This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment qualifies as sex discrimination, and the harassers’ First Amendment privileges are unlikely to be in jeopardy.
GW Paper Series
GWU Legal Studies Research Paper No. 2013-68; GWU Law School Public Law Research Paper No. 2013-68
Joan Schaffner, Dispelling the Misconceptions Raised by the Davis Dissent, 12 HASTINGS WOMEN'S L.J. 141 (2001).