A r c h i v e d I n f o r m a t i o nProtecting Students from Harassment and Hate Crime: A Guide for Schools - January 1999
On the other hand, other courts of appeal have held that peer harassment is covered by Title IX. In Doe v. University of Illinois, 138 F.3d 653 (7th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3083 (July 13, 1998) (No. 98-126), the Court of Appeals for the Seventh Circuit (covering Illinois, Wisconsin, and Indiana), held that a school could be held liable for the harassment of a student by another student when the school knew about the harassment but failed to take meaningful action "plausibly directed to putting an end" to the harassment. 138 F.3d 653, 667.
The Court of Appeals for the Ninth Circuit (covering Montana, Idaho, Washington, Oregon, Nevada, California, and Arizona) has also held that schools have a duty under Title IX to take reasonable steps to remedy a known hostile environment created by peer harassment. Oona R.-S.- by Kate S. v. McCaffrey, 143 F.3d 473 (1998). In Morse v. Regents of the University of Colorado, 154 F.3d 1124 (1998), the 10th Circuit (covering Wyoming, Utah, Colorado, New Mexico, Kansas, and Oklahoma) held that the defendant university could be liable for the harm suffered as a result of sexual harassment and hostile environment created by a fellow student (who exercised some measure of authority over plaintiffs) because the defendant knew of the harassment and did not respond adequately. In addition, a panel of the Fourth Circuit had held that a public university was liable under Title IX for a student-on-student sexual assault. However, the full Fourth Circuit indicated it would further consider the issue. Brzonkala v. Virginia Polytechnic Inst., 132 F.3d 949 (4th Cir. 1997), rehearing en banc granted, opinion vacated (4th Cir. Feb. 5, 1998). The Fourth Circuit includes Virginia, West Virginia, Maryland, North Carolina, and South Carolina.
Since the Supreme Court is likely to issue an opinion resolving the conflicting interpretations of the lower federal courts, school districts should consult their legal counsel regarding their potential liability under the civil rights statutes discussed in this Guide with respect to peer harassment. Furthermore, districts in the states covered by the Fifth and Eleventh Circuits are not precluded from adopting policies and procedures to protect students from peer harassment, and this Guide presents effective methods for doing so. Some of the states in the Fifth and Eleventh Circuits specifically prohibit sexual harassment in schools.