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WHEN EQUAL OPPORTUNITY MEETS FREEDOM OF
EXPRESSION: STUDENT-ON-STUDENT SEXUAL
HARASSMENT AND THE FIRST AMENDMENT IN SCHOOL
KAY P. KINDRED*
I. INTRODUCTION
In the spring of 1993, in Lakewood, California, a group of current
and former high school boys, mostly athletes, who called themselves
"the Spur Posse" gained extensive national media attention when nine
members of their group were arrested in connection to their "sex for
points" gang activities. 1 According to complaints filed by seven girls,
members of the Spur Posse raped and molested dozens of girls, one as
young as ten years old, in a long-running sexual competition. 2 Allega-
tions against members of the group included forcible rape and threats of
retaliation for failing to agree to sex. 3 The father of one girl allegedly
forced to have sex with a member of the gang said he had informed
school officials of the incident more than three months prior to the
boy's arrest, but an official told him it was "not a school problem."4
Three years later, national headlines focused on six-year-old
Jonathan Prevette, who kissed a girl in his first-grade class on the cheek.5
When informed of the kiss, the school's principal decided Jonathan
should be punished under the school's sexual harassment policy. 6 The
punishment consisted of an in-school suspension barring him from an
ice cream party and a warning that any more kissing would result in a
suspension. 7 Although the school district subsequently retreated from
the sexual harassment label, its initial response precipitated a media and
public furor citing political correctness run amok.8
* Kay P. Kindred is an Associate Professor of Law at the William S. Boyd School of Law,
University of Nevada, Las Vegas. J.D., Columbia University School of Law, 1980; A.B., Duke
University, 1977. I wish to thank the Editors of the North Dakota Law Review for inviting me to
participate in the symposium issue, Children and the Law.
1. David Ferrell, Spur Posse Goes on the Defensive, L.A. TIMwES, Mar. 20. 1993, at BI; Jill
Smolowe, Sex with a Scoreboard,Tmni. Apr. 5, 1993, at 41.
2. Seth Mydans, 7 of 9 California Youths Are Freed in a Case ofHaving Sex for Points, N.Y.
TM, Mar. 23, 1993. at A14.
3. Ferrell, supra note 1, atBl.
4. Somini Sengupta, Posse Not a School Issue. ParentSays He Was Told, LA. TIMES. Apr. 2,
1993, at B3.
5. First GraderMust Remember This: A Kiss Is More Than Just a Kiss, NEws & OSERVER
(Raleigh, N.C.). SepL 25, 1996, at A3.
6.Id.
7. Id.
8. John Leland, A Kiss Isn't Just a Kiss: Where Should Schools Draw the Line Between Normal
ChildhoodBehaviorand Sexual Harassment?,NswswmK, Oct. 21, 1996, at 71.
206 NORTH DAKOTA LAW REVIEW [VOL. 75: 205
What do these two incidents have in common? While the gravity

of the behavior and the response of school officials in these two inci-
dents were on opposite ends of the spectrum, both served to bring the
issue of peer sexual harassment in education to the attention of the
mainstream media and the general public. Although the actions of the
school officials in both instances were clearly unsatisfactory, their
reactions illustrate the fact that, perhaps more than with any other form
of harassment, a significant degree of confusion* and ignorance still
surrounds the issue of peer sexual harassment and a school's proper
organizational and legal response to it.
Student-on-student sexual harassment is the most rapidly emerging,
controversial, and potentially volatile issue of sexual harassment. 9 Peer
sexual harassment is a pervasive problem in elementary and secondary
schools. It begins as early as kindergarten, 10 and continues into elemen-
tary school. 1 ' In high school, peer sexual harassment seems to be the
norm rather than the exception.1 2 A 1993 nationwide survey of
seventy-nine public schools found four out of five students in grades
eight to eleven reported being sexually harassed in school.13 Females
4
are the most frequent targets, males the most frequent perpetrators.1 Of
the 1,632 students surveyed, 85% of the girls and 76% of the boys
9. See Bernice Resnick Sandier, Sexual Harassmentand the First Amendment, 3 TeMP. PoL. &
Civ. RTs. L. REV. 49,55 (1993-94).
10. For example, in one incident, a kindergarten boy was subjected to various acts of sexual
aggression by another boy in his kindergarten class, including "the display of genitals, unwelcome
touching of genitals, and acting out sexual acts and trying to get [his classmate] to participate." Doe v.
Sabine Parish Sch. Bd., 24 F. Supp.2d 655, 658 (W.D. La. 1998). In another incident, a five-year-old
boy led a female classmate into a room adjacent to the classroom, pulled down both of their pants, and
simulated intercourse. Ruth ShaI, Romper Room: Sexual Harassment-ByTots, NEW RE~unuc, Mar.
29, 1993, at 13.
11. Cheltzim Hentz was six years old when she told her mother about the foul language and lewd
comments of boys on her school bus. Amy Saltzman, It'sNot Just Teasing,U.S. News &WoRWO REP,
Dec. 6. 1993, at 73; Karen Schneider, Sexual Harassment-NoKidding, Cm. TRm., June 4, 1993, at C8.
The boys called her obscene names, made vulgar remarks about her anatomy and suggested she
perform oral sex on her father. Saltzman, supra, at 73; Schneider, supra, at C8. Both the U.S.
Department of Civil Rights and the Minnesota Department of Human Rights ruled that her school
district failed to take appropriate action to stop this behavior, making Hentz the youngest person ever
to win a sexual harassment claim against the Department of Education. Saltzman, supra, at 73;
Schneider, supra,at C8. See also Haines v. Metropolitan Gov't of Davidson City, 32 F. Supp2d 991,
995 (M.D. Tenn. 1998). In Haines, two eleven-year-old students repeatedly sexually harassed a
ten-year-old female student on school grounds. Haines,32 F. Supp.2d at 995. The plaintiff alleged
that the two boys attempted to rape, assault, and abuse her, including throwing her on the ground,
laying on top of her in a sexual manner, fondling her buttocks, breasts, and genitals, and verbally
abusing her on multiple occasions. Id.
12. Adrian Nicole Le Blanc, Harassmentat School: The Truth Is Out, SEvmn-MN, May 1993, at
134.
13. See AMtimcAN ASS'N OF UNiv. WozmNEDuc.FotND., HosruI HALLWAYS: Ts AAUW
StvEY oN SExuAL HARASSmNr iNAmmcAN ScuooLs 7 (1993) (hereinafter AAUW SURvEY]. See
also Gail Sorenson, Peer Sexual Harassment: Remedies and Guidelines Under FederalLaw, 92 Enuc.
L. RiP. 1, 1-2 (1994) (citing AAUW StmvEY, supra,at 7).
14. See generallyAAUW SuRVEy, supra note 13.
1999] STUDET ON STUDENT SEXUAL HARASSMENT 207
reported unwanted sexual advances that interfered with their lives. 15 This
harassment generally occurred for the first time between the sixth and
ninth grades. 16 Although both boys and girls reported experiencing
sexual harassment, the discrepancy between the genders increased when
frequency of harassment was considered. While 66% of females and
49% of males claimed occasional harassment, 31% of females, as op-
posed to only 18% of males, reported being harassed often.1 7
Seventy-nine percent of those students were harassed by other students.1 8
Eighty percent of public school students reported experiencing some
type of sexual harassment by the time they reached the twelfth grade.' 9
Sexual harassment can take a variety of forms. It can be verbal,
nonverbal or physical. Often it takes the form of hateful and harassing
speech. In the AAJW Survey, 76% of the girls and 56% of the boys
surveyed had been the target of sexual comments, jokes, gestures or
looks.20 Even when the harassment includes physical contact of some
nature, it is typically accompanied or preceded by verbal harassment. 2 1
While school officials and parents look for solutions to these
problems, courts are struggling with the question as well. In recent years,
the problem of student-on-student sexual harassment has found its way
into the courts as a number of students have pursued claims under Title
IX of the Education Amendments of 1972.22 Courts have wrestled with
defining the conditions under which a school district violates Title IX
and under which it will incur financial liability for failing to take action
with respect to student-on-student sexual harassment. There has been a
general confusion and a lack of consensus among the courts about the
responsibility of a school system to address the problem, as well as the
proper approach for prevention of, and protection from liability for,
student-on-student sexual harassment.
15. AAUW SuRvEY, supra note 13, at 7.

16. AAUW SwtvEy, supranote 13, at 7. One-third of children harassed by peers were in grade
six or below. Kristina Sauerwein, Survey of Students: StudentsSexual Harassmentan Issuefor Many,
ST. Louis Posr DISPATCH, Jan. 15.1996, at 2.
17. AAUW SURVEY, supra note 13, at 7.
I8. AAUW SURvEy, supra note 13, at 10-11.
19. AAUW SUvEY, supra note 13, at7.
20. AAUW SuRvEy, supra note 13 at 8.
21. Forty-two percent of the girls and 39% of the boys surveyed had been the target of sexual
rumors. AAUW SuRvEY, supranote 13. at 9. Nineteen percent of the girls and the boys surveyed had
been the target of written sexual messages or graffiti on bathroom walls; 23% of the boys and 105% of
the girls had been called "gay or lesbian when they did not want to be." AAUW SURVEY, supra note
13, at 10.
22. 20 U.S.C. § 1681 (1994). See also Dawn A. Ellison, Comment, Sexual Harassmentin
Education:A Review of StandardsforInstitutionalLiability UnderTitle LX, 75 N.C. L. REv. 2049, 2060
(1997) (commenting on the increase in the number of education-related sexual harassment claims
since the Supreme Court's decision in Franklin v. Gwinnett County PublicSchools., 503 U.S. 60
(1992)).
208 NORTH DAKOTA LAW REVIEW [VOL. 7]5: 205
While the problem of student-on-student sexual harassment has

begun to receive attention among legal academics, courts and the media,
it has focused primarily on whether schools can be held civilly liable for
the failure to remedy sexual harassment of a student by another student
or other third parties.0 2 3 Very little attention has been given to whether
there may be First Amendment limitations on a school's efforts to
control harassing speech.2 4 This article addresses that question.
Part 11 of this article examines the concept of sexual harassment and
the development of sexual harassment law. It traces the divergent paths
taken as sexual harassment law has evolved in the workplace and in the
school. Part HI focuses on the interplay of harassing speech and the
First Amendment. It begins with a review of the traditional free speech
doctrine, followed by a discussion of the specific constitutional princi-
ples carved out by the Supreme Court to govern the operation of the
First Amendment in public schools. Finally, Part IV considers the
special character of the public school and how the distinctive attributes
of public education create a unique context for the examination and
-application of sexual harassment law. I contend that the singular nature
of the public school and the established jurisprudence of free speech
rights in school permit far greater regulation of harassing speech than
would be permissible in any other setting. Such regulation is both
constitutionally appropriate and a matter of sound educational policy.
II. THE LEGAL CONTEXT OF SEXUAL HARASSMENT IN

SCHOOLS
A. WHAT is SExuAL HARAssls'r?
Sexual harassment is unwelcome sexual advances, requests for
sexual favors, and other verbal or physical conduct of a sexual nature
23. See generally. e.g., Alexandra A. Bodnar, Arming Studentsfor Battle: Amending Title IX to
Combat the Sexual Harassmentof Students by Students in Primary and Secondary School, 5 S. CAL.
REv. L. & WomE's STui. 549 (1996); Adam Michael Greenfeld, Note, Annie Get Your Gun 'Cause
Help Ain't Coming: The Needfor ConstitutionalProtectionfrom PeerAbuse in Public Schools, 43
DuKe LJ. 588 (1993); Audra Pontes, PeerSexual Harassment:Has Title IX Gone Too Far?.47 EMopY
LJ. 341 (1998); Amy M. Rubin, PeerSexual Harassment: Existing HarassmentDoctrine and its
Application to School Children,8 Hastings Women's LJ. 141 (1997).
24. Much has been written about efforts at the university level to control hateful and harassing
speech through the development of speech codes, but little emphasis has been given to First
Amendment constraints on efforts to control harassing speech at the elementary and secondary school
level. See generally,e.g., Beverly Earle & Anita Cava, The CollisionofRights and a Searchfor Limits;
Free Speech in the Academy and Freedomfrom Sexual Harassmenton Campus, 18 Bmaa.ay J. Ele.
& LAB. L. 282 (1997); Charles R. Lawrence Ilf, If He HollersLet Him Go: Racist Speech on Campus,
1990 DuKs LJ. 431; Rodney A. Smolla, Academic Freedom. Hate Speech and the Idea of a
University, 53 LAW & CoNTrw. PROBs., Summer 1990, at 195; Nadine Strossen, RegulatingRacist
Speech on Campus: A Modest Proposal?,1990 D'KncLJ. 484; Cass R. Sunstein, Liberalism, Speech
Codes, and RelatedProblems,1993 ACAD. 14.
19991 STUDENT ON STUDENT SEXUAL HARASSMENT 209
made by someone within a work or educational setting when: (1) sub-

mission to such conduct is made an explicit or implicit term or condition
of a person's employment or academic advancement; (2) submission to
or rejection of such conduct by a person is used as the basis for
employment or academic decisions affecting the person; or (3) such
conduct has the purpose or effect of unreasonably interfering with a
person's work or academic performance or creating an intimidating,
hostile, or offensive working, learning, or social environment. 2 5
Within this definition, however, there can be great variation. Thus,
sexual harassment can be verbal, nonverbal, or physical. It can occur
once or several times. Further, many different acts can constitute sexual
harassment, including: sexual innuendos or comments; jokes about sex
or about females in general; persistent sexual attention, especially when it
continues after a clear indication that it is unwanted; asking for sexual
favors; touching or brushing against another person's body; spreading
sexual rumors about a person; sexual graffiti generally or about a
specific person; making obscene gestures; or calling a person obscene or
sexually offensive names. The major characteristics of all sexual harass-
ment are that the behavior is sexual or related to the sex or gender of the
person and is unwelcome or unwanted. 2 6 The harassing behavior
typically occurs in the context of a relationship of power, in which one
person has more formal power than the other (e.g., a supervisor over an
employee, or a faculty member over a student), or more informal power
than the other (e.g., one peer over another). Sexual harassment has-
more to do with power than with sex. One person has more power than
the other and, therefore, has the capacity to intimidate.27
There are two basic theories upon which a claim of sexual harass-
ment may be based. The first, quid pro quo sexual harassment, means
something given in exchange for something else-a proposition that
conditions some employment or educational benefit upon the granting
of sexual favors.2 8 For example, in the school context, a school em-
ployee's explicitly or implicitly conditioning a student's participation in
an education program or activity or basing an educational decision, such
as a grade, on the student's submission to sexual advances or requests
25. See Equal Employment Opportunity Commission (EEOC) Guidelines. 29 C.F.R. § 1604.11(a)
(1998) [hereinafter "EEOC Guidelines']. See also OicE oP Cirr.RvMGms. U.S. D hr" oF EDuC.,
SEXuAL HARASSMEr Is Nor ACEwc (1986).
26. See discussion infra Part ILB.
27. See Bmmcs R. SANLER & ROBERT J. SHOOP, SEXUAL HARAssmENrON CAmJs: A GUmE SR
ADMInSMuToRs. FACULTY, AND STUDENTS 7 (1997). See also EDUCATOR'S Gume TO CONRoLINO
SEXUAL HAxSMmurr 15 (1993).
28. See Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57, 64-67 (1986) (recognizing quid pro
quo and hostile environment sexual harassment as actionable under Title VII).
for sexual favors would constitute quid pro quo sexual harassment. 2 9 A
single incident of quid pro quo sexual harassment constitutes a violation,
and courts hold institutions liable for such single incidents. The major
elements of quid pro quo harassment are that the sexual advances are
unwanted or unwelcome, that the harassment is sexually motivated, and
that it interferes with the targeted individual's ability to work or learn.3 0
Quid pro quo sexual harassment is more clear cut and has received more
media attention than other forms of sexual harassment, and it is thus
better understood by the public. However, it is actually the least frequent
kind of sexual harassment.
The second, more prevalent form of sexual harassment is hostile
environment sexual harassment. A hostile environment is one in which
the atmosphere is so offensive or antagonistic that it interferes with a
person's ability to work, learn or participate fully in the benefits of the
institution. 3 1 Hostile environment sexual harassment occurs far more
frequently than does quid pro quo harassment, but it is harder for people
to acknowledge as sexual harassment, particularly in the school setting,
because it includes many of the behaviors often dismissed as simply
"boys [being] boys."32
For practical purposes, any sexually-oriented atmosphere that is
intimidating or offensive to a reasonable person can be construed as
creating a hostile environment. 3 3 A hostile environment can occur even
though the victim does not suffer any loss of tangible benefits. 3 4 How-
ever, it is unlike quid pro quo harassment in that it generally requires a
consistent pattern of behavior. Unless it is very serious, a single incident
is typically insufficient to create a hostile environment. Rather, creating
a hostile environment requires behavior that is persistent, pervasive or
severe. 35 Hostile environment harassment is a less tangible, less discrete
29. See generally Office of Civil Rights (OCR) Guidance, 62 Fed. Reg. 12,034, 12,038 (1997)
[hereinafter OCR Guidance].
30. See generally id. at 12.040-41.
31. See generally discussion infra Part ILB-C.
32. See Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560,1565 (N.D. Cal. 1993), rev'd in part,
54 F.3d 1447, 1456 (9th Cir. 1995) (quoting a statement made by Richard Homrighouse, a counselor at
Kenilworth Junior High School in Petaluma, California, in response to a sexual harassment complaint
brought by a student). Doe was the first federal court decision to deal squarely with peer sexual
harassment as opposed to sexual harassment of students by teachers. Id. at 1573. In Doe, the federal
district court characterized the decision in Franklinv. Gwinnett County Pub. Sch., 503 U.S. 60 (1992),
as a hostile environment case, analogizing the peer sexual harassment in Doe to the sexual harassment
of a student by a teacher in Franklin; it ultimately concluded that a cause of action for hostile
environment sexual harassment might arise from either situation. Doe, 830 F. Supp. at 1575. See also
discussion infra Part II.C.
33. See generallyMeritorSay. Bank, 477 U.S. at 57.
34. See Harris v. Forklift Sys., Inc., 510 U.S. 17,21 (1993).
35. See MeritorSav. Bank, 477 U.S. at 67.
1999] STUDENT ON STUDENT SEXUAL HARASSMENT 211
form of sexual harassment, characterized by multiple, varied and fre-

quent occurrences of harassment over a period of time.
A hostile environment does not always involve a person with formal
power. Harassment of students by other students can create a hostile
educational environment. 36 Behaviors such as sexual innuendos, jokes,
unwanted touching, sexual obscenities, or displaying pornographic
materials, performed by students, can create a hostile learning
environment. Even behavior that is not explicitly sexual but is
demeaning, insulting, or intimidating on the basis of sex (e.g., verbal
abuse, derogatory comments about women in general, or physical
threats) can create a hostile environment. To be legally actionable,
peer-on-peer sexual harassment requires a series or pattern of incidents
serious enough to interfere with the harassed student's ability to learn or
to take part in the opportunities provided by the school. 37 Peer harass-
ment, while it does not involve formal power such as that of a teacher
over a student, involves power nonetheless. As is true of sexual harass-
ment generally, the aim of peer sexual harassment is intimidation. Thus,
a key element in defining sexual harassment is how the victim perceives
the behavior.38
B. THE DEvELOPMENT OF SEXUAL HARASSMENT LAW UNDER TrrLE IX

Recognizing that the provisions of Title VII of the Civil Rights Act
of 196439 did not fully protect women in the educational environment
from discrimination on the basis of sex, Congress enacted Title IX of the
Education Amendments of 1972.40 Title IX was specifically intended to
prevent the use of federal funds in support of discriminatory practices in
education and to provide individuals with some measure of protection
from such practices. 4 ' Congress intended Title IX to fill the gaps in Title
VI of the Civil Rights Act of 1964, which addresses discrimination based
36. See discussion infra Part ll.C.

37. See discussion infra Part .C.
38. The perspective of the victim is central to determining whether or not sexual harassment
occurred. See infra text accompanying notes 46-52. How conduct is perceived by the recipient is
often a factor of the relationship of the parties involved. See generally Jennifer Frey, Where Teasing
Ends:Students at Wilson High Weigh In on What Constitutes Sexual Harassment, WASH. POSt, May 28,
1999, at Cl (providing an interesting example of the effect of perception on the issue of sexual
harassment as it relates to high school students).
39. 42 U.S.C. § 2000e-2(a) (1994). Title VII prohibits sex discrimination in employment
practices, and thus it does not apply to students in educational institutions unless they are also employed
by the institution. let
40. 20 U.S.C. § 1681(a) (1994). Title IX reads in pertinent part, "[N]o person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving federal financial
assistance... :' Id.
41. See Franklin v. Gwinnett County Pub. Scb., 503 U.S. 60.75 (1992).
on race, color or national origin by recipients of federal funds. 4 2 Title

IX covers both employees and students and applies to virtually all
activities in the educational setting. 4 3
Sexual harassment was first recognized as a form of sex discrimina-
tion in 1976, when the District of Columbia Circuit Court held that
dismissing an employee for refusal to engage in sexual relations with her
supervisor violated Title VII.44 In 1977, the Connecticut District Court,
applying Title VII principles, acknowledged that quid pro quo sexual
harassment in educational institutions violated Title IX.45 However, the
court was not willing to permit recovery for hostile environment sexual
harassment under Title IX, finding that "[n]o judicial enforcement of
Title IX could properly extend to such imponderables as atmosphere or
vicariously experienced wrong... :-46 It was not until 1979, in Cannon
v. University of Chicago,47 that the Supreme Court recognized an im-
plied right to pursue a private cause of action for a Title IX violation. 48
Subsequently, the Court, reaffirming its view that Title IX should be
interpreted by courts to avoid the use of federal funds to support dis-
criminatory practices and to provide individuals with effective protection
from such discrimination, concluded that the statute should be accorded
69a sweep as broad as its language." 49 Finally, in Meritor Savings Bank,
F.S.B. v. Vinson,SO a 1986 employment case, the Court expanded the
definition of sexual harassment to include the concept of a hostile
environment-an environment so offensive or hostile as to interfere with a
person's ability to work.51
Although the legal concept of sexual harassment continues to
evolve, courts have consistently held that the workplace and the class-
room must be free from sexual harassment. While they are not legally
required to do so, courts have often looked to the Equal Employment
42. 42 U.S.C. §§ 2000(d)-2000(d)-7 (1994). Title Vi states: "No person in the United States
shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the
benefits of. or be subjected to discrimination under any program or activity receiving Federal financial
assistance:' Id § 2000(d). Notably, Title VI does not prohibit sex discrimination by recipients of
federal financial assistance. Id. (neglecting to include sex or gender among the list of protected
classes).
43. 20 U.S.C. § 1681(a).
44. See Williams v. Saxbe, 413 F. Supp. 654,657 (D.C. Cir. 1976).
45. Alexander v. Yale Univ., 459 F. Supp. 1, 5 (D. Conn. 1977), afdon otherground, 631 F.2d
178 (2d Cir. 1980).
46. Id. at3.
47. 441 U.S. 677 (1979).
48. Cannon v. University of Chicago. 441 U.S. 677, 705-06 (1979). "The award of relief to a
litigant who has prosecuted her own suit is not only sensible but is also fully consistent with, and in
some cases even necessary to, the orderly enforcement of the Statute.' Id.
49. North Haven Bd. of Educ. v. Bell. 456 U.S. 512.521 (1982).
50. 477 U.S. 57 (1986).
51. Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57,66 (1986).
Opportunity Commission, the agency authorized to enforce Title VII, for

guidance in interpreting questions of sexual harassment under Title
VII.52 These decisions are relevant, as courts in Title IX cases have
looked back to Title VII cases for guidance. The EEOC Guidelines
describe harassment on the basis of sex as "[u]nwelcome sexual
advances, requests for sexual favors, and other verbal or physical con-
duct of a sexual nature."5 3 Under this definition, a key element to a
finding of sexual harassment is a determination that the sexual advances
were unwelcome. However, the EEOC guidelines on Title VII do not
define "unwelcome." Thus, it was left to the courts to clarify the
meaning of "unwelcome" in this context and to distinguish between a
voluntary activity and a welcome activity.
The Supreme Court addressed this distinction in Meritor Savings
Bank In Meritor Savings Bank, the plaintiff claimed that she had
initially refused the sexual advances of her supervisor, but that she
eventually gave in and engaged in sexual relations with him out of fear
of losing her job. The Court ruled that her participation in the sexual
relationship did not establish that the relationship was truly consensual or
welcome: "The fact that the sex-related conduct was voluntary, in the
sense that the complainant was not forced to participate against her will,
is not a defense to a sexual harassment suit brought under Title VII."54
In other words, for challenged conduct to be unwelcome, one must show
that the targeted person did not seek or encourage it, and that he or she
regarded the conduct as offensive or undesirable. Current EEOC
Guidelines suggest that when there is conflicting evidence of welcome-
ness, complaints should be evaluated in light of the totality of the
circumstances on a case-by-case basis.55
In finding for the plaintiff in Meritor Savings Bank, the Court held
further that in order for sexual harassment to be actionable under Title
VII, "[The harassment] must be sufficiently severe or pervasive 'to alter
the conditions of [the victim's] employment and create an abusive
working environment."' 5 6 Thus, vulgar or offensive language, sexual
flirtation or innuendo that is trivial or merely annoying will not typically
52. EEOC Guidelines, 29 C.F.R. § 1604.11(a) (1998). Over the past ten years, most sexual
harassment cases have been decided in reliance on the EEOC Guidelines. The Supreme Court has
held that EEOC guidelines are entitled to "great deference, but that deference must have limits where
... application of the guideline would be inconsistent with an obvious Congressional intent not to reach
the employment practice in question." See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94 (1973)
(citations omitted).
53. EEOC Guidelines, 29 C.F.R. § 1604.11(a).
54. Meritor Say. Bank, 477 U.S. at 68.
55. EEOC Guidelines, 29 C.F.R. § 1604.11(b) (1998).
56. Mentor Say. Bank, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.
1982)).
constitute harassment within the meaning of Title VII.57 It is for the trier
of fact to "determine the existence of sexual harassment in light of 'the
record as a whole' and 'the totality -of the circumstances, such as the
nature of the sexual advances and the context in which the alleged
incidents occurred."58
The Meritor Savings Bank decision left several questions unan-
swered, including the degree of specificity and pervasiveness required to
establish hostile environment sexual harassment, the standard by which a
hostile environment would be determined, and the nature and extent of
the injury the plaintiff must prove in order to recover damages under
Title VII. The Court began to address some of these questions in Harris
v. Forklift Systems, InC. 5 9 In a unanimous decision, the Court held that a
plaintiff charging hostile environment sexual harassment does not have
to prove psychological harm. Title Vi's prohibition against discrimina-
tion by an employer against any individual on the basis of sex in the
terms or conditions of employment "is not limited to 'economic' or
'tangible' discrimination . .. . When the workplace is permeated with
-'discriminatory intimidation, ridicule, and insult' ... that is 'sufficiently
severe or pervasive to alter the conditions of the victim's employment,' .
. . Title VII is violated." 60 The Court drew a distinction between behav-
ior that merely "engenders offensive feelings in an employee," but does
not sufficiently affect the conditions of employment, and conduct that is
severe or pervasive enough to create an objectively hostile work
environment. 6 1
- According to Harris, the environment is measured both by an
objective standard and by the victim's subjective perception that the
environment was hostile or abusive.62 To determine if an environment is
57. Id.
58. Id. at 69 (quoting 29 C. F. R. §1604.11(b) (1985)).
59. 510 U.S. 17 (1993). Harriswas only the third sexual harassment decision issued by the
Supreme Court. The case involved a hostile environment claim brought by Teresa Harris. a manager
at an equipment rental company, Forklift Systems, Inc., arising from conduct by the company's
president over a two year period. Harris v. Forklift Sys., Inc., 510 U.S. 17, 17 (1993). The lower
court found that throughout the time Harris worked at Forklift Systems, Charles Hardy, the company
president, insulted her because of her gender and made her the target of unwanted sexual innuendos.
Id. On several occasions Hardy told Harris, in front of other employees, "You're a woman, what do
you know" and "We need a man as the rental manager ' Id. On at least one occasion, he referred to
her as "a dumb ass woman." Id. He suggested that the two of them "go to the Holiday Inn to
negotiate (Harris's] raise, and in one instance, while Harris was negotiating a deal with one of the
company's customers, asked her in the presence of other employees. "What did you do, promise the
guy... some [sex] Saturday night?" Id. After two years of similar behavior, Harris quit and sued
under Title VII. Id.
60. Id. at 2L.
61. Id. at 21-22.
62. The HarrisCourt did not directly address the question of the appropriate perspective from
which to evaluate the validity of a hostile work environment. The Court has made it clear that a
person will be held liable for sexual harassment if the actions of the person are unwelcome, and there
hostile or abusive requires looking at the totality of the circumstances,

including such factors as: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or merely
offensive; and, whether it unreasonably interferes with an employee's
work performance. 63 However, the environment need not "seriously
affect [the employee's] psychological well-being" or "[lead] to a
nervous breakdown" before Title VII comes into play.6 4
To interpret Title IX, courts have often looked to the principles
developed under Title VII. Consequently, following the Supreme
Court's lead in Meritor Savings Bank and giving effect to its earlier
directive to interpret Title IX broadly, federal courts in the mid 1980s
began to recognize hostile environment sexual harassment claims under
Title IX.65 As a result, sexual harassment by a teacher or by students that
is sufficiently severe or pervasive as to alter the conditions of the
harassed student's learning environment violates Title JX.66 A school
will be liable under Title IX for the sexual harassment of its students if:
1) a hostile environment exists in the school's programs or activities, 2)
the school has notice of the harassment, and 3) it fails to take immediate
and appropriate corrective action. 67 The school's failure to respond to
is a pattern of severe or pervasive behavior. rd. The basis for a finding that behavior is severe or
pervasive enough to constitute sexual harassment has typically been the traditional objective standard
of "reasonableness." Although the Supreme Court did not deal with this issue per se in Harris,its
holding seems to support the use of that test. See id. at 23 (stating that "whether an environment is
'hostile' or 'abusive' can be determined by looking at all of the circumstances"). Some lower court
decisions have noted that men and women often interpret the same behavior differently, and they have
applied a more gender-conscious standard as a result. See, eg., Ellison v. Brady, 924 F.2d 872, 879
(9th Cir. 1991) (suggesting that courts use a "reasonable woman" standard when evaluating an
employee's hostile environment sexual harassment complaint). It is also important to note that the
intent of the harasser is not relevant to the determination of whether or not the behavior is actionable
as sexual harassment. See id. at 880 (finding that the reasonable woman standard "classifies conduct
as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile
work environment"); Harris v. International Paper Co., 765 F. Supp. 1509, 1515 (D. Me. 1991)
(finding that "state and federal laws prohibiting... sexual harassment are wholly uninterested in the
perpetrator's intene').
63. Harris,510 U.S. at 23.
64. Id. at 21-22.
65. See generally, e.g., Lipsett v. University of Puerto Rico Sch. of Med., 864 F.2d 881 (1st Cir.
1988); Moire v. Temple University Sch. of Med., 613 F. Supp. 1360 (E.D. Pa. 1985), af d 800 F.2d
1136 (3d Cir. 1986). In 1986, the United States District Court for the Eastern District of Pennsylvania
addressed this issue in Moire v. Temple University School of Medicine. Moire, 613 F. Supp. at
1366-70. In Moire, a medical student alleged her supervisor sexually harassed her and failed her for
rebuffing his attentions. Id. at 1365. Although the court recognized the possibility of both hostile
environment and quid pro quo sexual harassment in the educational context, it found no merit to the
student's claims. rd.at 1366-70. Two years later, the First Circuit Court of Appeals weighed in on the
issue. Lipsett, 864 F.2d at 897-99. In Lipsett, a student medical resident claimed she was sexually
harassed by her supervisor and dismissed from the program due to her gender. Id. at 895. The court
in Lipsert also recognized hostile environment sexual harassment as actionable under Title IX. Id. at
900.01. The court also extended the Title VII standard of proof to plaintiff's claims under Title IX
where a plaintiff was both a student and an employee. Id.
66. See discussion infra Part II.C. (discussing cases that deal with hostile environment sexual
harassment in schools).
67. See discussion infra PartII.C.
216 NoRTH DAKOTA LAW REVIEW [VOL. 75:205
the existence of a hostile environment within its own programs or

activities permits an atmosphere of sexual discrimination to permeate the
educational program, which results in discrimination prohibited by Title
IX. However, if upon notice of hostile environment harassment, the
school takes immediate and appropriate action to remedy the harass-
ment, liability would not attach.68
Although courts had begun to recognize hostile environment sexual
harassment as cognizable under Title IX, termination of federal financial
support to the institution remained the only available remedy for a
violation. Lawsuits under Title IX were uncommon until 1992, when the
Supreme Court decided Franklin v. Gwinnett County Public Schools.69
Franklin involved teacher-student sexual harassment. 70 Christine
Franklin, a high school student, alleged among other claims that a
teacher at her school "subjected her to coercive intercourse." 7 1
Franklin further claimed that although the school knew of the abuse, it
did nothing to stop it.72 In fact, school officials were said to have
discouraged her from pressing charges.73
When it heard Franklin, the Supreme Court, applying Title VII
constructs, held that, just as a supervisor who sexually harasses a subordi-
nate discriminates on the basis of sex in violation of Title VII, a teacher
who sexually harasses a student discriminates on the basis of sex in
violation of Title IX.74 Further, and very importantly, the Court ruled
that money damages are recoverable for a violation of Title ]X.75
C. SCHOOL LABILrrY FOR PEeR SExuAL HARAssMENT: CONFLICT IN
THE COURTS
Once Franklin established that money damages are an available
remedy for intentional violations of Title IX, the number of Title IX suits
brought by employees and students against their educational institutions
for sexual discrimination increased dramatically.7 6 It is now well settled
68. Schools are not responsible under Title IX for the actions of students who harass other
students, but rather for their own failure to remedy such harassment once it has notice. See OCR
Guidance, 62 Fed. Reg. 12,034, 12,040 (1997).
69. 503 U.S. 60 (1992).
70. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60. 63-64 (1992). Franklinwas a case of
teacher-student hostile environment harassment, as there were no allegations that Christine Franklin
was subject to benefit or penalty conditioned on her submission to the teacher's advances. Id.
71. Id. at 63.
72. Id. at 63.64.
73. Id. at 64. The teacher subsequently resigned in return for the charges against him being
dropped. lt
74. Id.at 75-76.
75. Id.
76. See Ellison, supra note 22, at 2060 (commenting on the increase in the number of
education-related sexual harassment claims since the Supreme Court's decision in Franklin).
that sexual harassment of a student by a teacher or other employee of a

school receiving federal funds can render that school liable for discrimi-
nation under Title IX.77 Further, courts have consistently recognized
that Title IX liability encompasses claims of hostile environment sexual
harassment as well as quid pro quo harassment. 7 8 A more difficult issue
for the courts is whether, and under what circumstances, a school can be
held liable for failing to remedy known sexual harassment of a student
by other students. The jurisdictions that have addressed the question
have been sharply divided.
Only a few peer sexual harassment cases have reached the federal
court of appeals level, and the federal courts developed three conflicting
approaches before the Supreme Court ultimately resolved the conflict.7 9
The first approach, adopted by the Fourth, Ninth, and Tenth Circuits, as
well as a number of district courts, borrowed Title VII principles as the
closest analog to peer sexual harassment cases under Title IX. These
courts agreed that in order to establish a prima facie case of peer hostile
environment sexual harassment under Title IX, the plaintiff must, in
keeping with Title VII constructs, prove that: 1) she belongs to a
protected group; 2) she was subject to unwelcome sexual harassment; 3)
the harassment was based on sex; 4) the harassment was sufficiently
severe or pervasive to interfere with her educational environment; and, 5)
there is some basis for institutional liability. 8 0 They differed, however, in
their analysis of the fifth prong of the test, disagreeing whether both
actual and constructive notice standards apply to Title IX cases. 8 1
Other circuits took different approaches. For example, using a
variation of an equal protection analysis, the Fifth Circuit held that a
77. See, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243,249 (2d Cir. 1995);
Doe v. Sabine Parish Sch. Ed., 24 F. Supp.2d 655,664,665 (W.D. La 1998).
78. See, e.g., Seamons v. Snow, 84 F.3d 1226, 1232-33 (10th Cir. 1996); Doe v. Petaluma City
Sch. Dist., 949 F. Supp. 1415, 1426-27 (N.D. Cal. 1996); Bnmeau v. South Koxtright Cent. Sch. Dist.
935 F. Supp. 162, 175-76 (N.D.N.Y. 1996); Moire v. Temple Univ. Sch. of Med., 613 F. Supp. 1360,
1366-67 (E.D. Pa. 1985). affid, 800 F.2d. 1136 (3d Cir. 1986).
79. Davis v. Monroe County Board of Educ., 119 S.Ct. 1661, 1669 (1999).
80. Brzonkala v. Virginia Polytechnic Inst. & State Univ., 132 F.3d 949,959 (4th Cir. 1997).
81. See, e.g., Brzonkala, 132 F.3d at 958; Seamons, 84 F.3d at 1226 (providing an example of the
only Title IX peer hostile environment suit brought by a male student). In Brzonkala, two members of
the university's football team repeatedly raped plaintiff, a freshman at the university. Brzonkala, 132
F.3d at 953. Plaintiff alleged that the university knew of the attacks, yet it failed to take meaningful
action to punish the offenders or to protect her. Id. at 956. The district court dismissed the complaint
for failure to state a claim of either hostile environment or disparate impact theory under Title IX, and
the Fourth Circuit reversed. Id. at 956, 974. On the question of institutional liability, the court,
applying the actual or constructive notice standard, held that a Title IX plaintiff must show that the
institution "knew or should have known of the illegal conduct and failed to take prompt and adequate
remedial action once it was on notice." Id. at 959-60. Cf. Oona R.S. v. McCaffiey, 143 F.3d 473,475
(9th Cir. 1998) (applying the actual knowledge standard for institutional liability). See also Thomas R.
Baker, Sexual Misconduct Among Students: Title IX Court Decisions In the Aftermath of Franklinv.
Gwinnett County, 109 Eouc. L. REP. 519,522 (1996).
218 NORTH DAKOTA LAW REVIEW V 75: 205
[VoL.
school district is not liable for peer sexual harassment under Title IX
unless the school district responded to sexual harassment claims differ-
ently based on sex.8 2 The court found Title VII principles inapplicable
to peer harassment claims under Title IX because it concluded that the
key ingredient in sexual harassment-unwanted sexual requirements in
the context of a relationship of unequal power between harasser and
83
victim-is missing in the context of student-on-student harassment.
The Eleventh Circuit took yet a third approach in Davis v. Monroe
County Board of Education,8 4 holding that Title IX does not impose
liability on a school for failure to prevent student-on-student sexual
harassment.8 5 After an exhaustive search of Title IX's legislative history,
the court concluded that Congress enacted Title IX under its spending
power, which in effect offers to form a contract with the recipient of
federal funds.8 6 This contrasted with Title VII, which was enacted under
the Fourteenth Amendment.8 7 The court further found that to ensure
the voluntariness of participation in federal programs, Congress must
give potential recipients unambiguous notice of the conditions they
assume when they accept federal funds.88 Finding that Congress gave no
clear notice under Title IX that schools were accepting responsibility to
remedy student-inflicted sexual harassment when they accepted federal
funds, the court held liability could not be imposed on a school district
89
for peer sexual harassment of its students.
The Supreme Court resolved the issue this spring, ruling in a 5-to-4
decision that schools may be liable in damages for failing to stop severe
and pervasive peer inflicted sexual harassment. 90 However, proving
82. Rowisky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1016 (Sth Cir.) cert.denied, 519 U.S. 861
(1996) (finding that "a school district might violate Title IX if it treats sexual harassment of boys more
seriously than sexual harassment of girls, or even if turns a blind eye toward sexual harassment of girls
while addressing assaults that harassed boys").
83. Id. at 1011 n.ll.
84. 120 F.3d 1390 (1lth Cir. 1997) (en banc), cert. granted,119 S. Ct. 29 (1998).
85. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (l1th Cir. 1997) (en bane), cert.
granted, 119 S. Ct. 29 (1998). Plaintiff alleged on behalf of her daughter that a male fifth grade student
had sexually harassed the daughter over a period of six months. Id. at 1393. The behavior included
repeatedly fondling the girl's breast and genitals, rubbing against her in a sexual manner, and making
offensive sexual remarks to her. Id. Plaintiff alleged that both the girl and her mother reported the
incidents to the girl's teacher and principal, yet school officials never removed or disciplined the boy
in any manner. Id. Plaintiff alleged that the school knew of the harassment yet failed to take any
meaningful action to stop it, leading to a deterioration of her daughter's mental and emotional health
and hampering her ability to take advantage of her education. Id. at 1394. The harassment ended
only after the girl's mother filed criminal charges of sexual battery against the boy, to which he pled
guilty. See also Davis v. Monroe County Bd. ofEduna, 74 F3d. 1186,1188-89 (11th Cir.), vacated,91
F.3d. 1418 (lth Cir. 1996), revid en banc 120 F.3d. 1390 (1 th Cir. 1997).
86. Id. at 1399.
87. Id. at 1400 n.13.
88. Id. at 1406.
89. See Davis. 120 F.3d at 1397-1401.
90. Davis v. Monroe County Bd. of Educ., 119 S.CL 1661, 1669 (1999).
1999] STUDENT ON STUDENT SBXUAL HARASSMENT 219
liability will still be difficult under the ruling. Students filing sexual
harassment claims against their school districts must show that a school
official actually knew of the harassment and acted with deliberate
indifference to it.91 Further, the Court held that the harassment must be
so severe and pervasive that it effectively bars the victim's access to an
educational opportunity or benefit.9 2 It emphasized that damages are
not available for simple acts of teasing and name-calling, even where
such comments target differences in gender.9 3 Further refining the
contours of its decision, the Court noted that the Title IX requirement
that actionable discrimination must occur under an educational program
or activity "suggests that the behavior be serious enough to have the
systemic effect of denying the victim equal access to [an educational
opportunity]," thereby limiting private damages for. peer sexual
harassment to cases having a broad systemic effect on the educational
4
program. 9
Echoing sentiments expressed by some lower courts, 95 the Court
also noted that the petitioner in Davis was not attempting to hold the
school board liable for actions of the student harasser, but rather for its
own decision to remain idle in the face of known student-on-student
harassment in its school. 96 This was an extension of its recent decision in
a teacher-student hostile environment sexual harassment case, in which it
held that damages may not be recovered for teacher-student sexual
harassment under Title IX unless a school district official with authority
to institute corrective measures on the district's behalf has actual notice
of, and is deliberately indifferent to, the teacher's misconduct.9 7 Thus, a
damages remedy will not lie against a school district for student sexual
harassment under Title IX, whether the harassment is perpetrated by a
91. Id. at 1674.

92. Id. at 1675.
93. Id.
94. Id. at 1676.
95. See, e.g., Brzonkala v. Virginia Polytechnic Inst. & State Univ., 132 F.3d 949, 958 (4th Cir.
1997).
96. Davis, 119 S.Ct. at 1670.
97. Gebser v. Lago Vista Indep. Sch. Dist. 118 S. Ct. 1989, 1999 (1998) Petitioner Gebser, a
high school student in respondent Lago Vista School District, had a sexual relationship with a teacher.
Id. at 1993. They often had sexual intercourse during class time, though never on school property. Id.
Gebser never reported the relationship or complained to school officials. Id. She later said at trial that
she realized the teacher's conduct was inappropriate but was uncertain how to react. Id. During this
time, the school district did not have an official sexual harassment policy or formal procedures for
filing sexual harassment complaints. Id. It was not until Gebser and the teacher were discovered
having sex in a car by a police officer that school officials learned of the relationship. Id. The school
district terminated his employment and the State subsequently revoked his teaching license. Id. The
teacher was also criminally prosecuted. Id. Petitioner filed suit against Lago Vista School District
under Title IX. Id. Although Gebser involved a teacher's sexual harassment of a student, it was a
hostile environment sexual harassment case, as there was no benefit or penalty conditioned on the
student's acquiescence or participation in the sexual relationship.
220 NORTH DAKOTA LAW REVIE [VOL. '75:
7 205
teacher or by another student, unless a district official has actual knowl-

ddge of the harassment and fails to respond adequately.
The actual notice requirement of the Gebser and Davis decisions
may have an interesting unintended consequence, depending upon the
age of the harassment victim. The Office of Civil Rights has suggested
that the age and sex of the harasser and the victim are relevant in assess-
ing and responding to sexual harassment claims. 9 8 If institutional
liability under Title IX is conditioned on the victim's reporting incidents
of sexual harassment, a young child with limited experience on which to
base a judgment as to what constitutes appropriate or inappropriate
behavior may be less likely to report, or less capable of reporting,
incidents of harassment, and, as a result, young children may be afforded
less protection against harassment than older students. 9 9 This is particu-
larly likely when a teacher, who by virtue of his or her position has
authority over students, harasses a young child. 100 It is not impossible
to imagine a similar effect in somi cases of peer harassment as wel,
regardless of the lack of actual authority. 10 1
In Davis, as in Gebser, the Supreme Court declined to impose
liability on the school district under Title IX on the basis of constructive
notice or agency principles.l 0 2 It also declined to employ a negligence
theory, which was based on the school's failure to react to harassment of
which it knew or should have known.t 03 Noting the textual differences
between Title IX and Title VII, as well as the express remedial scheme
under Title IX, which is predicated on notice to an appropriate person
and an opportunity to rectify any violation, the Court concluded that an
implied damages remedy should be fashioned along the same lines.
Consequently, recovery in damages will not lie under Title IX unless an
98. OCR Guidance, 62 Fed. Reg. 12,034, 12,034 (1997) (stating that "age is relevant in
determining whether sexual harassment occurred in the first instance, as well as in determining the
appropriate response by the school ... age is relevant in determining whether a student welcomed the
conduct and in determining whether the conduct was severe, persistent, or pervasive").
99. Id. at 12,040. "If younger children are involved, it may be necessary to determine the
degree to which they are able to recognize that certain sexual conduct is conduct to which they can or
should reasonably object and the degree to which they can articulate an objection." Id. See also X v.
Fremont County Sch. Dist. No. 25, No. 96-8065, 1998 WL 704692, at **3 (10th Cir. 1998)
(unpublished disposition) (Lucero. Circuit Judge, concurring) (finding that when "a harassing teacher
exploits his or her authority as a teacher to effect the harassment... a very young child may have
little sense that the offensive conduct is abnormal or in any way inappropriate, or that there is anyone
to whom he or she can turn to report ie').
100. See X v. FremontCounty Sch. Dist. No. 25, 1998 WL 704692, at **3.
101. Even when certain behavior makes them uncomfortable, young children may have
difficulty discerning the appropriate from the inappropriate. See* e.g., Schneider, supra note 11, atC8.
For example, seven year old Cheltzie Hentz, in recounting vulgar remarks made to her by boys on the
school bus over an extended period of time, stated, 'That must be the way boys talk to girls, huh,
Mom?" Schneider, supra note 11, at C8.
102. Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661, 1671 (1999).
103. Id.
official, who has authority to take remedial action, has actual knowledge
of the harassment and fails to respond adequately.104 A school district's
damages liability is, therefore, limited to instances in which it exercises
substantial control over both the harasser and the context in which the
harassment occurs. "105 Those conditions are most clearly satisfied when
the offender is an employee of the district. However, if
student-on-student harassment occurs during school hours and on
school grounds, the district presumably retains substantial control over
both the context of the harassment and the harasser. As a result, a school
district may be liable if it is deliberately indifferent to the known acts of
a student harasser under its disciplinary authority.t06
The Court noted specifically that its holding in Davis does not mean
that schools can avoid liability only by completely purging all actionable
peer harassment from their hallways. Nor must schools impose any
particular type of judicially-mandated disciplinary action.1 0 7 Rather,
school administrators continue to enjoy flexibility in formulating
disciplinary responses on a case-by-case basis. 108 They will be deemed
"deliberately indifferent" within the meaning of the Court's ruling only
where the response, or lack thereof, is "clearly unreasonable in light of
the known circumstances." 10 9
The dimensions of a peer sexual harassment claim and
the parame-
ters for assessing institutional liability under Title IX are not the only
issues confronting a school district in the context of student-on-student
sexual harassment. School districts face yet another unanswered ques-
tion: While attempting to prevent or eliminate a student-created hostile
environment under Title IX, might a school run the risk of violating First
Amendment free speech rights? 110
I. HARASSING SPEECH AND THE FIRST AMENDMENT

As schools grapple with the problem of peer-on-peer sexual harass-
ment and attempt to develop or revise harassment policies in light of
recent administrative and judicial guidance, several important First
104. Id.
105. Id.
106. Id.
107. Id. at 1673-74.
108. Id. The Davis Court remanded the petitioner's claim in order that the school's response
might be assessed in light of this standard. Given the allegations of an egregious lack of virtually any
response by the school in Davis, the Court was able to avoid providing further guidance or insight as to
what action, short of doing nothing, would constitute a "clearly unreasonable" response. Id at 1676.
109. Id. at 1674.
110. See OCR Guidance, 62 Fed. Reg. 12,034, 12,038 (1997) (stating that "[i]f the alleged
harassment involves issues of speech or expression, a school's obligations may be affected by the
application of Fiust Amendment principles").
Amendment issues arise. The First Amendment of the United States

Constitution states: "Congress shall make no law respecting an establish-
ment of religion or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press ....,,111 Despite this broad
language, freedom of speech is not absolute. The First Amendment does
not shield all speech from legal regulation. Whether speech is protected
by the First Amendment depends upon the content of the speech.t 12
Speech may be regulated on the basis of content if it falls within some
3
judicially recognized exception to First Amendment protection.11
In the context of sexual harassment, the important issue is differen-
tiating prohibited harassing speech from protected speech. 114 This raises
several questions: What limitations does the First Amendment impose on
an educational institution's efforts to eliminate sexual harassment? How
can speech that is otherwise protected be used to prove a case of peer
harassment under Title IX without violating free speech principles? In
cases of sexual harassment, speech and action often co-exist. 1 1 5 The
majority of school sexual harassment cases thus far have addressed
clearly flagrant conduct, meaning the problem of separating speech
from conduct has not arisen. 11 6 Physical conduct that may legitimately
111. U.S. CoNsr. amend. L

112. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (discussing content as
key in drawing the line between permissible advocacy and impermissible incitement of crime,
between fighting words and non-fighting words, and between permissible news stories and
impermissible disclosures of confidential government information). Even within the sphere of
protected speech, "a difference in content may require a different governmental response." Id.
113. See Bose Corporation v. Consumers Union of United States, Inc. 466 U.S. 485,504 & n.22
(1984).
The Fust Amendment presupposes that the freedom to speak one's mind is not only an
aspect of individual liberty-and thus a good unto itself-but also essential to the common
quest for truth and vitality of society as a whole... Nevertheless, there are categories of
communication and certain special utterances to which the majestic protection of the
First Amendment does not extend because they 'are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality.' ...
Libelous speech has been held to constitute one such category.
Id. Other categories of unprotected speech include incitement to riot, obscenity, and child
pornography. See New York v. Ferber, 458 U.S. 747,765 (1982) (refusing to find child pornography
to be a protected category of speech); Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969) (finding that
words that are likely to incite a riot are not to be given Frst Amendment protection); Roth v. United
States, 354 U.S. 476. 484-85 (1957) (finding that obscene speech is not protected by the First
Amendment).
114. See, e.g., Schneider supra note 11, at C8. In response to the sexual harassment lawsuit
against the school district, the Eden Prairie, Minnesota superintendent of schools commented, "inhere
are some [First] Amendment rights that come into this. At what point does language in a culture
become sexual harassment?" Schneider, supra note 11, at C8.
115. See Sorenson, supranote 13, at 11.
116. See IGngsley R. Browne, Tie VII as Censorship:Hostile Environment Harassmentand the
FirstAmendment, 52 Omo ST.L. 481, 483 n.16 (1991). In his comprehensive survey of Title VII
hostile environment sexual harassment cases, Browne notes that only one case. Robinson v.
constitute a crime is generally not protected by the First Amendment

even when it conveys a message. But what of harassing speech not
coupled with otherwise punishable conduct? As noted by the Office of
Civil Rights, "In cases of alleged harassment, the protections of the First
Amendment must be considered if issues of speech or expression are
involved." 1 17
The following discussion reviews Supreme Court decisions related
to the interaction between the First Amendment and potentially harassing
speech. The first section of the discussion reviews decisions outside the
school context. The second tracks First Amendment decisions in the
school context. The discussion shows that the Court's decisions in school
cases are far more restrictive of speech than are its more general deci-
sions, allowing school officials more authority to regulate harassing
speech by students than the government .has to regulate such speech by
the general population.
A. OVERvIEw oF TRADITIONAL From SPEECH DocnuNE

The First Amendment exception most relevant to a discussion of
speech in the context of hostile environment sexual harassment is the
fighting words doctrine. The Supreme Court created the "fighting
words" exception in Chaplinsky v. New Hampshire.1 18 The Court
defined fighting words as those "which by their very utterance inflict
injury or tend to incite an immediate breach of the peace" and thus are
outside the protection of the First Amendment.1 1 9 Holding fighting
words wholly outside the protection of the First Amendment, the Court
observed that "such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit
Jacksonville Shipyards, Inc. was based entirely on verbal conduct. See it (citing Robinson v.
Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991)). This is also true of hostile
environment cases under Title IX: The majority have involved the harassment of a student by a
teacher, usually coupled with molestation or other sexually abusive behavior. However, even those
cases of student-on-student harassment that have reached the courts have included some physical
touching or other conduct in addition to harassing speech. It is easier to find prohibited sexual
harassment, not to mention sexual battery, where speech elements are accompanied by physical
touching. See, e.g., Davis, 119 S.Ct. at 1667 (explaining that "[t]he string of incidents finally ended in
mid-May when G.F. was charged with, and pleaded guilty to, sexual battery for his misconduce').
Even sexually derogatory graffiti on a bathroom wall can be punished as vandalism, independent of
the speech involved. See generally,Sorenson, supra note 13, at 8.
117. OCR Guidance, 62 Fed. Reg. 12.034, 12,045 (1997).
118. 315 U.S. 568 (1942). Chaplinsky was arrested while distributing Jehovah's Witness
literature and denouncing organized religion. Chaplinsky v. New Hampshire, 315 U.S. 568, 569-70
(1942). He had been warned that, though he was within Is rights, his actions were disrupting the
crowd. Id. After a disturbance occurred, as he was being taken to the police station, Chaplinsky
called the marshal a "damned fascist" and described the city government as "(fjascist or agents of
fascists." rd. He was convicted of violating a state statute that proscribed public insults that were
"offensive, derisive, and annoying:' Md The Supreme Court affirmed his conviction. Id.
119. Id. at 572.
224 NORTH DAKOTA LAW REvmw [VOL. 75: 205
that may be derived from them is clearly outweighed by the social

interest in order and morality."' 2 0
The Supreme Court began to narrow the fighting words doctrine
with its decision in Cohen v. California,121the leading case dealing with
the public utterance of offensive expletives.1 22 Cohen wore a jacket
bearing the words "Fuck the Draft" into a courthouse where others were
present. 12 3 He was convicted of "'maliciously and willfully disturb[ing]
the peace or quiet of any neighborhood or person... by... offensive
conduct.124 In a 5-to-4 decision, the Supreme Court reversed Cohen's
conviction. Justice Harlan, writing for the majority, noted that the
conviction rested upon the "asserted offensiveness of the words Cohen
used to convey his message," not upon the underlying message or any
separately identifiable conduct. 12 5 Thus, the conviction rested solely
upon speech. With this as a crucial factor, the Court rejected the state's
arguments justifying regulating offensive speech. 126
The Court narrowed the fighting words exception further a year
later in Gooding v. Wilson,127 another case involving profane words.128
Wilson was convicted under a state statute which forbade the use "[t]o or
of another, and in his presence. .. opprobrious words or abusive lan-
guage, tending to cause a breach of the peace." 12 9 The Supreme Court
reversed the conviction, noting briefly that the narrow holding in
Chaplinsky only prohibited fighting words that "have a direct tendency
to cause acts of violence by the person to whom, individually, the remark
is addressed."130 The Court also emphasized that the statute, as
120. Id. Importantly, the Court in Chaplinsky did not require the state to demonstrate imminent
violence, as it accepted the legislative assumption that a connection exists between abusive language
and the eruption of violence.
121. 403 U.S. 15 (1971).
122. See generally Cohen v. California, 403 U.S. 15 (1971).
123. Id. at 16.
124. Id.
125. Id. at 18.
126. The first of these arguments, preserving "an appropriately decorous atmosphere in the
courthouse," failed because the statute contained no language limiting its application to certain
designated places. lId at 20. Further, this speech did not fall within one of the categories previously
exempted from F'ust Amendment protection. Id. It was not obscenity, since such expression "must be,
in some significant way, erotic." Id. It also did not constitute "fighting words," as it was not
"'directed to the person of the hearer'" and "[nlo individual actually or likely to be present could
reasonably have regarded the words. . . as a direct personal insult.. . [or] was in fact violently
aroused... :'Id. Absent an element of personal abuse or the likelihood of immediate violent
retaliation, the words were protected against regulation as fighting words. Id.
127. 405 U.S. 518 (1972).
128. See generally Gooding v. Wilson, 405 U.S. 518 (1972). Wilson was arrested when he and
other protesters blocked the entrance to a government building, and Wilson said to an arresting
officer, "White son of a bitch, I'll kill you ... ; you son of a bitch, I'll choke you to death:' Id. at 520.
129. Id. at 519.
130. Id. at 524.
construed by the state courts, was vague and overly broad because it was
not limited to fighting words.13 1
In subsequent decisions, the Court used Cohen and Gooding as the
basis for reversing convictions based on offensive langage. 13 2 Notably,
it was able to do so without reaching the issue of whether the language fit
within the category of fighting words. 133 Because of these decisions,
some commentators have suggested that the Chaplinsky fighting words
exception has been so effectively narrowed as to question its continued
13 4
relevance.
Nevertheless, the Supreme Court revisited the fighting words doc-
trine in 1992, when it decided R.A.V. v. City of St. Paul.13 5 In R.A.V.,
Robert Viktora and several other St. Paul, Minnesota teens burned a
36
cross made of chair legs inside the fenced yard of a black family.1
They were convicted of violating the city's bias motivated crime ordi-
nance, which read:
Whoever places on public or private property a symbol, object,
appellation, characterization, or graffiti, including, but not
limited to a burning cross or Nazi swastika, which one knows or
has reasonable grounds to know arouses anger, alarm, or
resentment in others on the basis of race, color, creed, religion
or gender commits disorderly conduct and shall be guilty of a
misdemeanor. 13 7
The Minnesota Supreme Court upheld the conviction on the
grounds that the reach of 'the statute was limited to "fighting words"
within the meaning of Chaplinsky.138 The United States Supreme Court
reversed.13 9 Although the decision to overturn the conviction was unani-
mous, the justices were sharply divided in their reasoning. 140
Justice Scalia wrote the majority opinion. Accepting the Minnesota
Supreme Court's narrow construction of the statute, Scalia nonetheless
concluded that the ordinance was facially unconstitutional in that it
prohibited otherwise permissible speech solely on the basis of the
subjects the speech addressed.14 1 In Scalia's view, the ordinance applied
131. Id. at 521-22.

132. See generallyLewis v. City of New Orleans, 415 U.S. 130 (1974); Brown v. Oklahoma, 408
U.S. 914 (1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972).
133. See supranote 132.
134. See, e.g., Strossen, supra note 24, at 510.
135. 505 U.S. 377 (1992).
136. R.A.V. v. City of St. Paul, 505 U.S. 377,379 (1992).
137. Id. at 380.
138. Id. at 380-81.
139. Id. at 381.
140. See generallyId.
141. Id. at 381.
226 NORTH DAKOTA LAW REVIEW [VoL. 75: 205
only to "fighting words" that insult, or provoke violence "on the basis
of race, color, creed, religion, or gender," whereas "[d]isplays contain-
ig abusive invective, no matter how vicious or severe, [were] permissible
unless they [were] addressed to one of the disfavored topics.'142 Thus,
according to Scalia, the ordinance went beyond content-based classifica-
tions of speech, instead classifying speech on the basis of viewpoint. 143
Therefore, the statute was not a prohibition of fighting words generally,
but rather a more specific prohibition of only those fighting words that
contained messages of bias-motivated hatred. 144 Such classifications, the
majority held, made the law unconstitutional. 14 5 Justices White and
Stevens each filed concurring opinions in which they agreed that the
statute was unconstitutional, but they based their decision on reasons
different from both the majority and each other.146
Importantly, the R.A.V. majority alluded that regulation of sexually
harassing speech, speech actionable under Title VII, may pass constitu-
tional muster. It indicated in dictum that content-defined restrictions on
a certain subcategory of proscribable speech that may have "secondary
effects," such as that at issue in the context of workplace sexual harass-
ment, may be "justified without reference to the content of the . . .
speech." 147 This is relevant because many Workplace hostile environ-
ment cases involve the use of words or terms thit, while they might
demean or offend, are not fighting words per se, are not defamatory, and
are not plainly obscene. 14 8 Whatever R.A.V. means for workplace
142. rd.at 391.

143. Id. According to Scalia, displays containing some words, such as racial epithets, would be
prohibited to proponents of all views, while "fighting words" that do not themselves invoke race, color,
creed, religion, or gender could be used by persons arguing in favor of equality and tolerance, but not
by those speakers' opponents. Id.
144. Id. at 392.
145. Id. at 392-93.
146. According to Justice White, the ordinance reached unprotected conduct, but also punished
expressive activity that "causes only hurt feelings, offense, or resentment," and thus it was "fatally
overbroad and invalid." Id. at 414. Justice Stevens agreed that the ordinance was unconstitutionally
overbroad, but took issue with the absolutism of both the majority and Justice White. Id. at 416. He
decried the majority's categorical approach, which he argued allowed it to assume the ordinance
proscribed only fighting words, yet still hold the ordinance invalid because it imposed a content-based
regulation on expressive activity. Id. at 436. Stevens argued that this approach meant that within a
proscribable category of speech, government must either proscribe all speech or no speech - a
position at odds with established First Amendment jurisprudence. Id. at 419. He also rejected Justice
White's conclusion that all fighting words are unprotected, arguing instead that regulations of speech
should be considered in light of the content and context of the speech and the nature and scope of the
restriction. Id. at 428.
147. Id. at 389 (citations omitted). Thus, for example "sexually derogatory 'fighting words,'
among other words, may produce a violation of Title VII's general prohibition against sexual
discrimination in employment practices .... Where the government does not target conduct on the
basis of its expressive content, acts are not shielded from regulation merely because they express a
discriminatory idea or philosophy:' Id
148. See generally Miller v. California, 413 U.S. 15, 24 (1973) (establishing ihe test for
obscenity). A debate has emerged among some scholars as to the constitutionality of Title Vll's
1999] STUDENT ON STUDENT SExUAL HARASSMENT 227
harassment, however, it is largely inapposite to the question of

student-on-student harassment in public schools. 149 This is because the
Supreme Court has developed a different, and more restrictive, set of
rules for First Amendment school cases.
B. THE FIRST AMENDMENT IN ScHooLs

Free speech rights apply in the classroom and in all other education
programs and activities of public schools.150 First Amendment rights
apply to the speech of both students and teachers.lSl However, the
contours of free speech doctrine have been differently defined in the
school context. 152
The Supreme Court laid out some foundational principles to govern
the conflict between student speech and the responsibility of school
authorities in the pivotal case of Tinker v. Des Moines Independent
Community School District.15 3 In December 1965, a group of adults and
students decided to publicize their objections to the Vietnam War by
restrictions on harassing workplace speech that does not clearly fit within one of those previously
defined categories of exception. Several scholars take the position that most or all restrictions on
harassing speech under Title VI violate the First Amendment. See generally, e.g., Browne, supra
note 116, at 510-31; Jules B. Gerard, The FirstAmendment in a Hostile Environment: A Primer on
Free Speech and Sexual Harassment, 68 NoTR DAME L. Rav. 1003 (1993); Nadine Strossen,
Regulating Workplace Sexual Harassmentand Upholdingthe FirstAmendment: Avoiding a Collision.
37 VILL. L. Rev. 757 (1992); Eugene Volokh, Freedom of Speech and Workplace Harassment, 39
UCLA L. Rev. 1791 (1992). A number of other scholars have, on the other hand, advocated the
constitutionality of workplace harassment law. See generally, e.g., Deborah Epstein, Can a "Dumb
Ass Woman" Achieve Equality in the Workplace? Running the Gauntlet of Hostile Environment
HarassingSpeech, 84 GEo. L.J. 399 (1996); Suzanne Sangree, Title VII ProhibitionsAgainstHostile
Environment Sexual Harassmentand the FirstAmendment: No Collision in Sight. 47 RrrGmEs L. Rav.
461 (1995); Marcy Strauss, Sexist Speech in the Workplace, 25 HARv. C.R.-C.L. L. REV. 1 (1990).
149. A framework for balancing freedom of expression and equal opportunity for adult sexual
harassment does not work for children, who have traditionally received specialized attention and
treatment under the law. It is well istablished that the state's authority over children's activities is
broader than over like actions of adults. See generally Prince v. Massachusetts 321 U.S. 158 (1944).
150. OCR Guidance, 62 Fed. Reg. 12,034, 12045 (1997).
151. Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969) (finding that
neither students nor teachers shed their constitutional rights to freedom of expression at the
schoolhouse gate).
152. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) (stating that "constitutional
rights of students in the public schools 'are not automatically coextensive with the rights of adults in
other settings'"). Though Title IX applies to all schools receiving federal funds, including colleges
and universities, the treatment of student speech rights at the college level differs sharply from that
given to the speech of elementary and secondary school students. See infra text accompanying notes
152-58. The discussion in this article of the impact of speech doctrine on hostile environment sexual
harassment is limited to elementary and secondary schools.
153. 393 U.S. 503 (1969). The Supreme Court had considered the First Amendment rights of
public school students in some earlier cases. For example, in West VirginiaState Boardof Education
v. Barnette, the Court held that a state law requiring students to recite the pledge of allegiance to the
American flag violated the First Amendment. See West Virginia State Bd. of Educ. v. Bamette, 319
U.S. 624, 643 (1943). Nonetheless, Tinker is considered the defining case of the modem ea of free
speech doctrine in the school context and the first occasion in which the Supreme Court ruled on the
issue of free speech under the First Amendment as it relates to students in elementary and secondary
schools. See generally, Richard S. Vacca & H.C. Hudgins, Jr., Student Speech and the First
Amendment: The Courts Operationalizethe Notion ofAssaultive Speech, 89 EDuC. L. REP. 1,2 (1994).
228 NORTH DAKOTA LAW REvmw .[VOL. 75: 205
wearing black armbands during the holiday season. 154 Fifteen-year-old

John Tinker, his thirteen-year-old sister Mary Beth, and sixteen-year-old
Christopher Eckhart, as well as their parents, decided to participate in the
protest.ss The principals of the Des Moines public schools became
aware of the plan and adopted a policy that any student wearing an
armband to school would be asked to remove it; if the student refused,
he or she would be suspended until willing to return without the
armband.15 6 When the Tinker children and Eckhart wore the armbands
to school, they were suspended.l 5 7 They did not return until after New
Year's Day, after the planned period for wearing the armbands had
expired.SS Through their parents, the children sought an injunction in
federal district court prohibiting school officials from disciplining
them. 159 The district court held that wearing an armband to express a
political viewpoint was a means of protected expression under the First
Amendment.160 It nonetheless upheld the school policy because it was
not unreasonable to anticipate that the wearing of armbands might create
some type of disturbance. 16 1 On appeal, the Eighth Circuit affirmed the
.decision without opinion.1 62 The Supreme Court reversed, recognizing
that the students' political expression-the wearing of armbands in the
circumstances of this case-was "closely akin to 'pure speech."' 163
The Tinker Court recognized that, both in and out of school, stu-
dents are "persons" under the Constitution, possessed with fundamental
rights states must respect. 16 4 As such, absent constitutionally valid
reasons to regulate their speech, students are entitled to the freedom to
express their view. 16 5 However, the Court also recognized that schools
have a legitimate interest in maintaining order and discipline.1 6 6 Striking
a balance between the students' right of free expression and the school's
need to maintain order, the Court determined that student conduct that
for any reason materially disrupts class work or involves substantial
154. Tinkerv. Des Moines Indep. Community Sch. Dist., 393 U.S. 503,504 (1969).
155. Id.
156. Id.
157. Id.
158. Id.
159. Id.
160. l1. at508.
161. Id.
162. Id. at 505.
163. Id. The Court determined that "the wearing of arrnbands in the circumstances of this case
was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was
closely akin to 'pure speech' which, we have repeatedly held, is entitled to comprehensive protection
under the irst Amendment." Id at 505-06.
164. Id. at511.
165. Id.
166. Id. at 513.
19991 STUDENT ON STUDENT SEXUAL -ARASSMENT 229
disorder or an invasion of the rights of others is not immunized by the

protections of the First Amendment. 16 7 This standard has come to be
known as the "substantial disruption" test.16 8
Under this test, school officials must have more of a basis for
regulating speech than a desire to avoid the discomfort and unpleasant-
ness of an unpopular viewpoint. 1 6 9 Regulation of speech is only
permissible when the speech or expressive conduct would substantially
disrupt or interfere with the work of the school or the rights of other
students.17 0 If the expression disrupts the school environment, officials
have broad latitude to impose discipline to restore order. Otherwise,
deference is to be given to the students' rights of free expression.
The next major milestone in the development of student speech
171
rights was Bethel School District No. 403 v. Fraser, in which the
Supreme Court upheld a school's decision to discipline a student for a
"lewd and indecent" speech at a school assembly.17 2 The Court did not
rely on the substantial disruption test of Tinker. Rather, it distinguished
the political message of the armbands in Tinker from the sexual content
of Fraser's speech, which the Court concluded was not intended to
espouse a political perspective. 17 3 Emphasizing the role of public
schools in "prepar[ing] pupils for citizenship in the Republic" and
"inculcat[ing] the habits and manners of civility," the Court determined
that it is an appropriate function of public school education to prohibit
the use of vulgar and offensive language in public discourse. 17 4 The
authority to determine the appropriate manner of speech in the class-
room or in a school assembly properly rests with the school board.175
167. Id.
168. Id. at 506.
169. Id. at508-14
170. Id.
171. 478 U.S. 675 (1986).
172. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). Matthew Fraser, a student at
Bethel High School, delivered a nominating speech for a fellow student, a candidate for student
government, at a school assembly. Id. at 675. The assembly was held during school hours as part of a
school-sponsored program in self-government and was attended by approximately 600 students, many
of whom were fourteen years old. Id. The entire speech consisted of elaborate sexual innuendo and
metaphors. Id. During the speech many of the students hooted and yelled, while others seemed
confused and embarrassed. Id. Fraser was suspended for three days for violation of the school's
"disruptive conduct" rule which included a provision prohibiting the use of obscene or profane
language or gestures. Id. He was also told his name would be removed from a list of candidates for
graduation speakers. Id. Fraser's father filed suit on his behalf, alleging that the sanctions violated the
First Amendment and that the rule was unconstitutionally vague and overbroad. Id. The District Court
agreed. Id. It enjoined the school from preventing Fraser from speaking at graduation and awarded
monetary relief. Id. at 675-76. The Ninth Circuit Court of Appeals affirmed, holding the speech was
indistinguishable from the armband protest in 7inker. Id. at 677-80. The Supreme Court reversed. Id.
173. rd. at 680-82.
174. ld. at681.
175. 1d at 683.
The Court concluded that nothing in the Constitution prohibits school

officials from insisting that certain modes of expression are inappropri-
ate and subject to sanction. 176 To"construe the First Amendment other-
wise, the Court said, "would undermine the school's basic educational
177
mission."
While the emphasis of the Tinker Court was on the disruptive effect
of the student speech, the FraserCourt shifted away from the effect of
the speech and focused largely on the content of the expression. 17 8
Two years later, in Hazelwood School Districtv. Kuhlmeier,17 9 the Court
again declined to apply the substantial disruption test to a school speech
controversy. 18 0 Hazelwood involved the censorship of articles in a
student newspaper. 181 Rather than employing the substantial disruption
test, the Court employed a forum analysis and concluded that schools are
not public fora.18 2 The Court found that traditional public fora are
176. Id.
177. Id. at 685.
178. Although some disturbance did occur as a result of Fraser's speech, such as the hooting and
yelling of the students in the audience, there was disagreement over the degree of disturbance, and the
majority did not focus on the speech's disruptive effect. Id. at 684-85. Justice Brennan concurred in
the judgment, but he took issue with the majority's analysis because he did not believe Fraser's speech
was obscene or vulgar, noting that Fraser's speech was "far removed from the very narrow class of
'obscene' speech the Court has held is not protected by the First Amendment." Id. at 687-88. He
concurred in the judgment, however, because he did not believe the school officials violated the First
Amendment in sanctioning Fraser. Id. at 690. As Justice Brennan saw it, Fraser's speech was not
entitled to constitutional protection because it came under Tinker's substantial disruption test. Id
179. 484 U.S. 269 (1988).
180. Hazelwood Sch. Dist.V. Kublmeier, 484 U.S. 260,273-74 (1988).
181. The school's newspaper, the Spectrum, was written and edited by students in the Journalism
H class at Hazelwood East High School. Id. at 262. Funds for printing the newspaper were provided
by the Board of Education, and the journalism teacher was the adviser to the newspaper. Id. The
practice was to submit page proofs to the principal for final review prior to publication. Id. at 263.
When the proofs of the May 13 edition were submitted to the principal, he objected to two articles. Id.
One article described three students' experiences with pregnancy; the other discussed the impact of
divorce on Hazelwood students. Id. The principal was concerned that the identities of the three
pregnant girls might be discerned from the article, that references in the article to sexual activity were
inappropriate for younger students, and that the parents whose divorces were discussed should have
been given an opportunity to respond. Id Believing there was insufficient time to make the changes
to address his concerns prior to the publication deadline, the principal directed the newspaper's
advisor to withhold the two articles from publication. Id. Student staff members of the Spectrum
brought suit in federal district court against the school district, ieeldig a declaratory judgment that
their First Amendment rights had been violated. Id.at 264. The district court held that the school
could impose restraints on students' speech that is an "integral part of the school's educational
function" so long as the decision has "a substantial and reasonable basis: ' Id. The Court of Appeals
for the Eight Circuit reversed, holding that the Spectrum was not only a part of the school curriculum,
but also a public forum because it was intended to serve as a conduit for student viewpoint Id& at 265.
Thus, the school could not censor articles except as necessary to avoid material and substantial
interference with school work, discipline or the rights of others. Id. The Supreme Court reversed,
holding that the Spectrum was not a public forum, but rather a part of the educational curriculum and a
regular class room activity. Id. at 270, 273-74.
182. Public schools do not possess the attributes of streets, parks, and other traditional public fore
that "time out of mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions:' Id. at 267 (citations omitted)..
1999] STUmNT oN STUDENT SEXUAL HARASSMENT 231
created within a public school only if school officials have "by policy or
practice" opened the school "for indiscriminate use by the general
public" or by some segment of the public, such as student
organizations. 1 83 Finding that the school newspaper was part of the
journalism course, over which the journalism teacher exercised
considerable discretion, the Court concluded that school officials had
preserved the forum for its intended use as a supervised learning
experience for students. The Court held the newspaper could not be
characterized as a public forum and therefore was subject to reasonable
184
restrictions by the school administration.
As it had in Fraser,the Court distinguished the facts of the case
from Tinker.1 8 5 The distinction rested primarily on the difference
between school-sponsored speech and non-school-sponsored speech. 186
Tinker involved the school's tolerance of personal student expression,
while Hazelwood entailed the active promotion of school-sponsored
student speech.' 8 7 Since school-sponsored speech may be perceived as
bearing the imprimatur of the school, school officials are afforded
greater leeway in regulating it.188 When the medium of student
expression is through a school-sponsored activity, school officials need
not look to the ultimate effect of student speech in determining whether
or not restrict it.189
The Supreme Court's decisions in Tinker, Fraserand Hazeiwood
establish three bases on which school officials may limit student speech:
1) when the speech materially disrupts the educational environment; 19 0
2) when the speech is vulgar or offensive; 19 1 or 3) when the speech
carries the school's imprimatur or is reasonably related to legitimate
educational concerns. 19 2 Thus, the Tinker-Fraser-Hazelwoodtrilogy,
183. Id.
184. Id. at 268-71.
185. Id. at 272-73.
186. Id. at 268-73.
187. Id. at 272-73.
188. Id.
189. Id. at 270-71. Justice Brennan again dissented, taking issue with the majority's shift away
from the substantial disruption test of Tinker. Id. at 277. According to Brennan. there was no need to
draw a distinction between school-sponsored and non-school-sponsored speech, nor to accord
different levels of constitutional protection to student speech on that basis. Id. at 281. A different
standard was not necessary, because the Tinker standard adequately encompassed all student speech.
Id. at 282-83. Under the Tinker standard, school officials would have control over student speech in
school-sponsored activities; such speech is even more likely to disrupt a curricular activity than speech
that arises in the context of noncurricular activity. Id. at 283. In Brennan's view, the new standard
created by the Hazelwood majority unnecessarily created a 'taxonomy of school censorship." Id. at
281-83.
190. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503,513 (1969).
191. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,685-86 (1986).
192. Hazelwood.484 U.S. at 273.
232 NORTH DAKOTA LAW REVmW [VOL. 75: 205
taken as a whole, indicates that school officials have broad authority to

proscribe the speech of elementary and secondary school students
consistent with the Constitution. This is quite different from the
non-school decisions, as seen in R.A.V., that greatly limit the govern-
ment's ability to regulate speech.19 3 Still, a question remains: In what
way, if any, does the First Amendment limit the manner in which schools
attempt to comply with the duty to eliminate sexual harassment and
create a non-hostile learning environment?
IV. THE IMPACT OF THE FIRST A.MENDMENT ON EFFORTS TO

CURB PEER SEXUAL HARASSMENT
A. CoNsmENG PEER SExuAL HARAssmENT INTHE CoN'TxT OF TH
PUBLIC SCHOOL
Education is perhaps the most important function of state and local

government.1 9 4 Public schools are not only engaged in providing
instruction in the fundamentals of reading, writing, mathematics, history
-and so forth. They are also transmitters of common social and political
values, including those essential to participation in a democratic
society.195 Among such values are equality and equal opportunity. 1 96
Given the primacy of education in a child's development, concern for
the welfare of students and their ability to participate fully in the learn-
ing process is central to the mission of elementary and secondary
19 7
schools. Therefore, schools must formulate, interpret and apply
193. See suprasection III.A.

194. See Brown v. Board of Educ., 347 U.S. 483,493-94 (1954). The Court in Brown stated:
Compulsory school attendance laws and the great expenditures for education both
demonstrate our recognition of the importance of education to our democratic society ...
It is the very foundation of good citizenship ... [lt is a principal instrument in awaking
the child to cultural values, in preparing [her] for later professional training, and in
helping [her] to adjust normally to [her] environment . . . In these days it is doubtful that
any child may reasonably be expected to succeed in life if [she] is denied the opportunity
of an education.
Id.
195.' See Plyler v. Doe, 457 U.S. 202,221 (1982) (finding that public schools are "[a] most vital
civic institution for the preservation of a democratic system of government ... [and serve] as the
primary vehicle for transmitting 'the values on which our society rests") (citations omitted); Ambach
v. Norwick, 441 U.S. 68, 76 (1979) (acknowledging the importance of the public school "in the
preparation of individuals for participation as citizens, and in the preservation of the values on which
our society rests. . :'). See also Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,
457 U.S. 853 (1982).
196. See U.S. CoNs?. amend. XIV. The Fourteenth Amendment's guarantee of equality and
equal opportunity are not merely democratic values to be taught to students by public schools; they are
also constitutional obligations imposed upon the public schools in the fulfillment of its mission.
197. The role of education in the creation of a democratic and egalitarian society is a central
tenet of American ideology. See Betsy Levin, EducatingYouth for Citizenship:The Conflict Between
Authority andIndividualRights in the PublicSchool, 95 Yale L. J. 1647, 1648-49 (1986).
policies that effectively prevent or redress sex discrimination, including

sexual harassment. Such regulation of the conduct of faculty and
students, however, must also be consistent with academic freedom and
the First Amendment. 198 The tension between the prohibition of sexual
harassment and the protection of free expression must be understood in
light of the unique nature of the elementary and secondary school
environment and the goal of providing all students equal access to
educational opportunities.
The unique nature of the public school environment is in part a
function of its involvement with both pedagogy and the inculcation of
social norms and values. 19 9 It is also a function of the fact that school
attendance is compelled, making students a captive audience, and that its
200
students are young and not yet intellectually or emotionally mature.
Elementary and secondary school students, unlike their counterparts at
the college and university level, are more impressionable and vulnerable,
and thus they are less capable of handling uninhibited, robust discussion
on all subjects.2 0 1. Further, unlike institutions of higher education, the
public school has a legal obligation to protect the safety of its students
while providing them with an atmosphere conducive to learning. 2 02
Sexual harassment has an adverse impact on the educational
environment. An atmosphere permeated with sexual harassment makes
learning more difficult. Student victims of sexual harassment may
experience a variety of difficulties having a long-term detrimental affect
It is through education that the skills necessary to exercise the responsibilities of

citizenship and to benefit from the opportunities of a free economy will be imparted, no
matter how recently arrived or previously disadvantaged the individual ...The way in
which school administrators operate schools may have a more powerful influence on
students than the lessons in their civics books.
Id.
198. See OCR Guidance, 62 Fed. Reg. 12,034, 12045 (1997).
199. See Pico, 457 U.S. 853, 864 (1982) (finding that "there is a legitimate and subslantial
community interest in promoting respect for authority and traditional values be they social, moral, or
political").
200. See Levin, supranote 197, at 1678. See also Bethel School DisL No. 403 v. Fraser, 478 U.S.
675, 684 (1986); Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
201. See Smolla, supra note 24, at 207 (noting that a university is quite different from an
elementary or secondary school because it is "a place of uninhibited discourse and should remain
so").
202. It is in part because of the youth and vulnerability of school-aged children that public
schools have historically stood in loco parentisin fulfilling theirparenspatriae role. See, e.g., Harker
v. Rochester City Sch. Dist., 661 N.Y.S. 2d 332, 334 (N.Y App. Div. 1997) The court in Harker
stated:
It is well settled that '[a] school district owes a duty to its students to exercise the same
degree of care toward them as would a reasonably prudent parent under similar
circumstances.' ... (A] school district has a special relationship to its students ...The
duty of a school district to its students 'is strictly limited by time and space'... and exists
'only so long as a student is in its care an custody during school hours ... '") (citations
omitted).
Id. See also Levin, supra note 197, at 1678.
234 NORTH DAKOTA LAW REvmw [VOL. 75: 205
on their education. 20 3 Additionally, students who have been sexually

harassed report developing physical, psychological and social
problems. 20 4 Students who have been sexually harassed report that they
no longer want to go to school and are more likely to miss class or to
skip school entirely. 20 5 Some even transfer to different schools to avoid
harassment. 2 0 6 After being harassed, students often withdraw from
participation in class and their performance in school suffers. 2 07 The
'experience can impair their academic progress and effectively limit their
educational and career opportunities. 2 0s Schools cannot satisfy goals of
equality and equal opportunity, nor transmit thes6 basic democratic
values to their students adequately, in an atmosphere in which sexual
harassment prevents some students from full participation in the educa-
tional program.
B. CONSTrTuTIoNAL DocTRINE GOVERNING FIRST AMENDMENT RIGHTS
IN PUBLIC ScHooLs ALLOWS FOR THE REGULATION OF SEXUALLY
HARASSING SPEECH
Though children and adolescents have constitutional rights, their

rights are not coextensive with the constitutional rights of adults. 2 0 9 The
203. See generally AAUW SuRvmy,supranote 13, at 15-18.

204. Student victims of sexual harassment have been found to suffer from physical conditions
such as insomnia, headaches, ulcers, weight fluctuations, genito-urinary problems, and respiratory
distress; psychological problems, including lethargy, nightmares, phobia, panic reactions, substance
abuse, depression, feelings of helplessness, anger, anxiety, and lack of motivation; and social problems
such as feeling less popular with peers, fear of new people or situations, lack of trust, changes in
social network patterns, negative attitudes and behavior in sexual relationships, and avoidance of
certain people or places. See generally AAUW StuRvEy, supra note 13, at 15-18. See also MICHELE
A. PALUDI &RtcHARDB. B aw , AcrADEc AND WORKPLACE SmcuAL HARAssmENr27-29 (1991).
205. AAUW SuRvEy, supra note 13, at 15-16.
206. See, eg., Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560, 1565 (N.D. Cal. 1993).
207. See generally AAUW SuRvEy, supra note 13, at 15-18. See also, e.g., Davis v. Monroe
County Bd. of Educ., 119 S.Ct. 1661, 1666-67 (1999); Doe, 830 F. Supp. at 1565. The plaintiff in Davis
alleged a drop in her previously high grades as she became unable to concentrate on her studies due to
sexual harassment by fellow student. Id. Her father found a suicide note in which she had written that
she "didn't know how much longer she could keep [the harasser] off her."' Davis, 119 S.Ct. at 1667.
Similarly, in Doe, the victim "sustained injuries to her body and has and will suffer severe mental and
emotional distress as a result of the harassment she suffered. She has undergone medical and
psychological treatment as a result of the harassment." Doe, 830 F. Supp. at 1565. Plaintiff
transferred to another public school to avoid harassment, but comments continued there. Id. She then
transferred to a private girl's school where she "must now pay tuition for a private school because she
could no longer endure the harassment at public school:' Id.
208. Doe, 830 F. Supp. at 1565. The victims of sexual harassment are not the only ones
adversely affected by the practice. Sexual harassment reinforces stereotypes of women as sexual
objects. It makes males less open to working with females, and, if they have harassed unchecked in
the past, makes it more likely that they will continue to harass and discriminate against females. When
males become accustomed at an early age to relating to females as objects of scom, they may find it
difficult to relate to females as equal human beings for whom they have respect at later stages in life.
Thus, their future relationships with women, both personally and professionally, may suffer. See
generally SANDI .R& StOOP supranote 27, at 16-17.
209. See generally, e.g., New Jersey v. T.L.O., 469 U.S. 325 (1985); Bellotti v. Baird, 443 U.S.
Supreme Court has justified the differential treatment of children on

three bases: "The peculiar vulnerability of children; their inability to
make critical decisions in an informed, mature manner; and the impor-
tance of the parental role in child rearing." 2 10 The limited experience
and maturity of children by virtue of their age, their abilities, and their
capacity for rational decision making are significant factors that allow
the state to protect them in ways that would be unsuitable and unconsti-
tutional if applied to adults. 21 1 Recognition of these developmental
characteristics has allowed the Court to- determine that the free speech
rights of children are not as broad as those of adults and, they thus may
2 12
permissibly be limited more than those of adults.
Limitations on the First Amendment rights of children in estab-
lished constitutional doctrines generally support the conclusion that
schools may regulate sexually harassing speech because of its detrimen-
tal effect on the educational environment and the learning process. 2 13
The specific jurisprudence on the First Amendment rights of public
school students-the Tinker-Fraser-Hazelwoodtrilogy-confirms this
14
conclusion. 2
Under the "substantial disruption" test of Tinker, student speech
that materially disrupts class work or involves substantial disorder or the
invasion of the rights of others is not immunized by the constitutional
guarantee of freedom of speech. 2 15 Schools require some degree of
order within the institution to carry out the educational mission. 216
When student speech disrupts school activities, the need to preserve
order, maintain a positive learning environment, and protect the well
being of students takes precedence over freedom of expression. 2 1 7
When student speech infringes on the rights of other students "to be
622 (1979); Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503,514 (1969); In re Gault, 387 U.S. 1,
27-31 (1966).
210. Belford, 443 U.S. at 634. "(D]uing the formative years of childhood and adolescence,
minors often lack the experience, perspective, and judgment to recognize and avoid choices that could
be detrimental to them." Id. at 635.
211. See, e.g., Ginsburg v. New York 390 U.S. 629, 638-40 (1968) ("even where there is an
invasion of protected freedoms 'the power of the state to control the conduct of children reaches
beyond the scope of its authority over adults'") (quoting Prince v. Massachusetts, 321 U.S. 158, 170
(1944)); Prince, 321 U.S. at 159-62 (finding that "[t]he state's authority over children's activities is
broader than over like actions of adults'). See also F.C.C. v. Pacifica Found., 438 U.S. 726,749-51
(1978).
212. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-67 (1988); Bethel Sch.
Dist No. 403 v. Fraser, 478 U.S. 675, 682-83 (1986); Pacifica,438 U.S. at 748-50; Ginsburg,390 U.S.
at 639-43. See also generallyJohn H. Garvey, Children andthe FirstAmendment, 57 TEx. L. Rnv. 321
(1979) (discussing the unique circumstances that surround children and the First Amendment).
213. See, e.g., Pacifica, 438 U.S. at 749-51; Ginsburg, 390 U.S. at 638-40; Prince,321 U.S. 4t
159-62.
214. See Hazeltwoo4 484 U.S. at 273; Fraser,478 U.S. at 685-86; Tinker, 393 U.S. at 513.
215. Tinker, 393 U.S. at513.
216. Levin, supra note 197, at 1647.
217. Tinker, 393 U.S. at 513.
secure and to be let alone," that speech may be regulated. 2 18 Thus,

Tinker provides support for prohibiting and sanctioning sexually harass-
ing speech. School officials can proscribe sexually harassing epithets,
profane or vulgar language and the like when such speech has caused, or
when officials know of facts which enable them to predict that speech
will cause a material disruption or substantial disorder of the educational
program. 2 19
When disruptive speech is also sexually harassing speech, which
intrudes on the rights and undermines the security of the students to
whom it is directed, that speech can be prohibited.2 20 The interest of the
public school in protecting its students from harm, including psycholog-
ical and emotional harm justifies the restriction on expression.
The point at which sexual harassment becomes actionable sex
discrimination under Title IX is the point at which the educational
environment becomes "permeated with 'discriminatory intimidation,
ridicule, and insult' that is 'sufficiently severe or pervasive to alter the
conditions of the victim's [education] and create an abusive [learning]
environment." 2 2 1 The rationale behind the "severe and pervasive"
requirement is that the harassment must be more than simply offensive
or insulting in order to constitute actionable sex discrimination. 2 22 The
"'severe and pervasive" standard reflects the cumulative effect of multi-
ple harassing incidents on the victim.2 2 3
Some commentators have suggested, however, that school adminis-
trators' use of the "severe and pervasive" standard as the measure by
which to justify suppression of harassing speech may conflict with free
speech rights.2 24 This conflict arises from the nature of the First Amend-
ment. The First Amendment is as an individual right, applied incident
by incident. A student who engages in multiple sessions of harassment,
218. Id. at 508.

219. Id. at 509. The Court in Tinker indicated that school officials could justify prohibition of a
particular expression where officials "had reason to anticipate!' the speech would "materially and
substantially interfere with the requirements of discipline in the operation of the school:' I& But such
prohibition required a showing of "something more than a mere desire to avoid ... discomfort and
unpleasantness" to be constitutionally sound. ld
220. Id. at 508.
221. Brown v. Hot. Sexy & Safer Prods., Inc., 68 F.3d 525,540 (1st Cir. 1995) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17,23 (1993)).
222. See Daniel G. McBride, Guidance for Peer Sexual Harassment?Not!, 50 STAN. L. REv. 523,
554 (1998).
223. McBride, supra note 222, at 554. Severity and pervasiveness, like "unwelcomeness:' is
determined from the perspective of the victim and the totality of circumstances, and reflect the
cumulative impact of multiple episodes.
224. The OCR Guidance implies, without further elaboration, that a school's application of the
severe and pervasive standard when regulating student expression in response to allegations of sexual
harassment will help to balance free speech rights with efforts to prevent sex discrimination. See OCR
Guidance, 62 Fed. Reg. 12,034, 12045 (1997). See alsoMcBride, supranote 222, at 554.
therefore, could argue that each incident was protected by the First
Amendment, even if the overall effect was severe and pervasive harass-
ment because of the cumulative effect on the victim. 2 25 This argument is
compounded by the lack of a threshold severity standard for suppressing
6
speech in curricular settings.2
This supposed conflict, however, must be assessed within the context
of the special nature of the public school. Application of the "severe
and pervasive" standard to sexually harassing student speech is consis-
tent with student free speech rights as judicially defined in Tinker.
Under Tinker, school officials can prohibit speech if they can demon-
strate that the speech has materially and substantially interfered with
school activities or intruded upon the security of others, or if it is reason-
able to believe that it will do so.22 7 Contrarily, the prohibition cannot be
sustained where the speech at issue was merely unpleasant or caused
discomfort. 22 8
Similarly, an action for peer sexual harassment is cognizable only
where the speech or conduct at issue is serious enough to have the
29
systemic effect of denying the victim equal educational opportunity. 2
Where such harassment denies the full and equal participation of a
student in the benefits afforded by the educational institution and has a
systemic effect on the educational program, it undermines the school's
purpose, materially and substantially disrupts or interferes with its
activities, and intrudes upon the rights and security of the harassment
victim. Therefore, expression that meets the severe and pervasive stan-
dard for actionable hostile environment sexual harassment likely meets
the substantial disruption test of Tinker as well.
Schools may also proscribe student speech that can be characterized
as vulgar, lewd or offensive. 2 30 The Fraser Court taking into consider-
ation the purpose of public education, the character of the public school
and its relationship with its student constituency, provided an additional
analytical basis for limiting student speech in the school context. 2 31 The
Court focused on the role of the public school in inculcating fundamen-
tal democratic values and reasoned that, while essential democratic values
require "tolerance of divergent political and religious views, even when
225. McBride, supranote 222, at 554.

226. McBride., supra note 222, at 555.
227. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503,513-14 (1969)
228. Id. at 514.
229. See Davis v. Monroe County Board of Educ., 119 S.Ct. at 1675 (1999).
230. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 685 (1986) (stating that the
"School District acted entirely within its permissible authority in imposing sanctions... in response to
(student's] offensively lewd and indecent speech").
231. Id. at 681.
the views expressed may be unpopular," these "'fundamental values'

must also take into account consideration of the sensibilities of others,
and, in the case of a school, the sensibilities of fellow students." 23 2 Thus,
it is "a highly appropriate function of public school education to
prohibit the use of vulgar and offensive terms in public discourse." 2 3 3
Many of these terms, which can be regulated under Fraser,correspond
to terms students use to sexually harass each other.
Beyond the need to teach students appropriate forms of civil
discourse and deportment, school officials' duty to protect students from
the harmful effects of sexual harassment may also justify restrictions on
student expression. 2 3 4 The Fraser Court recognized the concern of
school authorities "acting in loco parentis, to protect children-especially
in a captive audience-from exposure to sexually explicit, indecent, or
lewd speech." 23 5 The Court's discussion of the sensibilities of minor
students and the need to protect them from exposure to vulgar and
offensive speech suggests that school officials can restrict such expres-
sion regardless of whether there is any risk of substantial disruption. 23 6
-It is left to the discretion of school administrators to define "vulgar"
speech.2 3 7 This broad discretion, however, still requires school officials
to balance students' rights to express unpopular and controversial views
against the school's need for order and concern for decency. 2 38 Conse-
quently, officials may not restrict student speech that is neither vulgar
nor disruptive based on its content.2 39
Finally, a school need not tolerate speech that is inconsistent with its
basic educational mission. 2 40 As delineated in Hazelwood, administrators
may prohibit inappropriate student speech in classroom discussion or in
extracurricular activities sponsored by the school or occurring on school
232. Id.
233. Id. at 683.
234. See discussion supra Part V.A.
235. Fraser,478 U.S. at 684.
236. Id. at 684-85.
237. See Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157, 159 (D. Mass. 1994). "The Frst
Amendment limits minimally, if at all, the discretion of... school officials to restrict so called 'vulgar'
speech ... In assessing the acceptability of various forms of vulgar expression...the limits are to be...
decided within the community... :' Id. at 159. Schools are entitled to "prohibit speech that is
expressed in lewd, vulgar, or offensive terms, regardless of whether the speech causes a substantial
disruption ... Mhe limits on vulgarity ... assuming a general standard of reasonableness, am to be
defined by school administrators, answerable to school boards ultimately to the voters of the
community." Id. at 168, 170 (citations omitted).
238. Fraser,478 U.S. at 681.
239. Pyle, 861 F. Supp. at 171-73. See also Broussard v. School Bd., 801 F. Supp. 1526. 1534-37
(E.D. Va 1992).
240. Hazelwood Scb. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988). Schools "need not tolerate
student speech that is inconsistent with its 'basic educational mission' even though the government
could not censor similar speech outside the school." Id. (citing Fraser,478 U.S. at 685).
premises, or that might reasonably be associated with the school or

perceived as having the school's approval. 2 4 1 Thus, when such speech
corresponds to sexual harassment, the school may proscribe it on the
242
basis of Hazlewood.
In sum, public school officials have considerable authority to
regulate student speech consistent with the First Amendment. There are
three prevailing doctrinal approaches to the First Amendment rights of
elementary and secondary school students which permit restriction of
expression. First, vulgar or plainly offensive speech may be prohibited
without a showing of disruption or substantial interference with the
school's work. 2 43 Second, school-sponsored speech may be restricted
when the limitation is reasonably related to valid educational
concerns. 2 44 Finally, speech that is neither vulgar nor school-sponsored
may be prohibited if it causes a substantial or material disruption of the
school's program, or if it significantly intrudes upon the security of
fellow students. 2 45 Therefore, it is probable that any harassing speech by
students, if it is severe and pervasive enough to constitute hostile environ-
ment sexual harassment, would be constitutionally subject to prohibition
or sanction consistent with one of these approaches.
V. CONCLUSION
Title IX prohibits discrimination on the basis of sex within educa-
tional institutions receiving federal funding. 24 6 Sexual harassment is
prohibited sex discrimination. Student-on-student hostile environment
sexual harassment is a serious and burgeoning problem at the
elementary and secondary school level, a problem to which school
officials can no longer turn a blind eye. While school districts may be
held financially liable for failing to stop known peer-on-peer sexual
harassment, school officials have more than just the fear of financial
liability to motivate their efforts to prevent sexual harassment within their
institutions.
Sexual harassment chills the learning environment and subverts the
very purpose of the educational institution. Given the distinctive charac-
ter of the public school and its special relationship with its student
constituency, reasonable regulation of student speech and conduct to
eliminate or redress sexual harassment is not only consistent with the
241. rd.at271-73.
242. Id.
243. Fraser,478 U.S. at 685-86.
244. Hazelwood, 484 U.S. at 273.
245. Tinker v. Des Moines Indep. Sch. Dist, 393 U.S. 503,513 (1969).
246. See 20 U.S.C. § 1681(a) (1994).
240 NORTH DAKOTA LAW REVIEW [VOL. 75:205
school's educational mission but is also sound educational policy.

Constitutional doctrine governing speech rights in the public school
presents no obstacle to the reasonable regulation of harassing speech.
But in implementing such regulation, school administrators must seek to
strike a balance between the need to maintain order and the obligation to
respect the right of students to freedom of expression. If that balance
can be achieved, schools will provide their students equal access to an
environment conducive to learning, safeguard the students in their
charge, and, in the process, provide them with a lesson on democratic
values more powerful than that in any civics textbook.

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What do these two incidents have in common? While the gravity

15. AAUW SuRvEY, supra note 13, at 7.

While the problem of student-on-student sexual harassment has

II. THE LEGAL CONTEXT OF SEXUAL HARASSMENT IN

made by someone within a work or educational setting when: (1) sub-

form of sexual harassment, characterized by multiple, varied and fre-

B. THE DEvELOPMENT OF SEXUAL HARASSMENT LAW UNDER TrrLE IX

36. See discussion infra Part ll.C.

on race, color or national origin by recipients of federal funds. 4 2 Title

Opportunity Commission, the agency authorized to enforce Title VII, for

hostile or abusive requires looking at the totality of the circumstances,

the existence of a hostile environment within its own programs or

that sexual harassment of a student by a teacher or other employee of a

91. Id. at 1674.

teacher or by another student, unless a district official has actual knowl-

I. HARASSING SPEECH AND THE FIRST AMENDMENT

Amendment issues arise. The First Amendment of the United States

111. U.S. CoNsr. amend. L

constitute a crime is generally not protected by the First Amendment

A. OVERvIEw oF TRADITIONAL From SPEECH DocnuNE

that may be derived from them is clearly outweighed by the social

131. Id. at 521-22.

142. rd.at 391.

harassment, however, it is largely inapposite to the question of

B. THE FIRST AMENDMENT IN ScHooLs

wearing black armbands during the holiday season. 154 Fifteen-year-old

disorder or an invasion of the rights of others is not immunized by the

The Court concluded that nothing in the Constitution prohibits school

taken as a whole, indicates that school officials have broad authority to

IV. THE IMPACT OF THE FIRST A.MENDMENT ON EFFORTS TO

Education is perhaps the most important function of state and local

193. See suprasection III.A.

policies that effectively prevent or redress sex discrimination, including

It is through education that the skills necessary to exercise the responsibilities of

on their education. 20 3 Additionally, students who have been sexually

Though children and adolescents have constitutional rights, their

203. See generally AAUW SuRvmy,supranote 13, at 15-18.

Supreme Court has justified the differential treatment of children on

secure and to be let alone," that speech may be regulated. 2 18 Thus,

218. Id. at 508.

225. McBride, supranote 222, at 554.

the views expressed may be unpopular," these "'fundamental values'

premises, or that might reasonably be associated with the school or

school's educational mission but is also sound educational policy.

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