Does a Hostile Environment have to be Severe and Pervasive in a Title IX case?

Does a Hostile Environment have to be Severe and Pervasive in a Title IX case?

By: Adria Lynn Silva on February 9, 2021

 

Title IX’s language is so broad that the U.S. Supreme Court has held Title IX prohibits sexual harassment by a teacher to a student as held in Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 290-291 (1998), and student on student sexual harassment as held in Davis v. Monroe County Bd. of Edu., 526 U.S. 629, 642 (1999). Davis and it’s progeny state when a student is harassed by another student, the harassment must be “severe, pervasive, and objectively offensive”. Id. But what does “severe, pervasive, and offensive” mean?

For nearly two decades the Department of Education advised:

Both the Court’s and the Department’s definitions are contextual descriptions intended to capture the same concept – that under Title IX, the conduct must be sufficiently serious that it adversely affects a student’s ability to participate in or benefit from the school’s program. In determining whether harassment is actionable, both Davis and the Department tell schools to look at the “constellation of surrounding circumstances, expectations, and relationships” (526 U.S. At 651 (citing Oncale )), and the Davis Court cited approvingly to the underlying core factors described in the 1997 guidance for evaluating the context of the harassment.

2001 Revised Sexual Harassment Guidance (rescinded).

As the former 2001 Guidance recognized, “severe and pervasive and objectionably offensive” does not mean the harassing conduct has to be all of those things. In order to show that the conduct of student on student harassment is actionable under Title IX, the conduct must affect the student’s educational opportunities and the conduct must be be either severe or pervasive (the standard under Title IX’s sister statute Title VII). A court will look to the totality of the circumstances and other factors when looking at potentially harassing conduct. Id. Even in Davis, the Supreme Court recognized that Title VII caselaw remains relevant in determining what constitutes a hostile environment under Title IX. Davis supra.