Articles Posted in Education Law

Passed 50 years ago in June, Title IX has had a profound and widely-recognized impact on girls’ and women’s sports. But Title IX did not only offer parity in sports. It has been instrumental in compensating victims of discrimination and harassment by teachers, coaches, professors and other students. Until now. The Supreme Court quietly eviscerated this right just before Title IX’s anniversary, with little fanfare or public outrage. In a decision superficially limited to the Rehabilitation Act and the Affordable Care Act, the Court eliminated damages under Title IX – and Title VI — for emotional distress.

Victims of sex and gender-based discrimination and harassment have successfully used Title IX to obtain relief when recipients of federal funds have failed to enforce the law. In Hawaii, for example, a jury awarded $810,000 after a ninth-grade girl with the intellectual ability of a second grader was raped by an older boy from her class. The girl’s mother previously had expressed concerns to the school about this student. In California, a male student was alleged to have pressured a middle school girl into sending nude pictures and used those pictures to blackmail her into performing oral sex; students then posted pictures on social media of the female student performing oral sex. She obtained a $2 million dollar settlement. In Florida, a jury awarded a single plaintiff $6 million dollars after a teacher sexually abused her during her junior and senior years in school. The abuse included child pornography and forcible kissing and touching. The school had previously received reports of sexual abuse but failed to investigate. In Colorado, a school district settled a claim for $5 million dollars. A teacher was alleged to have sexually abused a student when she was nine years old. The school knew the teacher had a history of inappropriate conduct but failed to act to prevent the abuse. Based on the Supreme Court’s recent ruling in Cummings v. Keller Premier Rehab, were claims like those brought today under Title IX, there could be no award for their depression, their suicide attempts, their eating disorders, their missed classes, their trauma.

In 1972, Congress enacted Title IX so that federal funds would not support discriminatory practices. The law bars educational programs or activities that accept federal funds from engaging in discrimination on the basis of sex. In other words, schools must take action to prevent and address sexual harassment and discrimination. Failing to do so could lead to the loss of important federal dollars (although in reality, that rarely if ever happens). Title IX was patterned after Title VI of the Civil Rights Act of 1964, which prohibits discrimination by funding recipients with respect to race, color and national origin. Although neither statute expressly provides victims of discrimination with the right to sue in court, in 1979, after a female student alleged she was denied admission to medical school because of her sex, the Supreme Court held in Cannon v. University of Chicago, that Title IX (and Title VI) allowed her to sue in court. Over a decade later, in 1992, when a high school student sued alleging her teacher had sexually harassed and abused her, the Court confirmed that the right to bring suit included the ability to obtain money damages. This apparent expansion of rights may have peaked in the mid-90s: soon after, in its 1998 decision Gebser v. Lago Vista Independent School District,, the Court restricted when schools could be held liable for harassment.

A civil rights lawsuit has received some assistance from the federal government. The United States Department of Justice has filed an amicus brief in a lawsuit brought by racial discrimination attorney Joshua Friedman on behalf of a group of Michigan high school students.

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We are in the final days before our pretrial conference in this peer racial harassment case heading to trial in Newark, New Jersey. In this case, against the Lenape Valley Regional Board of Education, and Lenape Valley Regional High School Principal Douglas deMarrais, our clients Edward and Leeann Lee sued to recover damages to their then-teenage multi-racial son, who was harassed at school. They brought claims under federal and state laws prohibiting discrimination in school.

In the lawsuit, the defendants admitted much of the conduct the plaintiffs alleged in their Complaint. In fact, the principal admitted that E.L. (the student) was subjected to “an inordinate number of incidents [of racial slurs]” during his 13 months at Lenape Valley Regional High School, where he was one of only a small percentage of minority students. During discovery in this case, Mr. deMarrais admitted that between November 2004 and January 2006, Leeann and Edward Lee complained of racial slurs made to their son on multiple occasions, many of which the school confirmed. Defendants admitted the Lees complained that during his Freshman year (November 2004 thought June 2005) their son “E.L.” was called the “n” word on the school bus on at least three occasions by three different students, another racial slur by a student on the basketball team, and another racial slur by three girls; and between September 2005 and January 2006, their son was called “ghetto or gangster” by a student who had called him the “n” word the previous year, called the “n” word by a girl who had used the word towards their son the previous year, was told he would be “picking [the] cotton” of a Caucasian student, called the “n” word by that same student a week later, and called the “n” word by another student shortly after.
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Harassers abuse the positions of power they occupy, such as supervisor, or professor. Most of us are too afraid of the consequences to speak out. Those who do may be ostracized, disbelieved and face retaliation. But if we do not find the courage to speak out about civil rights violations, they continue.

Professor Chandler had been the subject of sexual harassment, racial harassment and retaliation complaints at Edinboro University since the mid-1990s. Although the university received these complaints it did not stop Professor Chandler from sexually harassing students. Some students who made complaints faced waits of years for a response and then were told that unless they testified in a formal hearing there was nothing the university could do. By then they had graduated and just wanted to forget their nightmare, so nothing changed,

Cameron Aulner is no ordinary young man.

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