RE:Discrimination and Liability

Dempsey & Brown (
Tue, 27 Oct 1998 09:24:05 -0800


I don't know about "the last few weeks," but activity on Davis is heating
up. See:
If you extend the concept below you can find that in many instances schools
don't have any liability for discrimination. If the source of the
discrimination is the society and if the potential liability is large. If
the kids are discriminatory. If the volunteers are blamed. If the Congress
didn't make clear the recipient's obligations included specific
discrimination and there is money distributed under the Spending Clause.

Perhaps worse than that: Davis has the capacity of taking sexual harassment
control out of the federal courts (at least under Title IX)and returning it
to the streets where the state courts will deal with it. In many state
courts the mechanisms do not exist while in other states the language is
even stronger than Title IX or any of the interpretations.

There seems to be some confusion on the ruling by the Eleventh Circuit. If I
presume to follow the reasoning of the court majority from the lines where
they demand that "... the Supreme Court has required Congress to give
potential recipients unambiguous notice of the conditions they are assuming
when they accept federal funding..." to the point where they
conclude..."nothing in the language or history of Title IX imposes liability
for student-student harassment..." I may simply confuse everyone further. I
don't really see any other effective route available so I will try.

The court uses the Spending Clause as a fundamental of its argument: When
Congress spends and a recipient accepts there is a contract. Congress gives
money and in return the recipient accepts the conditions attached to the
receipt of the funds. The court argues that the institutional obligation to
end peer harassment simply isn't there. Later the court raises a bogey-man
and then disclaims any responsibility for placing the argument in the
context of Davis: according to the court the AAUW provides statistics,
which, when extrapolated to the entire US public school student population,
indicate "roughly" 7,784,000 victims of student-student sexual harassment.
In light of the potential liability (assuming Davis prevails) the court
believes (see footnote 26) that "...Imposing the liability of the sort
envisioned by the appellant could induce school boards to simply reject
federal funding -- in contravention of the will of Congress."

The court expresses its condemnation of the harm that has befallen LaShonda
but concludes that, "...the Congress gave no clear notice to schools and
teachers that they, rather than society as a whole, would accept
responsibility for remedying student-student sexual harassment when they
chose to accept federal financial assistance under Title IX." and affirms
the judgement of the district court.

It doesn't seem any reading of 94-9121 could lead to any other conclusion:
this is the decision the majority of the court reached. The dissenting
justices offer other interpretations, but the majority has spoken.

Herb Dempsey

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