Perhaps, @“Cardinal Fang”, in some abstract sense that is true. But only certain classifications are accorded legal scrutiny under the 5th and 14th Amendments and civil rights legislation like Title IX. People are familiar with the most common ones (race, national origin, alienage), accorded the highest levels of scrutiny. Discrimination based on sex is generally accorded only an intermediate level (otherwise, it would be hard to have things like women’s sports, separate bathrooms, etc.)
Anyway, the classification of “harasser” versus “harassed” is not a suspect classification, as it is not even based on sex, and of course not on any of those strict scrutiny triggers. As I mentioned above somewhere, this could have been a boy-boy or girl-girl situation, and would still be within the purview of Title IX (as interpreted) even though no “equal” access claim would be cognizable, at least based on any covered classification.
People often fail to appreciate some of the nuances and practicalities. The school in Davis was under an obligation to provide both the victim and the harasser with an education, and would have had to justify any policy response to harassment under strict scrutiny to the extent that there are different races within the school, as here. Suppose, for instance, the school had a policy of always reporting any alleged harassment to the police immediately upon learning of it. if it turned out that students of one race were being reported more frequently than another, that would be a huge red flag. The same analysis would apply to lesser disciplinary sanctions like suspension, segregation of offenders, or even expulsion. All decisions would need to be justified with the DOE. (Obama’s “Dear Colleague” letter for instance explicitly discouraged escalation of disciplinary matters to the extent feasible because of observed disparate impact.)
In Davis, allegedly after a lengthy delay following actual knowledge of the abuse, the school got the police involved. How long should a school wait; should it be concerned if it is observing differential problems by race; and what intermediate steps should be taken when dealing with ten and eleven year olds prior to suspending, expelling or getting the police involved?
These are just tough questions, and school administrators are not lawyers, judges or policy makers. None of us actually knows the real facts here. This was a summary judgment motion, so the facts were taken to be true, but on remand they would have been subject to an evidentiary exploration to determine exactly what happened. While the fact pattern was likely to have unfolded substantially as described in the case, none of it was proven, absolutely none. That is the essence of a summary judgment motion. The defendant school district argued that even if the facts were exactly as the plaintiff alleged, the plaintiff still would not have had a private damages recovery under Title IX. This argument won in the lower Federal trial and appeals courts (plaintiff’s case was dismissed), and won the backing of 4 of the 9 SCOTUS Justices. While this sounds harsh, people should remember that plaintiff could always have brought suit based on tort against the school administration on any number of theories (negligent failure to supervise being the most obvious).
These issues are very tricky even in the legal context, let alone at the school level. Short of segregating kids by sex at all levels of education, there is no solution that does not involve some balancing and some recognition that human beings, even acting with the best of intentions, are going to act imperfectly. Switching to the college context - for the most part, the kids are legal adults, and I think that serious allegations of abuse should be handled at the adult level through the legal system. Just my two cents.