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"YES" POSITION THESIS

Schools may be held liable for student-on-student sexual harassment when the recipients of federal funding failed to stop a student from subjecting another to sever and pervasive sexual harassment where the recipient is deliberately indifferent to the known acts of sexual harassment and the harassing student is under the school's disciplinary authority.

"NO" POSITION THESIS

Schools cannot be held liable for student-on-student harassment because to do so would weaken the balance in federal power and numerous suits against local school districts would ensue which, in cost and number, will impose serious financial burdens on the schools. Also, schools cannot be liable for student-on-student sexual harassment because the harassment itself is not a possible Title IX cause of action due to the lack of clear and unambiguous notice.

BRIEFLY STATE AS MANY FALLACIES ON THE "YES" SIDE

1. The over-confident belief that schools are capable of exercising significant control over student discipline particularly in classroom. Some schools - like universities and colleges - may lack direct control over students and over the context in which the harassment occurs.

2. The underestimated difficulty associated with the job of distinguishing a childish demeanor in a single incident from the behavior that would ordinarily have to have a systemic effect on the victim's access to education that Title IX is designed to protect.

3. The conceptual distinctions between actionable and un-actionable harassment, definitional guidelines to identify sexual harassment (e.g., the harassment must be sever, pervasive, and objectively offensive) are very amorphous and abstract.

4. Belief that the language of Title IX is sufficiently clear to provide the requisite notice to the states and their school districts, so they could make an informed decision as to whether to take the federal money and assume the liability that comes with it.

5. Assumption that the argument of federal control of education raised by the dissent is a typical rallying cry that has been put forth whenever events occur that serve to increase the federal role in education.

6. Notion that the federal influence created by the court decision will not pervade everything minor from curriculum to day-to-day classroom activities, policies and student-to-student interactions.

7. Belief that the definitional guidelines for student-on-student sexual harassment are realistic and pragmatic to be useful in classrooms.

BRIEFLY STATE AS MANY FALLACIES ON THE "NO" SIDE

1. In deciding legislation, one must consider the actual implications of such legislation. One of the main problems with not ruling that public school officials should be liable for student-on-student harassment is the resulting legal system's blatant un-acknowledgement of psychological study indicating the adverse impact of sexual harassment on young students.

THREE MAIN AREAS OF DISAGREEMENT OF POSITIONS

A. Over the issue of whether the court's decision that school districts can be liable for damages for failing to stop a student-on-student sexual harassment undermine the concept of federalism

B. Over the issue the definition of sexual harassment

C. Over the issue of how much control schools can exercise over the harasser and over the context in which the harassment occurs.

JUSTIFY YOUR POSITION USING LIBRARY RESEARCH AND ONLINE RESOURCES

On Spending Clause Principle In Davis v. Monroe County Board of Education (119 S.Ct. 1661 [1999]), the court had to decide whether cases of student-on-student sexual harassment can be a private suit under Title IX, which reads: "No 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 educational program or activity receiving federal financial assistance." (20 U.S.C.sec. 1681(a)) According to the Supreme Court's Spending Clause principle, to hold schools liable for discrimination the statute must provide potential recipients of federal education funding with "unambiguous notice of the conditions they are assuming when them accept" it. Relying on this principle, student-on-student sexual harassment cannot constitute a possible Title IX cause of action because Title IX does not send clear and unambiguous notice that they are liable in damages for failure to remedy discrimination by their students. "Not one of the regulations the majority cites - Department of Education's regulations, state tort law, common law - suggests that schools may be held liable in money damages for failure to respond to their party discrimination."(119 S.Ct. 1684 [1999]) On federalism Maintaining a balance between the power of the federal government and the discretion of school systems and educational institutions is one of the important jobs assigned to our society. Courts can achieve this by setting and defining boundaries to the extension of federal power while public administrators should scrutinize the costs of increasing federal mandates, "particularly those capable of being interpreted expansively outweighing the benefits derived from the grant." That holding our school districts responsible for student-on-student sexual harassment will undermine balance in federal power is not a overblown argument, for our public schools are already exposed to the unlimited authority of the federal government. States have traditionally been the monitors of primary and secondary education. With 50 different states and thus 50 different sets of regulations for education, it can be difficult to make federal laws which will have the same purposeful impact on each state's system. In fact, it can be argued that federalism in our public school system is too pervasive, and wholly unnecessary, as it is much more effective with so many different systems for each state to monitor its own regulations. Federal power messing with states' education systems often leads to more paperwork, and

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