Court Upholds That Campus Sexual Harassment Must Be ‘Severe, Pervasive, And Objectively Offensive’ F

Regular readers by now are aware of Title IX, a statute that is supposed to prevent sex discrimination in educational institutes. It originally related to opportunities for women in college sports. For example, if a school had a men’s basketball team, it couldn’t refuse women a basketball team.

Over the years, however, the statute quickly evolved. In one early 90s lawsuit – against Brown University – activists argued that it wasn’t enough for the school to provide women with equal or more sports opportunities than men; the school was also responsible for generating women’s interests in sports. As Jessica Gavora wrote while looking back at the case in 2015: “In effect the ruling said that Brown women didn’t know what they wanted. They only thought they were dancers or actors or musicians. They had to be taught that they were really athletes. They didn’t know what was good for them but the government did.”

By the 2000s, Title IX evolved again – this time it was being used to adjudicate alleged sexual misconduct between co-eds. The basis was that if schools weren’t adjudicating complaints from female students, the school was effectively discriminating against them and violating Title IX. Now, Title IX is its own department in colleges and universities, with numerous employees trained to believe all accusers.

As attorney Scott Greenfield recently wrote, “the law from which the Title IX campus sex industry was born fails to support its existence and, by its explicit words, contradicts the existence of the unlawful scheme forced upon colleges by the bureaucrats in control of the Department of Education’s Office of Civil Rights in their ‘Dear Colleague Letters.’”

One of the major hurdles to Title IX which is constantly ignored is a little Supreme Court decision you may have heard about: Davis v. Monroe County Board of Education. This decision requires harassment to be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.”

As Greenfield noted, the standard above never appeared in the Obama administration’s guidance regarding schools adjudicating campus sexual assault and harassment, and schools largely ignored it.

But a recent ruling from the U.S. Court of Appeals for the Sixth Circuit has upheld the Davis decision:

A victim of “student-on-student sexual harassment” has a private cause of action against the school under Title IX of the Education Amendments of 1972 (Title IX), 86 Stat. 373, codified as 20 U.S.C. § 1681, et seq., based on the formula first set out in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Under that formula, the sexual harassment must meet a certain standard and the evidence must satisfy the elements for an intentional tort. Our particular focus in this appeal is on the requirements that the harassment must be “pervasive” and the school’s response must “cause” the injury.

This means that accusers can no longer claim schools violated Title IX simply because the man they accused didn’t get expelled. There simply aren’t any schools left today who would dare take lengths to protect an accused student, since its much easier and much less controversial to bend the rules to punish the accused no matter how little evidence exists or if contradictory evidence exists.

“In other words, unless there was substantive reason to believe that a student would persist in ‘severe, pervasive and objectively offensive’ conduct after the university was alerted to a complaint, and then was deliberately indifferent, Title IX wasn’t implicated at all,” Greenfield wrote. “The vast majority of Title IX complaints fail to meet the stringent criteria for sexual harassment, and almost none of them involve conduct that went beyond a one-time sexual encounter.”

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