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77 Tul. L. Rev. 387 (2002-2003)
Assessing Institutional Responsibility for Sexual Harassment in Education

handle is hein.journals/tulr77 and id is 403 raw text is: Assessing Institutional Responsibility for
Sexual Harassment in Education
Julie Davies*
This Article examines the viability ofpivate enforcement of Title IX, which prohibits
&scriination on the basis of sex by educational entities meceiving federal fundmig, in sexual
hatrsment cases. Several years ago, the United States Supreme Court announced a standard
heightening ptection of entities in cases that seek to inpose liability for violations of Title ly
There was speculation that private enforcement of the statute would be gatly reduced The
Article examies sexual harassment cases brought under Title IX after adoption of the new
standard as a means of understanding whether the prospects ofpivate actions are as &smal as
they may seem.
The Article traces the development of entity liability doctrne, companag treatment of
employers under Title VIT and educational entities under Title IX Although the Article does not
advocate use of the wrkplace standard i education, it demonstrates the commonality of the
Supreme Court concerns about liability for sexual harassment under both statutes and argues
these fundamental policy concerns should be used to guide the lower courts as they grdpple with
the issues that emerge under the Title IX standard Judicial opinions, mostly in the context of
pretial motions, give an idication of the depth and complexity of the pertinent questions.
Some courts interpret the standard in a manner that virtually forcloses institutional
responsibility while others manifest a broader view The numbers of dismissals, particularly in
peer harassment cases, give an indication ofhow challengig litigation in this area has become
The Article argues that the underlying policy warrants a broad iteipetation of the new
standard TheArticle also suggests that despite other factors that influence fundihg rcipients to
prevent sexual harassment, private enforcement remahis a powerful incentive forprevention. A
cramped interpretation of the standard for entity liability may negatively inpact not only those
who seek to litigate individualgievances, but the general studentpopulation as well
I.    INTRODUCTION              ...............................        ...... 388
II.   THE SUPREME COURT DECISIONS AND THEIR
IMPLICATIONS FOR ENTITY LIABILITY                       ............ ........ 397
A.    A BriefDesenotion of the Lawk Development............... 397
B.    The Title VII Standard......................                     398
C     The Title IX Standard.        ....................... 401
III. THE IMPORTANCE OF PRIVATE ENFORCEMENT OF TITLE IX
AND IMPLICATIONS OF THE COURT'S DECISIONS ......               ...... 408
A.    Does Pivate Enforcement StilMatter?. ......                ....... 408
*     Professor of Law, University of the Pacific, McGeorge School of Law. I wish to
acknowledge the careful research assistance of Galen Shimoda, Alexandra McCleod, and
Elizabeth Barravecchia. I have benefited from the comments of Ruth Jones, Larry Levine,
and Brian Landsberg, as well as other faculty colleagues, who were kind enough to attend a
presentation on this topic.
387

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