Hastings Women’s Law Journal


Martha McCarthy


This article address legal protections for public school students who are the victims of sexual harassment inflicted by school employees or their classmates. Constitutional and statutory remedies are explored, with particular attention given to the liability of school districts under Title IX of the Education Amendments of 1972 that bars gender discrimination in federal assisted educational programs or activities. The article discusses in some detail the Title IX standards for students to be awarded damages from school districts for sexual harassment that the Supreme Court announced in Franklin v. Gwinnett Public Schools, Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education. Professor McCarthy argues that the Supreme Court's interpretation of Title IX (requiring school authorities to have actual knowledge of the harassment and reflect deliberate indifference to the victim) is too stringent and should be replaced by a constructive notice requirement. Under a constructive notice standard, school districts would not be responsible for acts of third parties, but they would liable if school authorities should have known about the sexual harassment and failed to respond in a reasonable manner. The article makes some comparisons between the high threshold student harassment victims must satisfy to secure damages and the more lenient standard employee victims must meet to secure damages from their employers under Title VII of the Civil Rights Act of 1964.