In clear cases of sexual harassment, it is easy and appropriate to punish improper, predatory behavior. In such cases, the victim will be compelled to report the abuse, and the school will be compelled to respond. But the athletic environment occupies the blurry periphery of conduct that violates personhood. Here, in the sports context, intimate contact is routine, whether in heated moments on the field or in the forced companionship on the road. There is an increased risk of sexual harassment because the very environment is characterized by close physical and emotional relationships as well as unequal power relations. Physical acts often define sexual harassment, but it is not unusual to see a coach slap one of his or her athletes on the rear. The legal definition may or may not reach such conduct, and that uncertainty is a problem. But the academic institutions would not even reach this concern--they would never investigate in the first place. This complacency is cause for alarm, complacency that results from a law that has failed athletes and coaches alike. The standard articulated by Gebser is the real culprit behind the legal instability of sexual harassment. This must be changed to compel academic institutions to take a more active role in the prevention of sexual harassment.
In order to isolate the problem of protecting student-athletes, this Note focuses on coach-athlete sexual harassment only in the college setting. The complexity of athletes as minors raises further issues outside the scope of this Note and will not be addressed. Here, the discussion will provide an overview of Title IX history, explaining how the judiciary has played an active role in interpreting Title IX and applying it to academic institutions. Then the focus shifts to sexual harassment between a coach and an athlete, comparing the two kinds of sexual harassment and tracing the development of cases to the present standard. Next, the Note will examine the current standard of liability, inquiring whether it fulfills the purpose of Title IX and how academic institutions have abused it to sidestep responsibility. Finally, it will demonstrate how the requirement of "actual knowledge" creates institutional inertia. In sum, the Note demonstrates how the "know or should have known" standard is the best option for purposes of policy and effectiveness of law.
Changing the Rules: Why the Current "Actual Knowledge" Sexual Harrasment Standard Doesn't Make the Cut in Athletics,
1 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol1/iss1/7