The School Civil Rights Vacuum


Recent cases of pervasive sex abuse at universities, including those committed by Larry Nassar at
Michigan State University and by Jerry Sandusky at Pennsylvania State University, demonstrate the
limitations of Title IX as a tool for protecting college students. What has gone far less recognized is
that in the K–12 public school context, Title IX and other civil rights laws, including the Fourteenth
Amendment, are at least as ineffective at protecting students from sexual, physical, and verbal
abuse and harassment. Public school students rarely succeed on Fourteenth Amendment or Title
IX claims, even in some of the most egregious cases. Although these two potentially powerful civil
rights laws should protect children from and remedy these harms, there is a civil rights vacuum in
public schools.

This Article argues that courts unjustifiably limit public school liability under both the Fourteenth
Amendment and Title IX for student physical, verbal, and sexual harassment and abuse. This
jurisprudence is limited due to the courts’ misconceptions about families and schools. Taken in
the aggregate, these laws leave children, particularly low-income children, without protection and
vulnerable in school.

In making these arguments, this Article is the first to demonstrate how the courts’ evaluations
of these civil rights claims are based on misconceptions and are, therefore, unjustified. It also
exposes the collective failure of these civil rights laws to protect students. As a remedy, this
Article proposes changes to the assessment of these 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 remedying students’ harms.

About the Author

Assistant Professor, University of South Carolina School of Law.