When Christine Blasey Ford explained to the Senate Judiciary Committee why she had not reported her sexual assault at age fifteen, she captured the struggle of many children who must decide whether to make such reports: “For a very long time, I was too afraid and ashamed to tell anyone the details.” Thousands of sexual assaults happen to children in school each year. Title IX, a potentially powerful civil rights law, should protect them. Title IX’s main purpose is to protect individuals from sex discrimination, including in the form of sexual harassment and assault, in public schools. Yet Title IX rarely does so. Title IX’s failure of purpose stems in part from courts’ evaluations of the judicially created “actual notice” standard. That standard requires that students do what Dr. Blasey Ford, out of fear, could not: report their sexual harassment and assaults. Further, courts’ assessments of actual notice mandate that schools receive this notice at particular times, through particular officials, and with particular information. If any of these strict criteria are not met, Title IX allows schools to do nothing in the face of students’ sexual harassment.
This Article argues that in establishing these particularized actual notice requirements, courts have constructed a paradox for students. Courts demand that students do what they largely cannot in order to access the law’s protections. Applying empirical research in behavioral psychology and child and adolescent neuroscience to the analysis of Title IX for the first time in the academic literature, this Article exposes these flaws in Title IX doctrine and policy and recommends appropriate changes. It proposes a re-conceptualization of the actual notice standard, a burden-shifting element to Title IX’s evaluation framework, and statutory modifications that accommodate for psychological and neuro-developmental impediments in children’s decision-making. Such changes would better motivate schools to act in response to sexual harassment of their students and serve Title IX’s protective purpose.
Emily Suski, The Title IX Paradox, 108 Ca. L. Rev. 1147 (2020).