The article argues that courts unjustifiably limit public school liability under both Title IX and the Fourteenth Amendment to students who suffer sexual, physical, and verbal abuse and harassment. As a remedy, the article proposes changes to the assessment of Fourteenth Amendment and Title IX claims that abandon misconceptions, increase schools’ potential for liability, and promote the development in schools of processes for preventing, discovering, and addressing students’ harms.
Much in the field of statutory interpretation is predicated upon “interpretive dialogue” between courts and legislatures. Yet, the idea of such dialogue is often advanced as little more than a slogan; the dialogue that courts, legislators, and scholars are imagining too often goes unexamined and underspecified. This essay attempts to organize thinking about the ways participants and theorists conceive, and should conceive, of interbranch dialogue within statutory interpretation.
The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, expanded the Court’s Sixth Amendment sentencing doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt. This reading means dramatic changes for several state sentencing systems and federal sentencing as well.