Since the Davis ruling in 1999, the federal circuit courts have reviewed multiple peer sexual harassment cases. While not exactly the amount of litigation the dissent in Davis warned, there are enough cases to determine that the federal circuit courts of appeal are not entirely comfortable with the Davis standard. Although the federal circuit courts understand the general test set forth in Davis, they are struggling to define the vague terms within the Davis test. Accordingly, the courts have narrowly interpreted the Davis standard, aware of the unanswered questions. This conservative approach has resulted in very few winning student Title IX claims for student-on-student sexual harassment.
The federal circuit courts, while understanding the general Davis standard, still vary in their presentation of the essential elements of Davis liability. While some circuits focus primarily on the specifically numbered Davis elements--that Title IX liability requires that 1) the sexual harassment be so severe, pervasive, and objectively offensive that it could be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school; 2) the funding recipient had actual knowledge of the sexual harassment; and 3) the funding recipient was deliberately indifferent to the harassment n125--other circuits also include an element that the school district must have the power to exercise substantial control over both the harasser and the context in which the known harassment occurs. n126
However, how the federal circuits have defined each of these elements varies widely, with several circuits commenting on the lack of guidance in O'Connor's Davis opinion. n127 Consequently, the courts have been left to search in the pages of the Davis opinion for some guiding light. What they have been left with is a dissent in Davis that warns of a barrage of litigation that will drain taxpayer dollars and a majority opinion that attempts to persuade readers that it is sufficiently narrow to combat this misconception while still offering relief to victims.
Severe, Pervasive, and Objectively Offensive
Understanding that Davis requires sexual harassment to be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school," n128 the First, Sixth, Seventh, and Tenth Circuits have attempted to determine at what threshold sexual harassment becomes actionable sex discrimination under Title IX. While always a prong that must be satisfied, other circuits stopped short of this severe and pervasive inquiry upon finding other prongs of the Davis standard were not met. However, four circuits that have addressed the severe and pervasive prong represent the continuum on which most peer sexual harassment cases will fall: the Seventh Circuit found the conduct was not severe enough; n129 the First Circuit found that while the one incident of sexual harassment...