RE:Discrimination and Liability

Wed, 28 Oct 1998 11:02:43 -0600

It is very important to note that if the Supreme Court decision re Davis V.
Monroe County comes out that educational institutions are not obligated
to assure that sex discrimionation does not occur within their school
programs and practices, then schools are free to excuse sexual
harassment among peer students. To make the argument from
"vagueness" as to the obligations that the spending clause entails is
ludicrous. It has been clear that disparate impact re race segregation
(under Title VI) violates the law. If the Supreme Court wishes to switch
the basis of consideration re sexual harassment from Title VII to Title VI
as it clearly does in Gebser, then let's apply the theory of disparate
impact in sexual harassment cases. If the victim of sexual harassment is
female and the allegation involves hostile environment and the argument
is made that all females in the school (as a group) are subjected to a
more severe impact of such odious behavior or that they suffer from
more instances of such behavior from males, then Title IX applies as
does Title VI (in race cases). Rather tortured argument, but I would make
it. Not one justice mentioned the spending clause re Title VI in Gebser
because Title VI is not tied to receipt of fed dollars. Why does case law
from Title VI apply (according to the Gebser decision) more appropriately
than that dervived from Title VII? Who knows? The Supremee Court
really reached in Gebser. They cannot have it both ways: the "spending
clause" argument would cause them to reject the case law under Title VI
and Gebser would have come down differently. If they abandon the
spending clause argument and totally adopt Title VI as the body of law to
guide their discussion of sexual harassment, then the "disparate impact"
argument could be successful.

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