Academic journal article Northwestern University Law Review

The Empty Promise of Title IX: Why Girls Need Courts to Reconsider Liability Standards and Preemption in School Sexual Harassment Cases

Academic journal article Northwestern University Law Review

The Empty Promise of Title IX: Why Girls Need Courts to Reconsider Liability Standards and Preemption in School Sexual Harassment Cases

Article excerpt

INTRODUCTION

Kristen Canty was in the seventh grade when she was first subject to improper sexual contact by one of her teachers, a junior high and high school athletic coach.1 After she was first raped in 1995, Kristen subsequently endured two more years of sexual harassment, abuse, and assault, both on and off school property.2 Her trusted teacher, John Shockro, whom she had known since elementary school, repeatedly exposed her to this damaging sexual assault and harassment.3

Kristen Canty's experience is not an isolated incident. Sexual harassment and discrimination against students occurs at every level of school, from kindergarten4 through college.5 Several commentators have noted that research confirms that sexual harassment in education is a "disturbingly prevalent" trend.6 While it often begins at the elementary school level, sexual harassment escalates, in both frequency and type, as students progress through school.7 Girls and women are overwhelmingly the victims of this harassment.8

When Kristen Canty reported her rape, school officials did not call police or the Department of Social Services ("DSS").9 In fact, according to one of her attorneys, school officials '"shunned, ridiculed and embarrassed her,' hoping she'd drop her allegations against one of [the town's] most popular figures."10 School officials interrogated the young girl about the assault without calling her parents or inviting them to be present.11 This same attorney characterized the school's reaction to her accusations as "an ambush" and said that "[t]he things they did to try to discredit her are shameful."12 The school was unresponsive to Kristen's plight, argued her attorneys.13

As an explanation for its inaction in the face of Kristen's complaints, the school claimed that it did not initially believe Kristen.14 School officials' actions following her report, however, belie this claim. The school gave Shockro three written reprimands and forbade him to be in the same building as Canty.15 Even more startling is the fact that the school principal told Kristen's parents that he believed her allegations of rape and admitted that Shockro was a "sick man" who needed help.16 When Shockro violated the principal's order to stay away from Kristen, the school principal was concerned17 but still failed to report Shockro's actions to the police or to DSS, as required by state law.18 It was only after a second student who had also been subjected to similar treatment by Shockro came forward two years later in 1997 that the school took decisive action against Shockro, firing him and reporting him to the police.19 But during the intervening two years, Kristen Canty continued to go to a school where she continually had to face her known abuser.

Kristen and her family eventually brought this matter into federal court, suing the school district and various individual defendants, including Principal Gardner and John Shockro.20 Her suit cited claims under both Title IX of the Education Amendments of 197221 and 42 U.S.C. § 1983.22

Congress passed Title IX in 1972.23 It is the only federal statutory avenue through which to pursue claims of gender discrimination in education.24 It prohibits educational institutions that receive federal funding from practicing gender discrimination in their programs or activities.25 Because almost all schools receive at least some federal funds,26 there are few who are not affected by the mandates of Title IX.27 This widespread application of Title IX extends to over fifty million elementary and school students, almost fifteen million college and university students, about 15,000 school districts, and more than 3,600 colleges and universities.28 Even many private schools receive some federal funding and therefore fall under Title IX.29 Thus, nearly all educational institutions are bound by the dictates of Title IX.

For Kristen Canty, in the first of two proceedings at the district court level, the court granted summary judgment for the defendants on the § 1983 claims. …

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