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This article deals with the schools’ role in permitting and encouraging peer sex- and gender-based harassment of children and the law’s role in failing to hold schools accountable for their negligent and intentional behavior in sanctioning it. Part I discusses the evidence of rampant sex- and gender-based harassment in schools. Part II analyzes the problem through the lens of masculinities theory and explains how cultural notions of masculinity create incentives for boys (and some girls) to engage in peer sex- and gender-based harassment.

Part III analyzes court cases and OCR decisions and explains the serious disconnect between the two; it demonstrates the proof difficulties that victims experience when filing suit under Title IX and the resulting lack of incentives for schools to correct the problems. It also shows that, while the OCR has traditionally held schools to more exacting scrutiny than courts, the new Secretary of Education has proposed new regulations that would align its standards with those of the courts. Ironically, if the proposed regulations are promulgated, the result in the era of #MeToo will be to promote even more sex- and gender-based harassment in our schools.

Part IV proposes new legal standards and interpretations of existing standards for the courts that would hold schools more accountable for allowing and condoning peer harassment and argues that the courts’ standards should be more similar to those applied by those historically applied by the OCR. To accomplish prevention, educators must understand the role that toxic masculinity plays in peer sex- and gender-based harassment while at the same time be aware of the potential unequal application of school rules to children of different races and classes. Finally, this article concludes that the law should create incentives for schools to fulfill their responsibility to educate themselves and their students to prevent and remedy peer sex- and gender-based harassment. When schools ignore their responsibilities in this area, they become important training grounds for future harassers, a role that the #MeToo movement should not tolerate.

Publication Citation

2019 U. Chi. Leg. Forum 171.