Mr
...recipients of federal funding failed to stop a student from subjecting another to sever and pervasive sexual harassment where the recipient is deliberately indifferent to the known acts of sexual harassment and the harassing student is under the school's disciplinary authority.
"NO" POSITION THESIS
Schools cannot be held liable for student-on-student harassment because to do so would weaken the balance in federal power and numerous suits against local school districts would ensue which, in cost and number, will impose serious financial burdens on the schools. Also, schools cannot be liable for student-on-student sexual harassment because the harassment itself is not a possible Title IX cause of action due to the lack of clear and unambiguous notice.
BRIEFLY STATE AS MANY FALLACIES ON THE "YES" SIDE
1. The over-confident belief that schools are capable of exercising significant control over student discipline particularly in classroom. Some schools like universities and colleges may lack direct control over students and over the context in which the harassment occurs.
2. The underestimated difficulty associated with the job of distinguishing a childish demeanor in a single incident from the behavior that would ordinarily have to have a systemic effect on the victim's access to education that Title IX is designed to protect.
3. The conceptual distinctions between actionable and un-actionable harassment, definitional guidelines to identify sexual harassment (e.g., the harassment must be sever, pervasive, and objectively offensive) are very amorphous and abstract.
4. Belief that the language of Title IX is sufficiently clear to provide the requisite notice to the states and their school districts, so they could make an informed decision as to whether to take the federal money and assume the liability that comes with it.
5. Assumption that the...
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