Academic journal article Journal of Law and Education

Entity Liability for Teacher-on-Student Sexual Harassment: Could State Law Offer Greater Protection Than Federal Statutes?

Academic journal article Journal of Law and Education

Entity Liability for Teacher-on-Student Sexual Harassment: Could State Law Offer Greater Protection Than Federal Statutes?

Article excerpt

I. INTRODUCTION

Sexual harassment of students by teachers continues to be a major problem in the United States.1 Federal claims brought by victims of such abuse have been less successful since more stringent standards of proof have been required by the U. S. Supreme Court.2 Due to the stricter standards at the Federal level some victims of teacher-on-student sexual harassment may well be afforded greater protection by filing claims under applicable state law, depending upon the particular jurisdiction, rather than under, or in addition to, Federal statutes.3

II. OVERVIEW OF FEDERAL PROTECTION4

A. Title IX5

Title IX of the Education Amendments of 19726 states, in relevant part, "No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."7 Prior to 1998, some courts had taken a "plaintiff-friendly approach to institutional liability under Title IX" for the sexual harassment of students by one of their teacher-employees.8 However, the Supreme Court blocked that development when it raised the evidentiary bar for students who are victims of sexual harassment by teachers in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).

1. Standard of Proof After Gebser

In Gebser, a high school teacher initiated sexual contact with a ninthgrade female student.9 During this period, several parents complained to the school's principal about inappropriate sexual remarks the teacher had made during class, and the principal advised the teacher to be more careful about his comments to students.10 The relationship with the ninth-grade student was not discovered until police found the two having sexual intercourse; the teacher was subsequently fired and his teaching license revoked.11

The student and her mother filed suit against the school district for the teacher's abuse under Title IX, among other claims.12 The Supreme Court granted certiorari and held in a 5-4 decision that

[D]amages may not be recovered [from a school district for the sexual harassment of a student by one of its teachers] unless an official of the school district who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct.13

Under this new standard, the school district in Gebser could not be held liable for the teacher's sexual wrongdoing because "once the school knew of the teacher's harassment, the school fired him," thus avoiding the Court's requirement of deliberate indifference.14

2. Criticism of the Majority

Following the Supreme Court's decision in Gebser, many commentators have noted that protection under Title IX has been gutted by this stringent two-prong test.15 In addition, some of these commentators reflect the view of the dissent and severely criticize the Court for not following common-law agency principles in its decision.16

B. Summary

The Supreme Court's unfortunate decision in Gebser, requiring proof of actual notice as well as deliberate indifference, created new roadblocks for those filing suit against entities for teacher-on-student sexual harassment.17 In contrast to the views of some commentators, depending on jurisdiction and circumstances, state law could well provide greater protection for some plaintiffs.18

III. SCOPE OF STATE PROTECTION

A. Jurisdictional Considerations

The extent of entity liability arising from teacher-on-student sexual harassment differs considerably from state to state.19 Actions based on common law tort theories of vicarious liability or negligence in hiring and retention have had uneven results based on the facts of a given case and/or varying statutory definitions of sovereign immunity.20 Even within a state, a variation in facts can bring about alternative results. …

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