In their hands: restoring institutional liability for sexual harassment in education.

AuthorMacKinnon, Catharine A.
PositionIntroduction through II. Legal Background, p. 2038-2067 - A Conversation on Title IX

FEATURE CONTENTS INTRODUCTION I. SEXUAL HARASSMENT IN EDUCATION AS SEX INEQUALITY II. LEGAL BACKGROUND III. DELIBERATE INDIFFERENCE IN PRACTICE A. What Did They Know? B. What Did They Do? IV. EQUALITY CRITIQUE V. DUE DILIGENCE CONCLUSION INTRODUCTION

"The rape was nothing compared to the way my school has treated me."

--Andrea Pino (1)

Accountability to survivors by educational institutions is crucial to the delivery of Title IX's (2) promise of equal access to the benefits of an education without discrimination on the basis of sex, a promise vitiated by sexual harassment with impunity. Since 1998, the legal standard for institutional liability has been "deliberate indifference" to known discrimination. (3) Inequality is produced by many practices other than conscious disregard of known discrimination. (4) The deliberate indifference standard does not implement Title IX's distinctive statutory outcome-defined mandate of providing equal access to the benefits of an education. None of its liability elements necessarily promote equality, nor are they measured against an equality standard. Deliberate indifference as used under Title IX applies after assaults are reported with no attention to the unequal context, hierarchical relations, or documented climate of abuse that produces them. It looks at procedural steps taken by an educational institution but not at whether the steps produce a sex-equal education for the survivor or the group of which the survivor is a member. No changes that would preclude repetition, so as to transform campuses into sex-equal educational environments going forward, are incentivized or mandated.

Over the years of its application, the deliberate indifference standard has repeatedly and disproportionately (5) been deployed against survivors' cases, including when administrative handling of their situations is concededly callous, incompetent, unresponsive, inept, and inapt. (6) Under deliberate indifference, overall data on the occurrence of sexual abuse in schools has not moved an inch. (7) The standard permits a wide margin of tolerance for sexual abuse, appearing predicated on a belief in its inevitability, especially in the helplessness of officials and authorities to prevent or eliminate it among young people. Under the aegis of the deliberate indifference standard, women students in particular--disproportionately subjected to this form of gender-based aggression along with some students of all sexes and sexual orientations--have been sexually violated in their schooling from elementary grades through graduate school. The abuse has left them damaged academically, emotionally, and developmentally without mitigation or relief, let alone change, for decades. (8)

The "due diligence" standard as applied in international human rights law, including in international law against violence against women, provides a promising doctrine for institutional liability for sexual harassment in schools. Due diligence, adopted as a liability standard, would hold schools accountable to survivors for failure to prevent, adequately investigate, effectively respond to, and transformatively remediate sexual violation on campuses, so that sex equality in education is delivered in reality. Its contents would not be foreign to schools, courts, and agencies that have struggled creatively within the straitjacket of existing doctrine to produce such outcomes against the strictures of the current standard. Due diligence would provide what Title IX should be: a tool students could use in their own private actions in courts with their own lawyers to back up administrative enforcement efforts. Crucially, holding schools to a due diligence rule would provide the incentive for change that is lacking under the deliberate indifference doctrine. The goal would be ensuring that sexual abuse is no longer endemic to many schools' cultures, so that all students receive the safe and equal benefit of an education without discrimination on the basis of sex.

  1. SEXUAL HARASSMENT IN EDUCATION AS SEX INEQUALITY

    Sexual harassment in education, which includes rape and other sexual assault, is a recognized form of gender-based violence long documented to be widespread and prevalent in the United States. (9) As the accounts and data below demonstrate, sexual harassment is gender-based because it "is directed against a woman because she is a woman or ... affects women disproportionately." (10) The same principle applies to anyone harassed because of their sex or gender, including sexuality. Sexual harassment exemplifies the international understanding that violence against women results from "historically unequal power relations between women and men, which have led to domination over and discrimination against women by men and to the prevention of women's full advancement." (11)

    Acts of sexual harassment at school are largely similar to those at work and elsewhere, although their harmful effects can be distinctive to the educational setting and the growing mind. The behaviors commonly include sexual epithets, name-calling, importuning, accosting, pornography, molestation and other forms of unwanted sexual contact, and rape. (12) Case law and empirical studies divide perpetrators along the lines of school hierarchies. Some of the unwanted sex acts are committed by other students, some by teachers, coaches, and other superiors. (13) Victims are disproportionately women but also include some men; a substantial number of affected students identify as gay, bisexual, transgender, and queer. (14) A report commissioned by the National Institute of Justice found that nineteen percent of women and 2.5% of men reported experiencing attempted or completed rape since starting college. (15) These numbers, while substantial, are likely to be undercounts, given known factors that depress reporting. Also, they document rape and attempted rape only, not other forms of sexual abuse, and count people raped, not rapes.

    The American Association of Universities (AAU) 2015 survey of twenty-seven campuses similarly found that the incidence of sexual assault and sexual misconduct due to physical force, threats of physical force, or incapacitation among women undergraduate respondents was 23.1%, including 10.8% by penetration (16) By the time they were seniors, 26.1% of women and 29.5% of students who identify as trans, genderqueer, or identification not mentioned reported nonconsensual sexual contact through completed penetration or sexual touching by physical force or incapacitation. (17) Since a version of the discredited labeling methodology was used, (18) these numbers are most likely low. Sexual harassment in verbal or visual forms (other than quid pro quo) was reported by 61.9% of undergraduate women and 44.1% of graduate and professional women. (19) These data also combine faculty and student perpetrators, malting them difficult to interpret. Very little of the abuse was reported to school officials, typically because the victim thought the incident was not serious enough, even when it included forced penetration. (20) Nationwide, most educational sexual harassment is by other students; most, but not all, of such peer sexual harassment is committed by boys against girls. Perpetrators of rape of women and girls, so far as is known, are almost always men or boys. (21)

    Sexual harassment in education is neither a new phenomenon nor...

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