In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education

By MacKinnon, Catharine A. | The Yale Law Journal, May 2016 | Go to article overview

In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education


MacKinnon, Catharine A., The Yale Law Journal


FEATURE CONTENTS  INTRODUCTION    I. SEXUAL HARASSMENT IN EDUCATION AS SEX INEQUALITY  II. LEGAL BACKGROUND III. DELIBERATE INDIFFERENCE IN PRACTICE      A. What Did They Know?      B. What Did They Do?  IV. EQUALITY CRITIQUE   V. DUE DILIGENCE CONCLUSION 

INTRODUCTION

"The rape was nothing compared to the way my school has treated me."

--Andrea Pino (1)

Accountability to survivors by educational institutions is crucial to the delivery of Title IX's (2) promise of equal access to the benefits of an education without discrimination on the basis of sex, a promise vitiated by sexual harassment with impunity. Since 1998, the legal standard for institutional liability has been "deliberate indifference" to known discrimination. (3) Inequality is produced by many practices other than conscious disregard of known discrimination. (4) The deliberate indifference standard does not implement Title IX's distinctive statutory outcome-defined mandate of providing equal access to the benefits of an education. None of its liability elements necessarily promote equality, nor are they measured against an equality standard. Deliberate indifference as used under Title IX applies after assaults are reported with no attention to the unequal context, hierarchical relations, or documented climate of abuse that produces them. It looks at procedural steps taken by an educational institution but not at whether the steps produce a sex-equal education for the survivor or the group of which the survivor is a member. No changes that would preclude repetition, so as to transform campuses into sex-equal educational environments going forward, are incentivized or mandated.

Over the years of its application, the deliberate indifference standard has repeatedly and disproportionately (5) been deployed against survivors' cases, including when administrative handling of their situations is concededly callous, incompetent, unresponsive, inept, and inapt. (6) Under deliberate indifference, overall data on the occurrence of sexual abuse in schools has not moved an inch. (7) The standard permits a wide margin of tolerance for sexual abuse, appearing predicated on a belief in its inevitability, especially in the helplessness of officials and authorities to prevent or eliminate it among young people. Under the aegis of the deliberate indifference standard, women students in particular--disproportionately subjected to this form of gender-based aggression along with some students of all sexes and sexual orientations--have been sexually violated in their schooling from elementary grades through graduate school. The abuse has left them damaged academically, emotionally, and developmentally without mitigation or relief, let alone change, for decades. (8)

The "due diligence" standard as applied in international human rights law, including in international law against violence against women, provides a promising doctrine for institutional liability for sexual harassment in schools. Due diligence, adopted as a liability standard, would hold schools accountable to survivors for failure to prevent, adequately investigate, effectively respond to, and transformatively remediate sexual violation on campuses, so that sex equality in education is delivered in reality. Its contents would not be foreign to schools, courts, and agencies that have struggled creatively within the straitjacket of existing doctrine to produce such outcomes against the strictures of the current standard. Due diligence would provide what Title IX should be: a tool students could use in their own private actions in courts with their own lawyers to back up administrative enforcement efforts. Crucially, holding schools to a due diligence rule would provide the incentive for change that is lacking under the deliberate indifference doctrine. The goal would be ensuring that sexual abuse is no longer endemic to many schools' cultures, so that all students receive the safe and equal benefit of an education without discrimination on the basis of sex. …

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