address that sexual harassment. These same courts refuse, however, to make that inquiry in K-12 students' cases. Instead, these courts are willing to find that any response by the K-12 schools other than none at all satisfies the deliberate indifference standard.
In addition, a further disparity affects the protections afforded to students in higher education as compared to those in the K-12 public schools. Other laws, principally the Clery Act, provide students in higher education procedural and substantive protections from sexual harassment that are not available to K-12 public school students. Students in higher education, therefore, have a higher baseline level of protection from sexual harassment than do K-12 public school students. But even when courts articulate and apply the deliberate indifference standard uniformly, students in higher education still regularly receive more protection from sexual harassment than do K-12 public school students.
Title IX, a law that mandates equality, thus operates unequally. Interrogating the lower federal courts' assessments of Title IX in higher education and K-12 public school students' sexual harassment claims, this Article also demonstrates how the court-developed inequalities in Title IX protections extend to race. By establishing one set of protections from sexual harassment in higher education students' cases and another in K-12 public school students' cases, the courts afford more overall protection from sexual harassment to older, white students and less to younger Black and Latinx students. The courts produce this racial inequality in two ways. First, the courts generate institutional-level race disparities in Title IX protections. By requiring more under Title IX of colleges and universities, the courts demand that the schools that primarily enroll white students provide more protections from sexual harassment than the K-12 public schools that enroll higher proportions, and often a majority, of students of color.
Second, the courts produce individual-level race disparities in Title IX protections. The lower federal courts' assessments of the deliberate indifference standard provide less protection to the individual students who are also the most likely to suffer more sexual harassment: school-aged Black and Latina girls. Empirical research shows that Black and Latina girls under the age of eighteen are more susceptible to suffering more types of sexual harassment than are older students and white students of any age. By providing K-12 public school students less protection from sexual harassment under Title IX, the courts provide less protection to these individual Black and Latina students who are more vulnerable to suffering it. The courts thus marginalize, if not erase, these girls' experiences of sexual harassment. To make these disparities worse, both the schools and the students who attend them are disproportionately low-income. They are therefore disproportionately ill-equipped to address the effects of sexual harassment.
One might be tempted to rationalize courts' differential treatment of K-12 and higher education students. Arguably, K-12 students benefit from the protections of their parents, whereas at least some higher education students are essentially adolescents trying to navigate the world independently. Yet, that argument presupposes a capacity on the part of parents to protect students in the K-12 public schools that parents simply lack. For instance, parents have little access to their children during school and so can do little to protect them in those settings. The divergent treatment of the rights of K-12 and higher education students is particularly suspect in light of the strong correlation of these two groups with race. Thus, courts are not only offering older students more protection than younger ones, but they are also protecting white students more vigorously than students of color.
The lower federal courts have, then, created layers of disparities with their treatment of students' sexual harassment claims. Despite Title IX's broadly protective purpose, under courts' assessments, younger students, particularly younger students of color, who are disproportionately low-income, have less refuge in Title IX than older students and white students. The students with the greatest need for Title IX's protections, therefore, are often the least likely to receive the full force of those protections.
To remedy the disparities in courts' assessment of students' Title IX claims, this Article recommends a threefold approach. First, it proposes changes to the articulation and application of the deliberate indifference standard. Currently, half of the federal circuits either articulate or apply the deliberate indifference standard more rigorously in higher education students' Title IX claims than in K-12 public school students' claims. Courts should deploy that more robust articulation of the standard, which requires schools to protect against further sexual harassment, in all students' Title IX sexual harassment claims no matter their educational level. Additionally, in applying that more protective standard, courts should uniformly ask what more schools could have done to protect students from sexual harassment in all students' Title IX claims, not just in some higher education students' claims.
Second, this Article offers a two-part framework for evaluating that potentially powerful “what more” question. This question asks courts to examine what more a school could have done to prevent sexual harassment and what more it could have done to address the harassment that did occur. Although this framework can and should operate in both the higher education context as well as in the K-12 public schools, the focus here is on the framework's operation in the K-12 public schools. This Article concentrates on the K-12 public school students' sexual harassment because courts have long failed to meaningfully consider K-12 public schools' responses to student sexual harassment under Title IX. It therefore calls for particular scrutiny of K-12 public schools' responses to perpetrators of sexual harassment. It takes this approach because addressing the causes of sexual harassment--specifically, the perpetrators' behavior--offers the best means of preventing further harassment. In doing so, this framework explicitly abandons the long-held assumption among courts and schools that student discipline is the primary, or only, response to student perpetrators of sexual harassment. Instead, it insists that schools use differentiated, trauma-informed responses with survivors of sexual harassment as well as perpetrators of peer sexual harassment. In addition, by evaluating what more schools could have done to address student sexual harassment, this framework demands an assessment of the extent to which all schools have reckoned with and addressed the effects of race in their responses to sexual harassment.
Third, this Article recommends structural reforms. Recognizing that complying with the requirements of a differentiated, trauma-informed assessment of deliberate indifference could particularly burden low-income K-12 schools, it identifies ways that an overlooked part of another federal education statute, the Every Student Succeeds Act (“ESSA”), can assist. It proposes amendments to Part IV of the ESSA, which currently provides federal funds to schools to implement programs supporting the safety and health of students. This proposal would provide those Title VI funds to low-income school districts specifically to prevent sexual harassment and to ameliorate its harms. Because the ESSA just expired, it is ripe for these revisions. In addition, to resolve substantive disparities created by a law that only provides protections from sexual harassment to students in higher education, this Article also proposes changes to the Clery Act that would enable it to more capably cover different forms of sexual harassment and better apply to K-12 public schools.
This Article proceeds in three parts. Part I describes how sexual harassment is both more prevalent and its harms often more pronounced for students in the K-12 public schools than students in higher education. It then demonstrates how the lower federal courts nevertheless offer higher education students more protection from sexual harassment under Title IX than they do for K-12 public school students. It further explains how these distinctions in the treatment of students' claims cannot be justified based on differences in the higher education and the K-12 public school student populations. Part II contends that this distinction in treatment in students' Title IX cases concerns more than simply age or school level. It represents a distinction in treatment by race. When the lower federal courts afford more Title IX protections to higher education students, they effectively require that the schools that enroll predominantly white students provide more protections under Title IX than the K-12 public schools that tend to enroll more students of color. Further, both the schools that these Black and Latinx students attend and these students themselves are disproportionately low-income. This low-income status only exacerbates these race-based disparities. Part III offers ways to resolve this multilayered disparate treatment of students' Title IX claims. It proposes modifications to courts' evaluations of individual Title IX sexual harassment claims that would require K-12 public schools to offer students more protection from sexual harassment and would further require all schools to consider race in their responses to sexual harassment. It also suggests amendments to the ESSA, as well as the Clery Act, to help effect these changes, particularly in low-income K-12 public schools. Such changes will not only work to correct Title IX's race problem but will also ensure that Title IX operates to protect students equally in purpose as well as effect.
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Title IX mandates equality but, under lower federal courts' assessments of it, generates inequality. The Supreme Court established deliberate indifference as the one standard for evaluating all Title IX sexual harassment claims. Yet, the lower federal courts' evaluations of students' Title IX sexual harassment claims unjustifiably provide more protection from sexual harassment under that standard to higher education students than to K-12 public school students. The courts have thus effectively created two Title IXs.
Further, these court-developed disparities in Title IX protections extend to race. The courts' assessments afford more protections from sexual harassment in the higher education institutions that overwhelmingly enroll white students and fewer in the K-12 public schools that increasingly, sometimes predominantly, enroll students of color. The courts affect these disparities even though younger Black and Latina girls suffer more sexual harassment than white girls or older students of any race. The courts' evaluations of Title IX thus provide the least protection from sexual harassment to the Black and Latinx students who most need it.
To remedy these disparities, this Article proposes changes to the evaluation of individual student Title IX claims. It also calls for structural changes in the form of amendments to both the Every Student Succeeds Act and the Clery Act. These reforms will help ensure that all public schools better prevent and address sexual harassment and better achieve Title IX's purpose of eliminating inequality and protecting students from sexual harassment.
Emily Suski. Associate Professor, University of South Carolina School of Law.
