Ohiodad51, you said “access” and “equal access” are legally the same, since if you had unequal access then you would ipso facto have a claim for discrimination. But what would that claim be? It would be that you were discriminated against for being in a protected class. That’s the only kind of discrimination claim there is in law.
A discrimination claim goes hand in hand with claiming to be in a protected class. It’s illegal to discriminate against people for being in a protected class, but it’s not illegal to discriminate against people for other reasons. I can give Jennifer a lower grade for wearing red shoes, but not for being female. Females are in a protected class, but red shoe wearers are not.
Suppose that Davis v. Monroe required that schools act when a student is being denied access entirely to an educational opportunity because of pervasive harassment from another student, but did not require schools to act when a student was denied equal access because of pervasive harassment. Suppose that Jason is harassing Jennifer and making her life a misery, but Jennifer is still able to go to class, and this is legally interpreted as Jennifer still having access to an education (not equal access, but by hypothesis Davis v. Monroe does not mandate equal access).
What legal theory would then justify the discrimination claim against the school? Schools are required not to discriminate against Jennifer, but where is the requirement that they stop students from discriminating against each other? By hypothesis, not Davis v. Monroe; it does not apply here. Where then? Remember, I’m asking specifically for a discrimination claim, not some other requirements that no doubt exist.
Title IX. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Ed.gov.
Obviously, there are different applicable classes. But the bottom line is that colleges were required to act on related complaints.
We could parse what “excluded” means, too. But its not literal barring a student from class.
I think the issue is the assumption that there is some distinction between access and equal access. Legally, there can’t be a distinction under the equal protection clause.
The real issue imho is the changing of the standard as to what level of activity/harassment would compel a state actor (here schools) to act.
We’re discussing Davis v Monroe, which decided in what situations TItle IX requires schools to act when there is student on student discrimination in the school. If Title IX does not apply to a situation, then it doesn’t matter what Title IX says about discrimination. A student doesn’t have a claim about discrimination under Title IX if Title IX doesn’t apply.
@Ohiodad51, I think we’re getting at the same issue in a different way. How bad does the harassment have to be before schools have to act? So bad that it denies the student “access” to the school’s education program or activity, say Davis v Monroe and also (apparently) the new guidelines. Well, how bad is that? What is bad enough that it denies the student access? What does it mean to deny access?
Hence my point about the 1,000+ cases citing to Davis v Monroe. One certain benefit about aligning the standards in the proposed administrative guidance with the existing legal standards is that there will be quite a lot of publicly available case law that will apply the standards in various scenarios.
What’s the answer, according to the case law? How bad does the behavior have to be, according to the case law? We’re talking here about college students; how much of the case law applies to adults harassing other adults?
I think that’s been covered…the new law is rumored to follow federal definitions. So for all practical purposes: severe, pervasive and objectively offensive. The concept of “a reasonable person” is well entrenched in law so one could infer that “objectively offensive” would relate to how a reasonable person would feel. College kids are legal adults and there are probably minuscule percentages of juveniles ( in Michigan, 17 is considered adult with regard to many laws) so I’m not sure why different standards would apply to college kids than to the general population around harassment and assault.
The federal definition is “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Are you telling me the part about denying a person access is meaningless verbiage and only the severe, pervasive and objectively offensive part matters?
Anyway, what does this all mean? If I’m head lawyer at a small college, what do I tell administrators they have to do? What student behavior is so bad they have to act if they think it might have happened? What student behavior is not bad enough so they have to act? How is this different from the current regulations?
Or do I have to go to the damn law library again and read cases, because nobody here can answer?
“If I’m head lawyer at a small college, what do I tell administrators they have to do?”
You will probably be hiring a consultant to come in and train the staff once the new regs are out. That’s probably what you’re doing already. Those consultants will make their best guesses about how your institution protects itself under the new scheme. The head lawyer’s #1 job is to CYA.
There are no cases to read yet. No one knows yet what the effects of the new regs will be. We don’t even know for sure what they will say.
Here’s one journalist’s take that I mostly agree with based on the little we know so far:
No, the conduct has to be “severe, pervasive and objectively offensive” (assuming that is what is in the rule when it finishes the administrative rule making process) and then the consequence of that behavior has to be to to deny a person access to the school’s education program or activity (making the same assumption). Both parts work together.
Practically, I would assume that any conduct that meets the first part (severe, pervasive and objectively offensive) and that occurs on campus/schools function/etc will meet the second part of the test (deny access). I think the deny access part of the definition will likely practically come in to play when the issue involves off campus/unrelated conduct.
Think of it like this. A woman is eating a burger in a cafeteria at Ohio State and another student subjects her to “severe, pervasive and objectively offensive conduct” by, let’s say, repeatedly and lewdly commenting on her breasts.
That would easily meet the second part of the test, because it acts to deny access to a school activity (eating lunch in the caf). That same woman is eating the same burger in a bar on High Street and the same guy says the same things, now there is an issue of whether conduct in an off campus bar really causes a denial of “access to the school’s program or activity”.
So, @hanna, what you’re saying is @SatchelSF and @Ohiodad51 are mistaken in asserting there are reams of cases that tell the colleges how to interpret Davis v Monroe in the context of colleges?
The Atlantic article is helpful, but it still doesn’t answer the question of what conduct would merit a response from a college if a complaint was filed.
Reading cases isn’t really going to help as this is a new set of rules so they haven’t been tested. It is likely there will be some guidelines issued or that a group of university lawyers will develop a set of guidelines.
No, I’m saying that the cases that currently control (I use that term loosely, because it’s not a well developed area of the law) may be rendered obsolete if the new regs require a lot of changes.
The law says she has a right to use the university space without enduring that. A lot of reasonable people would feel that they had to get up and leave, and complain to the management if they didn’t do anything about it.
So, she’s losing “access” because some reasonable people would get up and leave, or complain. The conduct has to be so bad that reasonable people would leave or complain.
Hmm. Hardly any students complained about those pervert college doctors, and the few that did complain were dismissed as unreasonable. So I guess the colleges have a good case that they weren’t responsible for doing anything. Seems like saying some reasonable people would leave or complain ignores the countervailing reasons to stay even if the harassment is dreadful…
@“Cardinal Fang” you’re asking questions which cannot be answered. Each case is fact based. The set of facts is presented to the judge/jury and the reasonable person standard comes into affect.
What does a lawyer tell a school to do? That’s simple – Act in a reasonable way. So if little Johnny is being a turd, reprimand him as is appropriate. If his behavior continues, take further action as necessary. If something seems out of the ordinary, contact legal counsel first. This stuff isn’t rocket science – just act in like a normal reasonable human and address the issue.
The lunchroom example includes if the harassment causes her to limit or avoid eating there. Or great consternation. That generalized access. (Assuming she had a meal plan or could dine a la carte.) This applied to dorm halls, eg whether socializing or leaving for class, restrooms, etc, depending on what was occurring. It’s not one untoward catcall but the level at which it constrains the victim’s choices, movement, etc… I.e. access.
If student complaints about the doctors were dismissed, it still held that they should have been explored.
Colleges were supposed to educate their staff to the nature of sexual harassment and assault. Not react at the last minute.