Davis v. Monroe County Board of Education, 119 S. Ct. 1661 (1999), saw a Supreme Court engaged in high-handed policy making and legislative efforts once again. In defining when sexual harassment of students by other students violates Title IX of the Education Amendments of 1972, the Court created a new and onerous standard of liability.

Last term, in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Court had held that a student sexually harassed by a teacher could recover damages against a school district only if a school official with authority to take corrective action was notified of the harassment and if the official’s response amounted to “deliberate indifference.” Building on Gebser’s deliberate indifference standard, the 5-4 majority in Davis set an exceedingly high standard for students sexually harassed by other students to state an actionable claim against a school district under Title IX.

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