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Fighting Sexual Harassment in America's Schools
Kimberly M. Hult, Hutchinson Black and Cook, LLC

It had been a long week, so she decided that she would just spend Friday night in her apartment with several of her girlfriends, playing silly drinking games and talking about their vacation plans. Because they were not going to be driving or stopping by campus parties, she thought it would be safe to drink at her home with a few friends. When a group of star football players and recruits showed up at her apartment, hours after she and the other women started drinking, she didn’t understand why they would want to crash her “boring” little party. But even though she did not know them, the players knew a couple of her friends, so she let them in. Before long, her apartment was trashed and many of the players and recruits started to leave. Feeling tired and drunk, she retired to her room and, with all of her clothes still on, leaned back on a bed. She fell into a deep sleep, aided by the alcohol. She awoke, terrified to find herself surrounded by at least five unfamiliar players and recruits. They had already turned off the lights and quickly pulled off her clothing and began to take turns raping her.

This true account is just one of many recent and horrifying stories of sexual assault on America’s campuses. Although public awareness of sexual harassment on America’s college campuses is building, and many schools are offering better sexual harassment training to their students, sexual harassment continues to be part of the college experience for far too many young women. A study published in December 2005 by the American Association of University Women (Drawing the Line: Sexual Harassment on Campus), found that 89 percent of college students say that sexual harassment occurs among students at their school, nearly two-thirds of students report that they have been sexually harassed, and a similar number report that a friend or classmate has been sexually harassed. The AAUW report finds that, in all, about six million college students face sexual harassment at college.

Recent developments in federal civil rights law provide an important tool for fighting sexual harassment – including sexual assaults – by known harassers in America’s schools. Title IX, the statute most commonly associated with ensuring equal funding for boys’ and girls’ sports, has emerged as an important civil rights remedy available to victims of severe sexual harassment.

Title IX was enacted by Congress in 1972, and provides that individuals cannot “be excluded from participation in, be denied the benefits of, or be subjected to, discrimination” on the basis of sex from “any educational activity or program” that receives federal funds. 20 U.S.C. § 1681. In a series of decisions in the 1990s, the United States Supreme Court made clear that this statute extends to provide individual students with a right to sue schools for monetary damages for sexual harassment, regardless of whether the student is harassed by a teacher or supervisor or by a fellow student. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998); Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). At the same time, the Supreme Court imposed significant hurdles to proving such a claim: If a plaintiff seeks monetary damages, she must show that the school had (1) actual notice; (2) of severe and pervasive sexual harassment; (3) to which the school remained deliberately indifferent; and (4) that the harassment had the effect of denying a student access to education. Just last year, the Supreme Court further clarified that Title IX also permits a student to assert a claim for retaliation if a school responds to a claim of sexual harassment by taking some action against the reporting student. Jackson v. Birmingham Bd. Of Educ., 125 S. Ct. 1497 (2005).

In the wake of those decisions, a number of legal issues have quickly arisen: what if the harasser targets several different victims, or the harassment is by a group of harassers that may change over time? Is a single rape “enough” to constitute “severe and pervasive harassment”? What does it mean that a school must be “deliberately indifferent” to harassment? What if the harassment takes place off campus, say at a young woman’s off-campus apartment? Can a school, particularly a university or college, really be responsible for the conduct of students when they are off on their own? While the courts continue to tackle these and other important questions, several important trends have emerged.

First, nearly every federal and state court has held that it does not matter whether or not the harasser had targeted a particular victim, as long as the school had actual notice that this particular individual presented a similar threat to other students. Wills v. Brown Univ., 184 F.3d 20, 26-27 (1st Cir. 1999) (citing Gebser); Doe A. v. Green, 298 F. Supp. 2d 1025, 1033-34 (D. Nev. 2004); Johnson v. Galen Health Inst., 267 F. Supp. 2d 679, 688 (W.D. Ky. 2003); Doe v. School Admin. Dist. No. 19, 66 F. Supp. 2d 57, 63 (D. Me. 1999); Massey v. Akron City Bd. of Educ., 82 F. Supp. 2d 735, 745 (N.D. Ohio 2000). Similarly, a recent ruling in a Colorado federal court makes clear that it does not matter whether the group of harassers changes; instead, the focus must be on whether the school had notice of a substantial risk of harassment in one of its programs. Simpson v. University of Colorado, 372 F. Supp. 2d 1229 (D. Colo. 2005).

Second, many, although not all, courts have held that a single sexual assault must be, by definition, severe and pervasive harassment. Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000); Doe, 66 F Supp.2d at 62; Elgamil v. Syracuse Univ., 2000 WL 1264122 at * 6 (N.D.N.Y. Aug. 22, 2000). Other acts, taken by themselves, may also rise to this level.

While the courts continue to struggle with the “deliberate indifference” standard, if a school does nothing in the face of notice about a predator on campus is more than enough for liability under Title IX. Bryant v. Independent Sch. Dist. No. 138, 334 F.3d 928, 933 (10th Cir. 2003). Similarly, several courts have held that if there is evidence that the school has made efforts to conceal harassment that tends to show its indifference to the harassment. Murrell v. School District No. 1, Denver, Colorado, 186 F.3d 1238, 1247-48 (10th Cir. 1999); Ericson v. Syracuse Univ., 35 F. Supp. 2d 326, 328 (S.D.N.Y. 1999).

Finally, the courts generally agree that it does not matter whether the sexual harassment occurs off campus – as long as a plaintiff can show that the school had control over the harasser or the context in which the harassment occurs. Since schools have long exercised disciplinary authority over student for off-campus misconduct, many courts have held that they may also be responsible if a harasser under the school’s disciplinary authority harasses students at some other location – and even in another country, if students are participating in a study-abroad program. Crandell v. New York Coll. of Osteopathic Med., 87 F. Supp.2d 304, 316 n.130 (S.D.N.Y 2000); King v. Board of Control of Eastern Mich. Univ., 221 F. Supp.2d 783, 789 (E.D. Mich. 2002).

What can a school do to protect itself from liability under Title IX? The most important step that a school can take is to respond quickly to information about sexual harassment, even if that information is not in the form of a formal complaint. Once a school learns – through whatever means – that a particular employee or student is engaging in sexually hostile behavior, it must take steps to protect its other students. Given the high standard for liability – evidence of “deliberate indifference” – the steps may vary and no one has the right to demand that particular remedial action be taken. The steps must only be not “clearly unreasonable.” Beyond that, a school has considerable leeway to craft an appropriate remedy to address the harassment and prevent it from recurring.

Kimberly M. Hult is a partner at Hutchinson Black and Cook, LLC in Boulder, Colorado, and has extensive experience representing clients in Title IX litigation, as well as complex commercial, intellectual property and professional malpractice litigation in the federal and state courts. She received her law degree magna cum laude from Cornell Law School in 1993. Ms. Hult can be reached at (303) 442-6514 or hult@hbcboulder.com.

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