When Equal Opportunity Meets Freedom of Expression: Student-On-Student Sexual Harassment and the First Amendment in School

摘要

Sexual harassment can take a variety of forms. It can be verbal, nonverbal or physical. Often it takes the form of hateful and harassing speech. In the AAUW Survey, 76% of the girls and 56 % of the boys surveyed had been the target of sexual comments, jokes, gestures or looks. Even when the harassment includes physical contact of some nature, it is typically accompanied or preceded by verbal harassment. While school officials and parents look for solutions to these problems, courts are struggling with the questions as well. In recent years, the problem of student-on-student sexual harassment has found its way into the courts as a number of students have pursued claims under Title IX of the Education Amendments of 1972. Courts have wrestled with defining the conditions under which a school district violates Title IX and under which it will incur financial liability for failing to take action with respect to student-on-student sexual harassment. There has been a general confusion and lack of consensus among the courts about the responsibility of a school system to address the problem, as well as the proper approach for prevention of, and protection from liability for, student-on-student sexual harassment. While the problem of student-on-student sexual harassment has begun to receive attention among legal academics, courts and the media, it has focused primarily on whether schools can be held civilly liable for the failure to remedy sexual harassment of a student by another student or other third parties. Very little attention has been given to whether there may be First Amendment limitations on a school’s efforts to control harassing speech. This article addresses that question.