Objectively Offensive: The Problem of Applying Title IX to Very Young Students

Abstract

The headlines are full of stories of children as young as kindergarten being suspended from school for “sexual harassment ” for behavior that is largely age-appropriate and seemingly innocent. School officials claim their hands are tied by zero tolerance policies that give them no discretion. This Article explores the history of Title IX, which bans gender discrimination, including sexual harassment, in our nation’s public schools, including elementary schools. Despite guidance from the Department of Education that school officials should consider the age of the children involved when sexual harassment is alleged and should not overreact, and despite the reticence of federal courts to impose liability on schools in these cases, many administrators continue to overcorrect out of a fear of litigation. Justice Kennedy predicted this fear in his dissent from the seminal Title IX sexual harassment case that provided for school district liability for peer-on-peer sexual harassment. The disciplinary codes that attempt to respond to Title IX’s mandate that schools disseminate policies against sexual harassment are part of the problem, as many are vague and overly broad. Ultimately, lawyers may not be successful in challenging suspensions of young children for perceived violations of Title IX in court, though the threat of such litigation has been powerful in many of the more publicized cases. Regardless, there is still a role for attorneys to play as advocates for changing the system as a whole, and moving away from zero tolerance policies when it comes to our youngest students.

Keywords: Title IX, students, children, very young children, zero tolerance, discipline, suspension, expulsion, peer-on-peer sexual harassment, sexually harassing behaviors, unwanted attention, inappropriate touching, age, education