The Constitution does not require school bans on peer sexual harassment

Antidiscrimination laws ban certain kinds of discrimination by private businesses, schools, and even private clubs. But the Constitution doesn’t. Due to its “state action” limit, the Constitution only reaches governmental action, not discrimination or harassment by private parties. But some court rulings have disregarded this limit by incorrectly holding schools liable under the Constitution’s equal protection clause for “deliberate indifference” to discriminatory harassment committed by one type of private actor, namely students. This wrongly requires schools to ban private discrimination that the Supreme Court has said does not violate the Constitution.

The Supreme Court has twice ruled that discrimination committed by private entities doesn’t violate the Constitution, even when the government gives the private entity a scarce public benefit, such as a liquor license or special intellectual-property rights. Moose Lodge v. Irvis, 407 U.S. 163, 171-73 (1972) (racial discrimination by private club did not violate Fourteenth Amendment even when the club received a scarce liquor license from the state and was regulated by it, given “the essential dichotomy between discriminatory action by the State, which is prohibited by the Equal Protection Clause, and private conduct, ‘however discriminatory or wrongful,’ against which that clause ‘erects no shield'”; overturning injunction against club and state liquor authority); San Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522 (1987)(no equal protection violation occurred when private entity that had special federal trademark privileges discriminated based on sexual orientation).

By contrast, antidiscrimination statutes such as Title IX often ban discrimination by private schools. See, e.g., Grove City College v. Bell, 465 U.S. 555 (1984). Or require them to regulate the behavior of students, who are private citizens. For example, if a school district is deliberately indifferent to sexual harassment by students, that violates Title IX. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Even though students are “not agents” of their school, and are not state actors. UWM Post v. Bd. of Regents, 774 F.Supp. 1163, 1177 (E.D. Wis. 1991); compare Rosenberger v. Rector of U.Va., 515 U.S. 819, 841 (1995) (student speech is “private speech,” not “government speech,” for purposes of Constitution’s establishment clause).

Since Title IX bans discrimination, and the Constitution also bans discrimination, some lower courts have ruled that schools are also liable under the Constitution if they are deliberately indifferent to sexual harassment committed by students. But that is wrong and simply overlooks the differences between Title IX and the Constitution, such as the Constitution’s “state action” limit, which is recognized in binding Supreme Court rulings.

There are also contrary court rulings which have correctly rejected constitutional claims against school officials over student-on-student harassment. They are right to reject such liability, absent proof of a discriminatory purpose by the school official. Absent such a showing, a school official should not be liable under the Constitution’s equal protection clause for failing to respond to such private discrimination.

A number of courts have rejected such “peer harassment” lawsuits. See, e.g., Soper v. Hoben, 195 F.3d 845, 852 (6th Cir.1999) (student suing over peer sexual harassment must show discriminatory purpose by school official under Constitution; “In order to establish an equal protection violation, the [plaintiffs] must show that [the victim]’s complaints were treated differently by the [school] than were complaints by [the victim’s] male counterparts,” and “must establish that the HVPS treated the complaints differently ‘because of, not merely in spite of, the harmful [disparate] effect that such treatment would have’”) (citing Soto v. Flores, 103 F.3d 1056, 1067 (1st Cir.1997) and quoting Doe v. Londonderry Sch. Dist., 970 F.Supp. 64, 77-78 (D.N.H.1997)(finding no peer harassment liability)); Fletcher v. Lewisville Indep. Sch. Dist., 2016 WL 3381296, *4 (E.D. Tex. 2016)(same); Morlock v. West Central Education District, 46 F.Supp.2d 892 (D. Minn. 1999) (same); see also Reed v. Kerens Indep. Sch. Dist., 2017 WL 2463275, *17 (N.D. Tex. June 6, 2017) (applying the same principles to student-on-student racial harassment), citing Doe v. Columbia-Brazoria Sch. Dist., 855 F.3d 681, 687-88 (5th Cir. 2017) (no duty to protect against sexual harassment by other students); S.S. v. Eastern Kentucky Univ., 2008 WL 2596660 (6th Cir. July 2, 2008) (disability harassment plaintiff must show school officials “intentionally treated him differently”).

To show an unconstitutional “discriminatory purpose,” pointing to deliberate indifference is not enough, and something more must be shown, such as a desire to harm women, or treating harassment complaints by girls even worse than complaints by boys. As the Supreme Court has explained, under the Constitution’s equal protection clause:

‘Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. … It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

The Constitution’s equal protection clause may create narrower liability for harassment by students than Title IX does. But it can create broader liability for harassment by school faculty and staff, who are state actors. Under Title IX, a school district or state college is only liable for sexual harassment committed by its employees when it has knowledge of it and is deliberately indifferent to it. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). And such employees are not themselves liable under Title IX, since Title IX only allows lawsuits against schools, not school employees. Smith v. Metropolitan School District, 128 F.3d 1014 (7th Cir. 1997). So a student raped by a teacher can end up with no federal remedy at all under Title IX, when the rape happened but the school was not indifferent to it.

By contrast, under the Constitution, there is a remedy for the victim, because the individual school-district employee or state college professor can be sued for sexual harassment because he is a “state actor.” That is true even when the harasser’s college disciplines him for the harassment, and thus avoids liability of its own under Title IX. The sexually harassing instructor can still be sued under the Constitution. See Hayut v. State Univ. of N.Y., 352 F.3d 733 (2nd Cir. 2003).

When a state college employee’s supervisor permits him to sexually harass students, that individual supervisor, too, can be liable under for his “deliberate indifference” (under 42 U.S.C. 1983, which is what gives you the right to sue for damages for Constitutional violations). But that is only because the subordinate is a “state actor” by virtue of being a state employee, not a student, and Section 1983 imposes liability on supervisors for the conduct of state-actor subordinates who violate the Constitution. Such deliberate-indifference liability would not logically apply to harassment by a student, since students are not state actors to begin with, so there would be no underlying constitution violation for the supervisor to be “deliberately indifferent” to. See Jennings v. University of North Carolina, 482 F.3d 686, 701 (4th Cir. 2007) (en banc) (finding “administrative official” liable for deliberate indifference to sexual harassment committed by school coach, because the coach’s status as “state actor” was shown by his “state employment”).