Title IX – Statutory Language No person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance

Title IX – Implied Cause of Action Courts will determine the nature of claims under Title IX. Sexual harassment is a type of discrimination actionable under Title IX. Gebser

Student on Student Harassment Gender based peer harassment can be actionable. Davis No respondeat superior or agency. Institution liable only for own discriminatory conduct.

Davis Requirements Actual knowledge; Deliberate Indifference; Severe and pervasive harassment. and Deprives of educational benefits or opportunities.

Actual Knowledge Davis rejects liability under a negligence or “should have known” standard. A person with the ability to remedy the harassment has to know of it.

Deliberate Indifference Again, not a negligence standard. Doesn’t require any particular response. Must take action that is intended to correct the harassment.

Severe and Pervasive Harassment Objective standard A single incident can be severe and pervasive enough to put institution on notice Context matters

Deprive of Educational Opportunity Must interfere with educational opportunity or participation. Emotional distress where plaintiff avoids the educational environment is enough

Cyberbullying Harassment must occur in context where institution has substantial control Use of institution’s technology

Cyberbullying Need to watch out for First Amendment issues. Westboro Baptist Church Must meet severe and pervasive requirement