School Liability for Peer Sexual Harassment after Davis: Shifting from Intent to Causation in Discrimination Law

36 Pages Posted: 25 Jul 2008

See all articles by Deborah L. Brake

Deborah L. Brake

University of Pittsburgh - School of Law

Abstract

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct from and superior to a search for discriminatory intent. The final section offers a brief analysis of what Davis could mean for discrimination law more broadly if courts seriously applied the insights embedded in the Davis case.

Keywords: Title IX, sexual harassment, peer sexual harassment, student harasser, discrimination, school liability, civil rights, gender equity, hostile environment

Suggested Citation

Brake, Deborah L., School Liability for Peer Sexual Harassment after Davis: Shifting from Intent to Causation in Discrimination Law. Hastings Women's Law Journal, Vol. 12, p. 5, 2001, U. of Pittsburgh Legal Studies Research Paper Series , Available at SSRN: https://ssrn.com/abstract=1166555

Deborah L. Brake (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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