Jack and Jill Go to Court: Litigating a Peer Sexual Harassment Case Under Title IX

Title IX peer sexual harassment cases present challenges to litigators because of the unique educational environment in which these cases arise. This Article attempts to educate litigators on the prima facie case, evidentiary issues, and the overall presentation of peer sexual harassment cases

Held Back: Addressing Misplacement of 9th Grade Students in Bay Area School Math Classes

While districts regularly make placement decisions regarding all core subjects (math, English, science, social studies), one area is most significant: math. Most universities (including California State and University of California) require at least three years of math for college eligibility, and they prefer students who have taken highlevel math courses such as Calculus or AP Statistics. However, such high-level math courses are generally only available to students who begin high school in Geometry. Ninth grade math placement can therefore not only have far-reaching impacts on a student's confidence, general knowledge of mathematical concepts, and high school experience -- more importantly, it can impact the college and life opportunities available to that student. This report is intended to call attention to the math misplacement issue; to educate districts, community members, and parents about the potential liability associated with such placement decisions; and to encourage districts to take relatively simple steps to remedy the problem of math misplacement. Part I of this report explores the problem of math misplacement in greater detail and reviews the publicly available data regarding 9th graders' math class placement in school districts in San Mateo and Santa Clara counties. Part II explains the disparate impact doctrine and demonstrates why a district that engages in math misplacement, even if unintentionally, puts itself at legal risk. Part III explores other possible bases of legal liability. Finally, Part IV presents practical solutions to the problem of math misplacement and provides recommendations for school districts, community advocates, and lawyers to follow to remedy this critical civil rights issue

At the Crossroads of Title IX and a New “Idea”: Why Bullying Need Not Be “A Normal Part of Growing Up” for Special Education Children

In 21st century America, bullying of children by other children at school continues at epidemic levels. Organizations as diverse as the Department of Health and Human Services (through the National Institutes of Health and Health Resources and Services Administration (HRSA)), the National Crime Prevention Council, the National Youth Violence Prevention Resource Center, and the National Education Association, have all targeted school bullying and its consequences in various initiatives and campaigns over the last several years. These organizations argue that if schools and parents do not properly intervene to prevent bullying, the long-term ramifications for both the bully and the bullied could be disastrous. In fact, there appears to be a new momentum among parents and educators to take the problem of bullying more seriously. Recent violence at schools across the country, including the now-infamous Columbine school shooting, has made educators, parents, and children more reluctant to accept that bullying is just a normal part of growing up. Even so, legal remedies for victims of bullying continue to be woefully inadequate. Although victims of student-on-student sexual harassment have a claim for compensatory damages under the federal gender discrimination in education law, Title IX of the Education Amendments of 1972, the Supreme Court of the United States has yet to endorse the idea of a same-sex harassment cause of action for more common forms of bullying under Title IX (i.e., boys bullying boys or girls bullying girls). That being said, there is some hope that same-sex harassment causes of action for bullying behavior may become more common under Title IX as an increasing number of courts and the United States Department of Education have adopted the reasoning of the Supreme Court\u27s Title VII decision of Oncale v. Sundowner Offshore Services, Inc. In these instances, decisions have embraced Oncale\u27s central teaching that same-sex harassment need not depend upon sexual attraction or desire, but may also derive from nonsexual animus based on the failure of the harassed individual to live up to stereotypical gender norms. Indeed, research studies and anecdotal evidence suggest that those victimized by bullying are typically students who do not fit stereotypical notions of what it is to be masculine or feminine, athletic, cool, or in at school. Classic examples include not only children who are smaller, younger, gay or effeminate, obese, or from different countries, but also children who look and/or act differently from other children as a result of physical and/or mental impairments (i.e., special education children). It is the legal ramifications for verbally and physically abused special education children, mostly by members of their own gender, upon which this article focuses. Presently, most observers, and even the Supreme Court in its seminal student-on-student sexual harassment decision, Davis v. Monroe County Bd. of Educ., have yet to undertake a sufficient evaluation of the complex legal issues surrounding the bullying of special education children. To date, commentators and lower courts have primarily focused on the Title IX implications for students subject to same-sex harassment by other students and then, mostly in the context of harassment based on the actual, or perceived, sexual orientation of the student. Yet, when another student bullies a special education child based on that child\u27s appearance, behavior, or failure to live up to stereotyped notions of gender, it is necessary to consider the intersection between Title IX and the primary, federal special education law, the Individuals with Disabilities in Education Act (IDEA). Under IDEA, children with disabilities are entitled to a free and appropriate education (FAPE) in the least restrictive environment practicable. In turn, a FAPE includes special education and related services which are reasonably calculated to permit a child with a disability to benefit educationally. Consequently, actions taken by school districts to alleviate an unpleasant bullying situation for a special education child in order to comply with Title IX\u27s dictates concerning peer sexual harassment may inadvertently also violate a child\u27s right to a FAPE by altering that child\u27s placement and/or programs. In order to prevent placing school officials in this legal Catch-22, a legal model needs to be developed which ties the overlapping statutory frameworks of Title IX and IDEA together in one hybrid legal cause of action. Alternatively, if Title IX\u27s stringent legal standards for peer sexual harassment cannot be met in a given bullying case even after incorporating IDEA concepts, IDEA may also provide legal bases for special education children to obtain monetary damages against school officials who have failed to protect them from bullying, which, in turn, has violated that child\u27s right to a FAPE under IDEA. With these issues at the forefront, this article advocates two IDEA-based legal models to increase the legal protections available for special education children who are the subject of same-sex harassment/bullying at school. The first proposal attempts to provide this additional protection by strengthening the Davis Title IX framework for peer sexual harassment at school by incorporating IDEA concepts directly into that framework. Under this hybrid model, a school is liable for the same-sex harassment of a special education child where (1) the school had actual notice of the harassment; (2) the character of the harassment was severe, pervasive, and objectively offensive; (3) the school\u27s response to the known harassment was clearly unreasonable in light of its obligations under Title IX and IDEA; and (4) the student was denied a free and appropriate education in the least restrictive environment practicable or otherwise denied access to appropriate educational opportunities and benefits as a result of the harassment. Next, after addressing the lack of effective legal theories of recovery outside the Title IX context because of various procedural and substantive limitations on such claims, this article sets forth a second legal model. The second legal model involves an IDEA-based Section 1983 action for money damages, while at the same time recognizing that special education plaintiffs should normally have to first exhaust their administrative remedies under IDEA before bringing such a claim

The Path of Most Resistance: The Long Road Toward Gender Equity in Intercollegiate Athletics

While sports have long played an important role in educating boys and young men in leadership, physical fitness and competitive skills, only recent- ly have girls and young women had the chance to benefit from athletic opportunities. Over two decades of experience with a federal statute pro- hibiting sex discrimination in school sports programs have brought important successes in opening doors for female athletes. However, enforcement of equal opportunity in this area has encountered strong resistance from the athletic establishment, which has fought efforts to equalize resources and opportunities for young women. Heightened enforcement of equal athletic opportunity in the 1990s has rekindled old opposition to basic notions of gender fairness in sports. React- ing to the recent successes of female athletes in the courts, both college foot- ball and other men\u27s sports advocates have taken the offensive in challeng- ing the law\u27s requirements, arguing that men are more interested in sports than women and therefore deserve the lion\u27s share of resources and opportu- nities. While such challenges have not succeeded, future progress toward gender equity in sports requires a renewed commitment to the underlying principle that female athletes are as deserving of sports opportunities as their male counterparts. This Article discusses the recent backlash against the legal requirements governing sex discrimination in intercollegiate athletic programs in the con- text of the history and enforcement of the law. Part I discusses the require- ments of the law, its legislative and interpretive history, and recent advances in enforcement. Part ..

The Path of Most Resistance: The Long Road Toward Gender Equity in Intercollegiate Athletics

While sports have long played an important role in educating boys and young men in leadership, physical fitness and competitive skills, only recent- ly have girls and young women had the chance to benefit from athletic opportunities. Over two decades of experience with a federal statute pro- hibiting sex discrimination in school sports programs have brought important successes in opening doors for female athletes. However, enforcement of equal opportunity in this area has encountered strong resistance from the athletic establishment, which has fought efforts to equalize resources and opportunities for young women. Heightened enforcement of equal athletic opportunity in the 1990s has rekindled old opposition to basic notions of gender fairness in sports. React- ing to the recent successes of female athletes in the courts, both college foot- ball and other men\u27s sports advocates have taken the offensive in challeng- ing the law\u27s requirements, arguing that men are more interested in sports than women and therefore deserve the lion\u27s share of resources and opportu- nities. While such challenges have not succeeded, future progress toward gender equity in sports requires a renewed commitment to the underlying principle that female athletes are as deserving of sports opportunities as their male counterparts. This Article discusses the recent backlash against the legal requirements governing sex discrimination in intercollegiate athletic programs in the con- text of the history and enforcement of the law. Part I discusses the require- ments of the law, its legislative and interpretive history, and recent advances in enforcement. Part ..