SWR: What are the most important aspects of Justice O'Connor's opinion, from your perspective?

Kaplin: The most important aspect is the result itself. In light of the arguments that had been made in the lower courts, and in light of the Court's prior decision in Gebser, [see SWR 98.27, p. 744]; a school will not be liable for sexual harassment of a student by a teacher, unless school officials had "actual notice of, and [were] deliberately indifferent to, the teacher's misconduct"] there were only two alternatives available to the Davis court: (1) recognize a peer harassment cause of action under Title IX parallel to the student/teacher cause of action recognized in Gebser; or (2) completely reject any possible Title IX cause of action for peer harassment. The Court was split between these two alternatives, and the former prevailed by only one vote. Had there been a one-vote shift, there would have been no judicial recourse at all under Title IX for students subjected to peer harassment on school grounds during the school day, no matter how severe the harassment and no matter how clear the knowledge of school officials.

SWR: Sexual harassment can be hard to define. Does the Davis decision provide any guidance in that regard?

Kaplin: In her opinion for the majority, Justice O'Connor tries very hard to provide such guidance. I believe she is only modestly successful. She makes important conceptual distinctions (e.g., between the misconduct of the harasser and that of school officials) and articulates useful definitional guidelines (e.g., the harassment must be severe, pervasive, and objectively offensive). But the distinctions and guidelines are somewhat amorphous and abstract -- a point that the dissent emphasizes. On the other hand, we should not have expected more than modest guidance from the Court. The issues are difficult and contextual, and courts are equipped to provide only incremental guidance on a case-by-case basis. Other guidance to supplement that of the courts must come from other sources -- Congress, the US Department of Education, and, in particular, the colleges and universities themselves. Through the process of devising and explicating their own internal definitions and policies, college and universities can provide more pointed guidance adapted to the circumstances of their own campuses.

SWR: Are colleges likely to face a wave of sexual harassment lawsuits, in the aftermath of Davis?

Kaplin: Initially, there will likely be an increase in peer sexual harassment claims, since publicity on the Court decision will sensitize students to their rights and will encourage attorneys to see how much they can make of this new tool the Court has fashioned. But I expect this wave of activity will die down quickly as lower courts signal that they will be receptive only to claims of egregious harassment that are soundly documented to support the elements of a Davis cause of action. Moreover, I believe that litigants and attorneys will soon discover that Davis claims will be more difficult to establish in the college and university setting than in the elementary and secondary school setting (the setting of the Davis case).

SWR: Does the Davis decision give colleges flexibility to resolve sexual harassment allegations through mediation, and other forms of alternative dispute resolution?

Kaplin: Yes. The O'Connor opinion provides considerable flexibility for colleges to move in this direction. I would strongly encourage this course of action. Through alternative dispute resolution programs, gender relationship problems and misbehavior problems may be worked out in a multi-faceted manner, without the need for ultimate judgments by third parties on whether or not there is actionable harassment under Title IX. As is true in other contexts as well, educational and ethical standards can be as important in guiding behavior as legal standards, and non-legal solutions to campus problems can be as viable as legal solutions or more so. This is especially true when we are dealing with matters, like peer harassment, that often present themselves in shades of gray rather than in black and white.

SWR: Colleges have less direct control over students than elementary and secondary schools. Will the courts take that into consideration when determining whether our response to sexual harassment complaints was reasonable?

Kaplin: Any court that follows Davis will give close attention to the issue of control. The O'Connor opinion indicates that both control over the harasser and "control over the context in which the harassment occurs" are keys to liability. But it is important to note that the Davis case involved elementary education, and O'Connor's reasoning about control is crafted to fit that context. O'Connor acknowledges that universities would not be expected to exercise the same control over students as would elementary schools. It should follow that colleges and universities, in general, will have less risk exposure for peer harassment under Title IX because they exert less control over students and over the educational environment than do elementary and secondary schools.

SWR: Is there a likelihood colleges will be trying to invoke speech codes again, to reduce the risk of sexual harassment liability? Is it necessary to enforce a broadly written speech code in order to prevent sexual harassment, as Justice O'Connor defined it?

Kaplin: I think it unlikely that colleges will resurrect speech codes as a means to reduce the risks of Davis liability, and it is certainly unnecessary for them to do so. Now as before, speech codes still would encounter serious First Amendment difficulties and, in addition, would still have quite limited efficacy. Mediation programs, education programs for students and student affairs professionals, counseling programs for students, the development of internal guidelines on sexual harassment (with examples), and the use of grievance procedures would be far better responses than speech codes.

SWR: Assume a college president asks you what her campus should be doing now to avoid litigation, after the Davis decision. What's your advice?

Kaplin: In a phrase, my advice would be preventive planning. Through institutional responses such as I mentioned in my prior answer, institutions could make considerable progress in discouraging sexual harassment problems from arising, in informally and internally handling those that do arise so as to alleviate the urge to litigate in the courts, and in constructing suitable defenses should judicial claims be filed. I would also advise that good team work between administrators and college counsel would be necessary to effectuate these preventive planning initiatives.

SWR: Finally, from a broader perspective, isn't there a risk that decisions like Davis will undermine the concept of federalism? Are we moving--perhaps unintentionally--to federal control of education?

Kaplin: The dissent by Justice Kennedy raises the specter of federal control of education. This has been a typical rallying cry at least since the 1950's whenever events occur that serve to increase the federal role in education. Federal control claims are made against Congress and the Department of Education as well as the courts. In prior Supreme Court cases dissenting judges have often raised federal control arguments in conjunction with the "floodgate" argument -- the argument that the Court's decision will open the litigation floodgates and overwhelm schools and colleges with litigation and damages liability. The dissents in the Tinker case on student free speech and the Goss v. Lopez case on student due process are classical examples. Over time, these arguments have generally appeared to be overblown, and I think that will also be the case with Davis. Of course we should always be concerned with maintaining a balance between the power of the federal government and the discretion of school systems and educational institutions. We should always be concerned that the federal government makes the decisions that it is most competent to make and reserves to the schools and colleges the decisions they are most competent to make. We should always be concerned that Congress and the federal agencies make decisions on the basis of considered educational policy and public policy judgments rather than by responding to the political winds or the presumed desires of constituents. And we should always be concerned that federal courts make their decisions on the basis of considerations appropriate for courts. On balance, I do not believe that the Davis decision intrudes upon any of these values.

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