St. Mary's Law Journal


Despite the high occurrence of sexual harassment in schools, many school officials, who are aware of the abuse, do nothing to prevent it. Yet, some officials are beginning to recognize peer abuse is not acceptable due to the detrimental effects on students. As a result, many schools have implemented successful programs to prevent peer harassment. Furthermore, when schools have not responded adequately to the problem, student victims have turned to the courts, suing schools for failure to ensure an environment free from discrimination. Although victims have had little success in taking these cases to court, constitutional and statutory provisions exist which should protect girls from peer harassment. Female students can seek redress by three avenues including the Equal Protection Clause of the Fourteenth Amendment, the Due Process Clause of the Fourteenth Amendment, and Title IX of the Educational Act of 1972. All three provide relief for females facing peer abuse, at least in theory. In practice there is little protection, due to the element of intentional discrimination on the basis of gender required by all three avenues. Since the Equal Protection and Due Process Clauses of the Fourteenth Amendment and Title IX provide scant relief from peer harassment, female students are left relatively unprotected. Schools know unless they blatantly and intentionally discriminate against female students because of their gender, they will not be held liable. This outcome seriously undermines the concepts of the Fourteenth Amendment and Title IX. Thus, courts should modify their application of these legislative and judicial tools in order to recapture their true meaning. Regarding the Fourteenth Amendment, courts should loosen the intent standard to prevent schools from committing subtle forms of discrimination. Additionally, the Supreme Court should elevate education to a fundamental right, making its infringement subject to strict scrutiny.


St. Mary's University School of Law