Linda --
You asked me to clarify what lesser standard might be available to
students seeking non-monetary relief under Title IX for sexual
harassment. Gebser's actual notice and deliberate indifference
standard is limited to claims for monetary damages. In cases of
sexual harassment by a teacher, students could argue that schools are
liable for injunctive relief regardless of whether they knew about the
harassment if the teacher relied on his authority in committing the
harassment. Alternatively, in such cases, students could argue for
injunctive relief if the school knew or should have known of the
harassment and failed to take prompt and appropriate remedial action.
I mention the two alternative standards because lower courts were
split on this before Gebser. The important thing to keep in mind is
that Gebser is clearly limited to claims for money damages.
As to your question about Davis, the issue there is whether Title IX
reaches peer sexual harassment. The Court may also address the
liability standard for holding schools liable for peer sexual
harassment. The Court will issue a decision by the end of term in
June.
Yolanda Wu
NOW LDEF staff attorney
ywu@nowldef.org
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