Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the limitations of Title IX as a tool for protecting college students. What has gone far less recognized is that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title IX claims, even in some of the most egregious cases. Although these two potentially powerful civil rights laws should protect children from and remedy these harms, there is a civil rights vacuum in public schools.
This Article argues that courts unjustifiably limit public school liability under both the Fourteenth Amendment and Title IX for student physical, verbal, and sexual harassment and abuse. This jurisprudence is limited due to the courts’ misconceptions about families and schools. Taken in the aggregate, these laws leave children, particularly low-income children, without protection and vulnerable in school.
In making these arguments, this Article is the first to demonstrate how the courts’ evaluations of these civil rights claims are based on misconceptions and are, therefore, unjustified. It also exposes the collective failure of these civil rights laws to protect students. As a remedy, this Article proposes changes to the assessment of these Fourteenth Amendment and Title IX claims that abandon misconceptions, increase schools’ potential for liability, and promote the development in schools of processes for preventing, discovering, and remedying students’ harms.
Emily Suski, The School Civil Rights Vacuum, 66 UCLA L Rev 720 (2019).