The Watercooler Is Safer Than the Schoolyard: Lower Courts Dismissal of Peer Sexual Harassment Under Title IX Is Especially Failing Our Students in the “#MeToo” World

Authors

Christine Tamer

Document Type

Article

Abstract

(Excerpt)

While the term #MeToo was first coined in 2006, the movement came to the forefront of American life in October 2017 when actress Alyssa Milano tweeted, “if you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” Since then, the #MeToo movement has exposed the fact that sexual harassment remains all too common and has pushed for change in the legal procedures that have failed victims. In the #MeToo world, sexual harassment is “finally getting the public attention it has long deserved” and the public has come together to deem it—in one word—unacceptable.

While much of the #MeToo movement has focused on workplace sexual harassment, less attention has been paid to sexual harassment in schools, where—even in the #MeToo world— sexual harassment remains the norm. Although “silence break[ing]” is the theme of the #MeToo movement, when child victims of peer sexual harassment speak up, lower courts are silencing their voices before they even reach a jury. An analysis of 174 cases involving Title IX peer sexual harassment from the past three years (2017 to 2020) revealed that 58.6% of cases (102 out of 174) were dismissed at the motion to dismiss or summary judgment stage. While summary judgment is appropriate only where the evidence “is so one-sided that one party must prevail as a matter of law,” over the last three years, an astonishing 77.1% (64 out of 83) of motions for summary judgment were granted in cases involving Title IX peer-to-peer harassment. Similarly, while a 12(b)(6) motion to dismiss “is viewed with disfavor and is rarely granted,” in just the last three years, 41.7% (38 out of 91) of these motions were granted in Title IX peer-to-peer harassment cases.