Indiana Law Review Drawing a Line on the Blackboard: Why High School Students Cannot Welcome Sexual Relationships with Their Teachers ROZLYN FULGONI-BRITTON' Introduction Jeanette Chancellor and Christian Cakes began a sexual relationship at the end of Jeanette' s junior year of high school.^ Jeanette was seventeen years old and had recently earned the position of drum major in the school band.^ Mr. Oakes was twenty-nine years old and was Jeanette' s band teacher.^ Jeanette and Mr. Oakes had sex approximately forty-six times during Jeanette' s senior year of high school."^ They had sex during band camp, in a closet in the school's band room, in Mr. Oakes' s car, and at a hotel during a band trip.^ During the spring of Jeanette' s senior year, Mr. Oakes also engaged in a sexual relationship with another student.^ That student's mother reported the relationship to a local police department.^ The police ultimately arrested Mr. Oakes and he pled guilty to two counts of corruption of a minor: one count for the other student and one for Jeanette.^ After Mr. Oakes' s arrest, Jeanette, who from an early age struggled with depression, anorexia, and bulimia, attempted suicide and was repeatedly hospitalized for psychiatric reasons.^ Jeanette sued her school for sexual harassment under Title IX of the Education Amendments of 1972.^^ On a motion for summary judgment, the school argued that Jeanette "was not 'harassed' because she 'consented' to sex with Oakes."' ^ The U.S. District Court for the Eastern District of Pennsylvania held, unequivocally, that "a high school student who is assigned to a teacher's class does not have the capacity to welcome that teacher's physical sexual * J.D. Candidate, 2009, Indiana University School of Law—Indianapolis; B.A., 2006, Michigan State University, East Lansing, Michigan. I would like to thank Professor Jennifer Ann Drobac for suggesting this topic and for the guidance she provided. I would also like to thank Professor Mary Margaret Giannini for her helpful comments and suggestions. Finally, I would like to thank my family and friends for their support during the note-writing process, and most importantly, my husband, Lee Fulgoni-Britton. I cannot imagine what law school would be like without his constant support, patience, and encouragement. 1. Chancellor v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 698-99 (E.D. Pa. 2007). 2. Id. at 699. 3. Id. 4. Id. 5. Id. 6. Id. 1. Id. 8. Id. 9. Id. 10. Id. at 704; see 20 U.S.C. § 1681(a) (2006). 11. Chancellor, 501 F. Supp. 2d at 705. 258 INDIANA LAW REVIEW [Vol. 42:257 conduct."^^ After stating that sexual conduct qualifies as sexual harassment, and sexual harassment is sex discrimination, the court concluded that "a teacher who has sex with a high school student who is assigned to his class discriminates against the student on the basis of sex in violation of Title IX."^^ This holding was one of the factors that allowed Jeanette's suit to survive summary judgment. ^"^ Judge Robreno understood the harm that can result from treating a high school student, in this case a minor, as having the legal capacity to consent to sex with her teacher.*^ While Chancellor v. Pottsgrove School District is a significant step in the right direction, the United States Department of Education has ignored the persuasive evidence that demonstrates that high school students lack the capacity to consent to sex with their teachers. ^^ The Department of Education has not taken the necessary steps to protect public school students. Currently, there is only a rebuttable presumption that the "sexual conduct between an adult school employee and a student is not consensual." ^^ The Department of Education should advocate that high school students do not have the capacity to consent to sex with their teachers. In Part I, this Note briefly reviews and explains the history of sexual harassment in public schools, discusses how these claims are grounded in Title IX, and notes the laws currently in place to criminally prosecute teacher-abusers. Part n explores how courts and the Department of Education view the issue of welcomeness as applied to secondary students. Part HI identifies the problems with the current approaches taken by courts and the Department of Education. Part rV offers two proposals to resolve these problems. First, age ofconsent laws should control in inquiries into welcomeness when a teacher sexually harasses a secondary student. Second, courts and the Department of Education should protect all secondary students by finding the unwelcome element of sexual harassment automatically met when a teacher and secondary student are involved in a sexual relationship. I. Background of Sexual Harassment in Schools The U.S. Supreme Court defined students' rights under Title IX in several 12. Mat 708. 13. Id. 14. Id. 15. See id. at 704-08. For ease of reference and to mirror the example of sexual harassment in Chancellor, the Author will use feminine pronouns for students and masculine pronouns for teachers. The Author acknowledges that many male students are also sexually harassed in secondary schools. 16. See id. at 707. 17. Ofhce of Civil Rights, Dep't of Educ, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 8 (2001), available at http://www.ed.gov/about/offices/list/ocr/docs/shguide.pdf [hereinafter Dep't OF Educ, Sexual Harassment Guidance]. 2009] DRAWING A LINE ON THE BLACKBOARD 259 pivotal cases: Cannon v. University ofChicago, ^^ Franklin v. Gwinnett County Public Schools, ^^ and Gebser v. Lago Vista Independent School District}^ In addition to recovery under Title IX, laws exist to criminally prosecute students' sexual harassers. Many of these laws do not allow consent as a defense to the crime. The issue of the capacity to consent is pivotal in sexual harassment suits under Title IX because it goes directly to the issue of unwelcomeness, which is an element of a prima facie case of sexual harassment.^ ^ To establish a prima facie case of sexual harassment, the plaintiff must allege that she was subjected to quid pro quo sexual harassment or to a sexually hostile environment; that she alerted an official at the school receiving Title DC funds who had adequate authority to correct the harassment; and that the school's response the reported harassment amounted to deliberate indifference.^^ To successfully allege hostile environment under Title DC, a plaintiff must show that: (1) she is part of a class protected by Title DC; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was severe enough to "alter the conditions of her education and create an abusive educational environment;" and (5) she has established a basis for institutional liability.^^ The capacity to "welcome" conduct is directly analogous to the capacity to "consent" to conduct. A. Title IX and Sexual Harassment in Schools Title DC of the Education Amendments of 1972 states that "[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."^"^ Congress intended to accomplish two objectives with Title DC: "First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices."^^ Title DC "applies to virtually every school district and college in the United States because of the pervasiveness of federal support."^^ The Supreme Court in Cannon found that there is ajudicially-implied private 18. 441 U.S. 677(1979). 19. 503 U.S. 60(1992). 20. 524 U.S. 274(1998). 21. Chancellor, 501 F. Supp. 2d at 707; accord Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 467-68 (8th Cir. 1996), rev 'd on other grounds. 111 F.3d 607 (8th Cir. 1999). 22. Morse v. Regents of Univ. of Colorado, 154 F.3d 1 124, 1 127-28 (10th Cir. 1998) (citing Gebser, 524 U.S. at 290). 23. Kinman, 94 F.3d at 467-68 (citing Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir. 1996)). 24. 20 U.S.C. § 1681(a) (2006). 25. Cannon, 441 U.S. at 704. 26. Todd A. DeMitchell, The Inadequacy of Legal Protections for the Sexual Abuse of Students: A Two-Track System, 215 W. Educ. L. Rep. 505, 515 (2007). 260 INDIANA LAW REVIEW [Vol. 42:257 right of action present in the text of Title IX.^^ The Court held that "Title IX presents the atypical situation in which all of the circumstances that the Court has previously identified as supportive of an implied remedy are present. [The Court] therefore conclude[d] that petitioner may maintain her lawsuit, despite the absence of any express authorization for it in the statute."^^ However, because the protections of Title EX hinge on the receipt of federal funds, lawsuits alleging a violation of Title IX may be successfully brought only against the public entity that receives the funds.^^ In 1992, the Supreme Court expanded the judicially implied right of action under Title IX in Franklin v. Gwinnett County Public Schools by holding that Title IX supported a claim for monetary damages.^^ The Court did not determine when a school district is liable for monetary damages when a teacher sexually harasses a student.^* However, in Gebser, the Supreme Court addressed when a student can seek monetary damages under Title IX.^^ A student exercised the implied private right of action by suing her school district and seeking monetary damages under Title IX for alleged sexual harassment by a teacher.^^ The teacher and student had engaged in a sexual relationship for over a year.^"^ The Court considered and rejected two possible standards for liability: respondeat superior and constructive notice.^^ The Court explained that if either of these standards were used to evaluate liability, "it [would] likewise be the case that the recipient of [federal] funds [would be] unaware of the discrimination."^^ Rather, "Title IX' s express means of enforcement—^by administrative agencies—operates on an assumption of actual notice to officials of the funding recipient."^^ The Gebser Court adopted a standard requiring actual knowledge.^^ The Court held that "a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond."^^ The Court, seemingly aware of the way in which its holding would make damage 27. Cannon, 441 U.S. at 703. 28. Idaitlll. 29. See Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1019 (7th Cir. 1997) ("Because Title IX only protects against discrimination under any education program or activity receiving federal financial assistance ... a Title IX claim can only be brought against a grant recipient and not an individual."). 30. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992). 3 1 . See id. 32. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286-90 (1998). 33. /J. at 278-79. 34. Mat 278. 35. See id. at 282-83. 36. Id. at 287. 37. Mat 288. 38. Id. at 290-91. 39. Mat 290. 2009] DRAWING A LINE ON THE BLACKBOARD 26 1 claims difficult, attempted to soften its holding by expressing great concern over the number of cases of sexual harassment in schools.'^^ The Court explained that the harm a student suffers as a result of sexual harassment is undeniable and such conduct by a teacher is reprehensible."^' The Court identified other rights of recovery available to students under state law and 42 U.S.C. § IQSS."^^ While Gebser is laudable because it provided a right of action for victims of sexual harassment in schools, the Court should have emphatically held that the sexual abuse of students will not be endured."^^ As the dissent stated, "the Court ranks protection of the school district's purse above the protection of immature high school students. '"^"^ The actual knowledge standard set by the Gebser Court is extremely high because the non-response by a school district must amount to deliberate indifference before the standard is met, making a student's burden to successfully claim sexual harassment nearly impossible. "^^ B. Laws Currently in Place to Protect Students and to Prosecute Their Abusers Criminally Although a sexual harassment claim is the primary way for student-plaintiffs to demand monetary compensation for the extreme misconduct of a teacher, there are also laws in place to punish the teacher-defendant. The most obvious criminal charge is one of statutory rape. While these laws supplement and reinforce Title IX, they do not eliminate the need for recovery under Title IX. 7. Statutory Rape Laws.—There is no federal statutory rape law, and consequently these laws vary state-to-state. Still, the basic premise behind each law remains the same—criminalize sexual conduct with minors under a stated age."^^ "[F]our states set the legal age of consent to sexual activity, absent special circumstances, at age fourteen. Almost half of the states set the age of consent at below the age of majority and only seven set it at eighteen, absent special circumstances.'"^^ All of these ages fall among the ages of students at various stages of their high school education. A subset of statutory rape laws exist in at least one state.'^^ Georgia has 40. Mat 292. 41. Id. 42. Id. 43. Todd A. DeMitchell, The Duty to Protect: Blackstone's Doctrine ofIn Loco Parentis: A Lensfor Viewing the Sexual Abuse ofStudents, 2002 BYU Educ. & L.J. 17, 50. 44. Gebser, 524 U.S. at 306. 45. DeMitchell, supra note 43, at 51. 46. Kay L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 EMORY L.J. 691, 708 (2006). 47. Jennifer Ann Drobac, "Developing Capacity": Adolescent "Consent" at Work, at Law, and in the Sciences ofthe Mind, 10 U.C. DAVIS J. Juv. L. & POL'Y 1 , 7 (2006) [hereinafter Drobac, Developing Capacity^. 48. See Chancellor v. Pottsgove Sch. Dist., 501 F. Supp. 2d 695, 705 (E.D. Pa. 2007) ("Some states have taken . . . [the] next logical step, explicitly providing that a student cannot consent to 262 INDIANA LAW REVIEW [Vol. 42:257 "impose[d] criminal penalties on a person who has sexual contact with a student enrolled in a school when that person has supervisory or disciplinary authority over the student.'"^^ The statute that criminalizes such conduct addresses this conduct in the same paragraph as it criminalizes sexual contact between a probation or parole officer and a probationer or parolee.^° This grouping of relationships hints at how the Georgia legislature views the relationship of school employees and students.^' The Georgia legislature appears to view the student- teacher relationship as a custodial relationship with the same potential for abuse as in other custodial relationships. 2. Corruption ofMinors Laws.—In addition to the more serious charge of statutory rape, in some states a teacher can be convicted of corruption of a minor.^^ For example, Pennsylvania has a law that states that anyone over the age of eighteen who "corrupts or tends to corrupt the morals" of anyone younger than eighteen years of age, or "who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree."^^ Consent is not a defense to a corruption of minors charge.^"^ The teacher in Chancellor (the case described in the introduction) pled guilty to this crime.^^ Although there are many laws to criminally punish teachers who engage in sexual relationships with their students, criminal prosecution is not enough. Interaction between teachers and students is an everyday reality for school-aged children, and the relationship between teachers and students must never include sex with her teacher."). 49. State v. Eastwood, 535 S.E.2d 246, 248 (Ga. Ct. App. 2000). 50. Ga. Code. Ann. § 16-6-5.1(b) (West 2003 & Supp. 2007): A probation or parole officer or other custodian or supervisor of another person referred to in this Code section commits sexual assault when he or she engages in sexual contact with another person who is a probationer or parolee under the supervision of said probation or parole officer or who is in the custody of law or who is enrolled in a school or who is detained in or is a patient in a hospital or other institution and such actor has supervisory or disciplinary authority over such other person. A person convicted of sexual assault shall be punished by imprisonment for not less than ten nor more than 30 years; provided, however, that any person convicted of the offense of sexual assault under this subsection of a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years. Any person convicted under this subsection of the offense of sexual assault shall, in addition, be subject to the sentencing and punishment provisions of Code Section 17-10-6.2. 51. See infra Part IV.C for a detailed discussion of the similarities between a teacher's custodial role and a prisoner employee's custodial role. 52. See, e.g.. Chancellor, 501 F. Supp. 2d at 699. A teacher who engaged in sexual relationships with two students pled guilty to two counts of corruption of a minor. Id. 53. See Corruption of Minors, 18 Pa. Cons. Stat. § 6301(a)(1) (2000). 54. Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super Ct. 1997). 55. Chancellor, 501 F. Supp. 2d at 699. 2009] DRAWING A LINE ON THE BLACKBOARD 263 an inquiry into welcomeness, regardless of whether the inquiry happens in a civil or criminal context. n. Sexual Relationships Between Secondary Students and Teachers ARE Different than Sexual Relationships in Other Contexts Sexual relationships between secondary students and teachers differ from relationships between other parties such as college students and professors or employers and employees. There are many intuitive reasons to support such an assertion, most prominently an innate sense that sex between a teacher and a high school student is simply wrong. As true as this is, more concrete reasons do exist. A. Secondary Students and Teachers Versus College Students and Professors Relationships between secondary students and their teachers are significantly different from relationships between college students and their professors. The age difference and subsequent maturity of college students is the most identifiable and the most relevant difference between the two groups.^^ Secondary students range in age from twelve to nineteen—depending on whether junior high school students are considered elementary or secondary students. ^^ The majority of college students are of the age of majority and have the legal capacity to consent to sex in every state. When considering relationships between college students and professors, some of the same concerns present in relationships between secondary students and teachers exist. Most prominent is the presence of power disparity and the extent of trust between student and teacher.^^ Some authors have argued that any ''consent" given in professor-student relationships should be legally ineffective because of the "power dependency relationship" present.^^ Under current law, however, having a sexual relationship with an adult, including an adult college student, is not criminal. There is also a distinction between secondary and college students in claims 56. William A. Kaplin, A Typology and Critique of Title IX Sexual Harassment Law After Gebser and Davis, 26 J.C. & U.L. 615, 628 (2000) ("Elementary/secondary education and higher education differ substantially from one another in structure and mission. The ages and maturity levels of students can also vary dramatically from one level to the other, leading to differences in perspective on questions about when conduct is sexual and when sexual conduct is consensual.")- 57. See, e.g., IND. CODE § 20-33-2-6 (2007). Indiana law requires students to begin school during the year the student turns seven years old. Id. If a student turns seven while in first grade, the student would turn thirteen during seventh grade, consequently entering seventh grade at age twelve. 58. Margaret H. Mack, Regulating Sexual Relationships Between Faculty and Students, 6 Mich. J. Gender & L. 79, 82-84 (1999). 59. Phyllis Coleman, Sex in Power Dependency Relationships: Taking Unfair Advantage of the "Fair" Sex, 53 ALBANY L. Rev. 95, 95-96 (1988). 264 INDIANA LAW REVIEW [Vol. 42:257 involving peer-on-peer sexual harassment.^^ In Davis v. Monroe County Board ofEducation,^^ the Court held that a school may be liable under Title IX for peer- on-peer sexual harassment.^^ The Court emphasized the differences in the amount of control a school can exert over an employee as compared to a student.^^ The student in Davis was a fifth-grade girl who was allegedly harassed by a classmate who attempted to touch her breasts and genitals.^"^ Although this case was decided in the context of peer-on-peer sexual harassment in an elementary school, the Court explicitly noted the applicability of its holding to colleges, explaining that "[a] university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy. . . ."^^ In light of this standard and the differences between a college and secondary or elementary school, a college is less liable for peer-on-peer sexual harassment than elementary and secondary schools. ^^ B. Secondary Students and Teachers Versus Employers and Employees Just as there is a difference in sexual relationships between college professors and students and secondary teachers and students, there is also a difference in the relationship between secondary teachers and students and employers and employees. Title VII of the Civil Rights Acts of 1964^^ provides the employee's primary protection from discrimination, including sexual harassment.^^ When deciding whether conduct constitutes sexual harassment, the Equal Employment Opportunity Commission looks at the whole record and at the totality ofthe circumstances, including "the nature ofthe sexual advances and the context in which the alleged incidents occurred."^^ Relationships between students and teachers are different from the employment context involved in Title Vn.^^ Children are not required to work, 60. See Kaplin, supra note 56, at 628-29. 61. 526 U.S. 629(1999). 62. Id. at 643 ("We consider here whether the misconduct identified in Gebser—deliberate indifference to known acts ofharassment—amounts to an intentional violation ofTitle IX . . . when the harasser is a student rather than a teacher. We conclude that, in certain limited circumstances, it does."). 63. Id. at 645 ("[A] recipient's damages liability [is limited] to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs."); see Kaplin, supra note 56, at 628-29. 64. Davis, 526 U.S. at 633. 65. Id. at 649. 66. See Kaplin, supra note 56, at 629. 67. See 42 U.S.C. § 2000(e) (2006). 68. Brianne J. Gorod, Rejecting "Reasonableness": A New Look at Title VII's Anti- Retaliation Provision, 56 AM. U. L. REV. 1469, 1474 (2007). 69. 29 C.F.R. § 1604.11(b) (1999). 70. See Amy K. Graham, Note, Gebser v. Lago Vista Independent School District.- The Supreme Court's Determination that Children Deserve Less Protection than Adultsfrom Sexual 2009] DRAWING A LINE ON THE BLACKBOARD 265 but compulsory education laws exist in all fifty states.^' These laws range from Harassment, 30 LOY. U. Cffl. L.J. 551, 588-96 (1999). 71. Ala. Code § 16-28-3 (2001) (compulsory between seven and sixteen); Alaska Stat. § 14.30.010 (2006) (compulsory between seven and sixteen); ARIZ. Rev. Stat. Ann. § 15-802 (2002 & Supp. 2007) (compulsory between six and sixteen); ARK. CODE Ann. § 6-18-201 (West 2004) (compulsory between five and seventeen); Cal. Educ. Code § 48200 (2006) (compulsory between six and eighteen); COLO. REV. Stat. Ann. § 22-33-104 (West 2005 & Supp. 2007) (compulsory between seven and seventeen); CONN. Gen. Stat. Ann. § 10-184 (West 2002) (compulsory between five and eighteen); DEL. CODE. Ann. tit. 14, § 2701 (2006) (compulsory between five and sixteen); FLA. STAT. ANN. § 1003.21 (West 2004 & Supp. 2008) (compulsory between six and sixteen); Ga. Code Ann. § 20-2-690.1 (West 2003 & Supp. 2007) (compulsory between six and sixteen); Haw. Rev. Stat. Ann. § 302A-1132 (LexisNexis 2006) (compulsory between six and eighteen); IDAHO CODE ANN. § 33-202 (2006) (compulsory between seven and sixteen); 105 III. Comp. Stat. Ann. § 5/26-1 (West 2006) (compulsory between seven and seventeen); IND. CODE § 20-33-2-6 (2007) (compulsory between seven and eighteen); IowaCode Ann. § 299.1 (West 1988 & Supp. 2008) (compulsory between six and sixteen); KANSAS Stat. Ann. § 72- 1 1 1 1 (2002) (compulsory between seven and eighteen); Ky. Rev. Stat. Ann. § 159.010 (West 2006) (compulsory between six and sixteen); La. Rev. Stat. Ann. § 17:221 (2001) (compulsory between seven and eighteen); Me. Rev. Stat. Ann. tit. 20-A § 5001-A (2008) (compulsory between seven and seventeen); Md. Code Ann., Educ. § 7-301 (West 2002 & Supp. 2007) (compulsory between five and sixteen); Mass. Gen. Laws Ann. ch. 76, § 1 (West 1996) (ages set by board of education, compulsory to fourteen); MiCH. COMP. Laws Ann. § 380.1561 (West 2005) (compulsory between six and sixteen); Minn. Stat. Ann. § 120A.22 (West 2000 & Supp. 2008) (compulsory between seven and sixteen); MiSS. CODE Ann. § 37-13-91 (West 2000 & Supp. 2007) (compulsory between six and seventeen); Mo. ANN. Stat. § 167.031 (West 2000 & Supp. 2008) (compulsory between seven and a district-set compulsory attendance age); Mont. CodeAnn. § 20-5-102 (2007) (compulsory between seven and sixteen); Neb. Rev. Stat. § 79-201 (2003 & Supp. 2006) (compulsory between seven and eighteen); Nev. Rev. Stat. Ann. § 392.040 (West 2006 & Supp. 2008) (compulsory between seven and eighteen); N.H. Rev. Stat. Ann. § 193:1 (1 999 & Supp. 2007) (compulsory between six and eighteen); N.J. Stat. Ann. § 18A:38-25 (West 1999) (compulsory between six and sixteen); N.M. Stat. Ann. § 22-12-2 (West 2003 & Supp. 2007) (compulsory up to eighteen); N.Y. EDUC. Law § 3205 (McKinney 2001 & Supp. 2008) (compulsory between six and sixteen); N.C. Gen. Stat. Ann. § 1 15C-378 (West 2000 & Supp. 2007) (compulsory between seven and sixteen); N.D. Cent. Code § 15.1-20-01 (2003) (compulsory between seven and sixteen); OHIO Rev. Code Ann. § 3321.01 (West 2005 & Supp. 2008) (compulsory between six and eighteen); Okla. Stat. Ann. tit. 70, § 10-105 (West 2005 & Supp. 2008) (compulsory between five and eighteen); Or. Rev. Stat. Ann. § 339.010 (West 2003) (compulsory between seven and eighteen); 24 Pa. Stat. Ann. § 13-1326 (West 1992) (compulsory between eight and seventeen); R.I. GEN. Laws § 16-19-1 (2006 & Supp. 2008) (compulsory between six and sixteen); S.C. CODE ANN. § 59-65-10 (2004) (compulsory between five and seventeen); S.D. CODMED LAWS § 13-27-1 (2004 & Supp. 2008) (compulsory between six and sixteen); Tenn. Code Ann. § 49-6-3001 (West 2006) (compulsory between six and seventeen); Tex. Educ. Code Ann. § 25.085 (Vernon 2006 & Supp. 2008) (compulsory six and eighteen); Utah Code Ann. § 53A-1 1-101 (West 2004 & Supp. 2008) (compulsory between six and eighteen); Vt. Stat. Ann. tit. 16, § 1 121 (2007) (compulsory between six and sixteen); Va. Code 266 INDIANA LAW REVIEW [Vol. 42:257 requiring children ages five to eighteen to attend school, to requiring school attendance for children between the ages of seven and sixteen, and many other possible combinations.^^ Although some of these laws do not require children to attend school past the age of sixteen, the importance of a high school degree is a strong incentive to complete school. This difference between the workplace and schools is important and sobering. An employee can arguably find another place to work to avoid sexual harassment. A student cannot leave his or her school and will often be in contact with the abuser over multiple years.^^ One author explained the difference between school and the workplace with an analysis of services provided in the respective environments.^"^ Students, through their parents, pay for the services schools provide, while in the workplace employers pay for the services provided by employees.^^ These service-provided-relationships flow in different directions, which greatly influences each relationship.^^ A school's purpose is to educate its students and an employer's purpose is to run a successful business.^^ The author then claims that "[s]ex-based harassment in the educational context fundamentally frustrates and interferes with the purpose of the teacher-student relationship."^^ A school must create a supportive environment that helps facilitate its purpose of educating its students. Disrupting that environment results in "a reduction in the educational benefit that the student receives" and lowers the value of services provided.^^ Another approach that highlights the differences between a school and the Ann. § 22.1-254 (2006) (compulsory between five and eighteen); Wash. Rev. Code Ann. § 28A.225.010 (West 2006) (compulsory between eight and eighteen); W. Va. CodeAnn. § 18-8-la (West 2002) (compulsory between six and sixteen); Wis. STAT. Ann. § 1 18.15 (West 2004 & Supp. 2007) (compulsory between six and eighteen); Wyo. Stat. Ann. § 21-4-102 (2007) (compulsory between seven and sixteen). All of the above ages are subject to several exceptions. 72. S'^e statutes cited 5M/7ra note 7 1 . 73. See Angela Duffy, Can a Child Say Yes? How the Unwelcomeness Requirement Has Thwarted the Purpose of Title IX, 27 J.L. & Educ. 505, 509 (1998) ("[CJhildren do not have a choice about whether to attend school, and most cannot choose which school they attend. . . . [I]n the Title VII context, although still not fair, it is conceivably far easier for an employee to change jobs than it is for a student to change schools."); Mary M. v. N. Lawrence Cmty. Sch. Corp., 131 F.3d 1220, 1226 (7th Cir. 1997) ("[A]s economically difficult as it may be for adults to leave a hostile workplace, it is virtually impossible for children to leave their assigned school."); see also Carrie N. Baker, Comment, Proposed Title IX Guidelines on Sex-Based Harassment ofStudents, 43 Emory L.J. 271, 292 (2004) ("[S]tudents ... are required to attend school and may not have alternatives to the school where they are harassed."). 74. See Baker, supra note 73, at 290-91. 75. Id. at 290. 76. Mat 290-91. 77. Id. 78. Id. at 291. 79. Id. (quoting Ronna Greff Schneider, Sexual Harassment andHigher Education, 65 Tex. L. Rev. 525,540(1987)). 2009] DRAWING A LINE ON THE BLACKBOARD 267 workplace compares the relationship between students and teachers to the relationship between children and parents.^^ Both relationships involve "custodial and supervisory control" over a child.^^ It is universally acknowledged that the child-parent relationship does not include the sexual abuse of the child or negligently exposing the child to abuse.^^ Clearly there is no question of welcomeness involved in parent-child sexual relationships. However, the question is raised in teacher-student relationships even though the relationship encompasses many of the same features of a parent-child relationship.^^ The similarities between teacher-student relationships and parent-child relationships emphasize how teacher-student relationships differ from employer- employee relationships. Employers do not have custodial duties over their employees, nor do they wield the extensive power over their employees that teachers possess. The power imbalance in teacher-student relationships is the reason that a student cannot consent to a sexual relationship. The power a teacher exercises over a student aids the teacher in taking advantage of the student.^"^ The dissent in G^/j^^r recognized this, insightfully observing that "[a]s a secondary school teacher, Waldrop exercised even greater authority and control over his students than employers and supervisors exercise over their employees. His gross misuse of that authority allowed him to abuse his young student's trust."^^ This same observation has been made by authors who advocate for stronger protection of students and is a primary reason why the teacher-student relationship must be protected in such a way that the welcomeness of student- teacher sexual relationships is never questioned.^^ in. The Courts' and the Department of Education's Current Approaches to Welcomeness and Students A. The Courts An excellent example of why the issue of a student's welcomeness is important is Mary M. v. North Lawrence Community School Corp}^ In this case, a thirteen-year-old eighth grade student and a cafeteria employee engaged in a flirtatious relationship that culminated in the student and employee leaving 80. DeMitchell, supra note 43, at 50. 81. Mat 35. 82. Id. 83. Id. at 50. 84. Id. at 34 ("Sexually abusive teachers . . . misuse the authority of their positions when they sexually molest children under their control."). 85. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 299 (1998) (Stevens, J., dissenting). 86. DeMitchell, supra note 43, at 33 ("[S]chool employees are aided in their misconduct by the power and authority they have over children given to them by virtue of their school employment and its attendant in loco parentis status."). 87. 131 F.3d 1220 (7th Cir. 1997). 268 INDIANA LAW REVIEW [Vol. 42:257 school to have sex.^^ The district court held that it was appropriate for a jury to consider whether the conduct was unwelcome when reaching its verdict.^^ The student appealed the case to the Seventh Circuit,^^ which specifically addressed the issue of welcomeness.^^ After finding that an eighth grade student was an elementary student in the particular school district, the court held that "[w]elcomeness is an improper inquiry to be made in Title DC cases involving sexual discrimination of elementary school children."^^ The Seventh Circuit engaged in a lengthy discussion of welcomeness and elementary school students, citing several reasons why welcomeness should not be a question of fact in Title IX cases.^^ These reasons include concerns over subjecting a young student to intense scrutiny and the differences between Title Vn and Title IX cases.^"^ The court supported its holding by listing several differences that exist between the classroom and the workplace, including the greater control and influence teachers have over students.^^ The court also emphasized the greater harm that results from sexual harassment in the classroom when compared to sexual harassment in the workplace. "[T]he harassment has a greater and longer lasting impact on its younger victims, and institutionalizes sexual harassment as accepted behavior."^^ The court also noted the affect sexual harassment has on the development of students' intellectual potential, the fact that schools act in loco parentis while employers do not, and that employees are "older and (presumably) know how to say no to unwelcome advances, while children may not even understand that they are being harassed."^^ While all of these reasons seem to apply to secondary students with equal force, the Seventh Circuit explicitly declined to address "whether secondary school students can welcome sexual advances in harassment claims arising under Title IX."^^ Disagreement exists among courts as to whether age of consent laws make it a legal impossibility for a student under the age of consent to welcome the harassing conduct. The Seventh Circuit in MaryM. acknowledged that there was no case on point as to the capacity of an elementary student to welcome sexual conduct and consequently looked to criminal law.^^ Indiana, the state in which the sexual relationship between the student and teacher occurred, set the age of 88. /£/. at 1221-23. 89. Mary M. v. N. Lawrence Cmty. Sch. Corp., 951 F. Supp. 820, 826-27 (S.D. Ind.), rev'd, 131 F.3d 1220 (7th Cir. 1997). 90. Mary M, 131 F.3d at 1221. 91. See id. 92. Id. at 1225. 93. Id. at 1226-27. 94. Id. 95. Id. at 1226 (citing Davis v. Monroe County. Bd. ofEduc, 74 F.3d 1 186, 1 193 (1 1th Cir. 1996), rev'd, 120 F.3d 1390 (1 1th Cir. 1997) (en banc)). 96. Id. 97. /J. at 1226-27. 98. Id. at 1225 n.6. 99. /^. at 1227. 2009] DRAWING A LINE ON THE BLACKBOARD 269 consent at sixteenJ^° The court concluded that "[i]f elementary school children cannot be said to consent to sex in a criminal context, they similarly cannot be said to welcome it in a civil context. To fmd otherwise would be incongruous." ^^^ This reasoning is consistent with the Department ofEducation' s Guidance discussed below. However, other courts do not apply criminal age of consent laws to civil litigation. The United States District Court for the Western District of Oklahoma, when considering a case involving a fourteen-year-old eighth grade student who "became sexually involved with her basketball coach," decided that "the criminality of [the alleged harasser's] actions, standing alone, have no bearing on the [defendant's] liability."^^^ The Northern District of Alabama has also identified the inconsistency in which courts address civil liability when, under criminal law, the student was legally incapable of consenting to a sexual relationship: "The court finds other districts have taken unreconcilable [sic] positions on the question of whether the inability to consent under criminal law renders voluntary actions non-consensual under federal civil law."^^^ State courts have also considered what weight the seemingly "voluntariness" of the sexual conduct between a student and teacher should have on civil liability. In Christensen v. Royal School District No. 160,^^"^ the Supreme Court of Washington addressed the question of whether a student's voluntary participation in a sexual relationship can be an affirmative defense in a negligence action. '^^ A teacher and thirteen-year-old student engaged in a sexual relationship with the sexual activity occurring in the teacher's classroom. ^^^ The court decided that voluntariness or consent was not an affirmative defense because the societal interests embodied in the criminal laws protecting children from sexual abuse should apply equally in the civil arena when a child seeks to obtain redress for harm caused to the child by an adult 100. Id. 101. Id. Other courts have also concluded that age of consent laws should have great bearing on the issue of welcomeness. See Bostic v. Smyrna Sch. Dist., No. 01-0261 KAJ, 2003 WL 723262, at *6 (D. Del. Feb. 24, 2003) ("It would be a bizarre rule indeed that, for purposes of civil liability, would call a teenager's 'consent' sufficient to make a relationship 'welcome' and thus not a basis for civil liability, when the very same relationship is rape under the exacting standards for criminal liability."), 102. R.L.R. V. Prague Pub. Sch. Dist. 1-103, 838 F. Supp. 1526, 1527, 1534 (W.D. Okla. 1993). See Benefield v. Bd. of Trs. of the Univ. of Ala. at Birmingham, 214 F. Supp. 2d 1212, 1217-18 (N.D. Ala. 2002) (quoting R.L.R. with approval and rejecting the plaintiff s argument that "the sex in question could not be consensual because the plaintiff was below the age of consent at the time the acts in question occurred"). 103. Benefield, 214 F. Supp. 2d at 1217 n.l2. 104. 124 P.3d 283 (Wash. 2005). 105. /J. at 285. 106. Id. 270 INDIANA LAW REVIEW [Vol. 42:257 perpetrator of sexual abuse or a third party in a position to control the conduct of the perpetrator. ^^^ The court also rejected any claim that the student had a duty to protect herself from abuse by a teacher because it conflicted with Washington law that "a school district has an enhanced and solemn duty to protect minor students in its care."^^^ Other state courts have reached similar conclusions that evidence of consent or voluntariness is as inadmissible in a civil case as in a criminal case when a child is under the age of consent. ^^^ B. The Department ofEducation Sexual Harassment Guidance The Department of Education describes itself as "the agency of the federal government that establishes policy for, administers, and coordinates most federal assistance to education."^ ^^ Its mission "is to serve America' s students—to ensure that all have equal access to education and to promote excellence in our nation's schools."^ ^^ One of the ways in which the Department of Education accomplishes its mission is by "identif[ing] the major issues and problems in education and focus[ing] national attention on them" by "mak[ing] recommendations for education reform."^ ^^ In 2001, the Department of Education published "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties" (Guidance). ^^^ This Guidance replaced its 1997 predecessor which was published prQ-Gebser^^"^ and prQ-Davis?^^ The stated purpose of the Guidance is "to provide the principles that a school should use to recognize and effectively respond to sexual harassment of students in its program as a condition of receiving [fjederal financial assistance."^ ^^ In other words, the Guidance advocates policies for schools to follow in order to safeguard the federal funds they receive. The Guidance defines sexual harassment as 107. Id. at 286. 108. Id. 109. See Doe ex rel Roe v. Orangeburg County Sch. Dist. No. 2, 5 18 S.E.2d 259, 262 (S.C. 1999) (holding that evidence of the plaintiffs willing participation in a sexual relationship is inadmissible when the plaintiff is under the age of consent); Wilson v. Tobiassen, 777 P.2d 1379, 1384 (Or. Ct. App. 1989) (holding that "a person's incapacity to consent under [the Oregon criminal code] extends to civil cases"). 110. United States Dep't of Educ, An Overview of the U.S. Department of Education, http://www.ed.gov/about/overview/focus/whattoc.html?src=ln (last visited Mar. 12, 2009). 111. United States Dep't of Educ, What Is the U.S. Department of Education?, http://www.ed.gOv/about/overview/focus/what.html#whatis (last visited Mar. 12, 2009). 112. United States Dep't of Educ, WTiat Does the Department of Education Do?, http://www.ed.gov/about/overview/focus/what_pg2.html (last visited Mar. 12, 2009). 113. Dep't of Educ, Sexual Harassment Guidance, supra note 17, at i. 1 14. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). 1 15. Davis V. Monroe County Bd. of Educ, 526 U.S. 629 (1999). 1 16. Dep't of Educ, Sexual Harassment Guidance, supra note 17, at i. 2009] DRAWING A LINE ON THE BLACKBOARD 27 1 "unwelcome conduct of a sexual nature."^ ^^ It can include "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature."^ ^^ The Guidance then links sexual harassment to sex discrimination by explaining that harassment "can deny or limit, on the basis of sex, [a] student's ability to participate in or to receive benefits, services, or opportunities in the school's program. Sexual harassment of students is, therefore, a form of sex discrimination prohibited by Title IX under the circumstances described in this guidance."^ ^^ Regarding welcomeness, the Guidance states that "[c]onduct is unwelcome if the student did not request or invite it and 'regarded the conduct as undesirable or offensive.' Acquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome."^^^ Especially relevant to the issue of welcomeness and secondary students, the Guidance then explains that [i]f 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. Accordingly, [the] OCR [Office of Civil Rights] will consider the age of the student, the nature of the conduct involved, and other relevant factors in determining whether a student had the capacity to welcome sexual conduct. ^^^ After describing how it determines when a student has the capacity to welcome sexual conduct, the Guidance divides students into three categories: elementary, secondary, and postsecondary.'^^ Elementary students unequivocally cannot consent to a sexual relationship with a teacher: "OCR [the Office of Civil Rights] will never view sexual conduct between an adult school employee and an elementary school student as consensual." ^^^ Regarding relationships involving postsecondary students, there is no mention of a presumption of consent or non-consent; rather, the Guidance states that "OCR will consider these factors in all cases involving postsecondary students. "^^"^ The issue of consent is clouded with respect to secondary students. "[T]here will be a strong presumption that sexual conduct between an adult school employee and a [secondary] student is not consensual." ^^^ The "OCR will consider a number of factors in determining whether a school employee's sexual 117. Id. at 2. 118. Id. 119. Id. 120. Id. at 7-8 (quoting Does v. Covington Sch. Bd. of Educ, 930 F. Supp. 554, 569 (M.D. Ala. 1996)). 121. /J. at 8. 122. Id. 123. Id. 1 24. Id. The factors referred to are "the age of the student, the nature of the conduct involved, and other relevant factors." Id. 125. Id. 272 INDIANA LAW REVIEW [Vol. 42:257 advances or other sexual conduct could be considered welcome," '^^ with respect to the secondary students subject to this presumption. The factors that will be considered in determining whether the relationship between the secondary student and teacher is welcome include "the nature of the conduct and the relationship of the school employee to the student" and "whether the student was legally or practically unable to consent to the sexual conduct in question." The student's age or certain types of disabilities will thus be 1 97 important. The Guidance then lays out a totality of the circumstances test, outlining "types of information [that] may be helpful in resolving the dispute" over whether harassment occurred or whether it was welcome. '^^ The types of relevant information include: witness statements; "[e]vidence about the relative credibility of the allegedly harassed student and the alleged harasser"; whether the alleged harasser had harassed others; whether the student previously made false allegations; the student's reaction after the alleged harassment; whether the student filed a complaint or otherwise protected the conduct after the alleged harassment; and other contemporaneous evidence. ^^^ rv. Problems with Evaluating Whether a Secondary Student "Welcomed" a Sexual Relationship with a Teacher There are many problems with the courts' and the Department ofEducation' s approach to welcomeness and secondary students. The Chancellor court identified several flaws in the Guidance itself and other courts have identified problems with engaging in a welcomeness inquiry when students are involved. Among these criticisms, the most pressing are: (1) the problem with equating consent with the capacity to consent; ^^^ (2) the problems that arise when applying Title Vn standards to Title IX cases; ^^^ and (3) the problems associated with subjecting secondary students, some as young as fourteen, to the intense scrutiny of a welcomeness inquiry. '^^ A. Consent Versus Capacity to Consent The Guidance pays lip service to the principle of legal capacity to consent. ^^^ The Guidance states that "[w]hether the student was legally or practically unable 126. Id. 127. Id. 128. /J. at 9. 129. Id. 130. See Chancellor v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 707 (E.D. Pa. 2007); see also Drobac, Developing Capacity, supra note 47, at 57-59 (arguing that "[a]dolescents are, in every way, embryonic human adults. Since we cannot tell whether an adolescent behaves maturely at any given time, we cannot tell which 'consent' we should treat as legally binding"). 131. See Chancellor, 501 F. Supp. 2d at 707. 132. Duffy, supra note 73, at 5 10. 133. Dep't of Educ, Sexual Harassment Guidance, supra note 17, at 8. 2009] DRAWING A LINE ON THE BLACKBOARD 273 to consent to the sexual conduct in question" is a factor to be used to determine "whether a school employee's sexual advances or other sexual conduct could be considered welcome." ^^"^ Whether a student was legally unable to consent should not be a factor in determining whether the relationship can be considered welcome. If a student is unable to legally consent to the relationship, the relationship should be automatically considered unwelcome. When considering this flaw, it is important to remember that consent is very closely related to the issue of welcomeness. Welcomeness is an element of a prima facie case of sexual harassment. '^^ Indeed, the Guidance defines sexual harassment as "unwelcome conduct of a sexual nature." '^^ Although the Guidance does not explicitly state how it will determine whether a student was legally able to consent to the alleged sexual conduct, it appears that this age will be determined in light of statutory rape statutes or age of consent statutes in the jurisdiction in which the sexual conduct occurred. These laws are inconsistent across the states, ^^^ and using the laws as a marker for when a student can consent to a sexual relationship with a teacher would result in the possibility that any high school student, from freshman year through senior year, could have the legal capacity to consent to sex.^^^ The age at which a student is protected would be entirely dependent on the jurisdiction in which she lives. '^^ While it is true that this already occurs across the country due to the varied laws, the severity of the circumstances that surround sexual relationships between students and teachers require a different approach. A bright line rule that protects all secondary students, regardless of relevant age of consent laws, easily can be achieved by making all students incapable of consenting to a sexual relationship with a teacher. The Guidance is not binding on courts, as noted by the court in Chancellor}^^ The Guidance "re-grounds [the] standards in the Title IX regulations, distinguishing them from the standards applicable to private litigation for money damages." ^"^^ However, it can affect how courts view the issue of welcomeness and the capacity to consent because it is offered, by its very title, as guidance. Additionally, because it is meant as a guide to schools, the Guidance could greatly affect how school districts address sexual harassment. Therefore, because of its great influence, the Guidance should be revised. 134. Id. 135. See Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 467-68 (8th Cir. 1996), rev'd on other grounds, 171 F.3d 607 (8th Cir. 1999). 1 36. Dep't of Educ, Sexual Harassment Guidance, supra note 1 7, at 2. 137. For further discussion, see supra Part I.B. 138. Professor Drobac acknowledges the same result when discussing sexual harassment of minors under Title VII. Drobac, Developing Capacity, supra note 47, at 7-8. 139. Id. 140. 501 F. Supp. 2d 695, 707 n.l3 (E.D. Pa. 2007) ("The DOE's Sexual Harassment Guidance provides just that: guidance. It is not binding on this Court, but rather a resource on the DOE's position.") 141 . Dep't of Educ, Sexual Harassment Guidance, supra note 17, at i. 274 INDIANA LAW REVIEW [Vol. 42:257 B. Problems with Applying Title VII Welcomeness Jurisprudence to Title IX The numerous differences between a Title Vn employment discrimination case and a Title IX school discrimination case make the direct application of Title vn standards of welcomeness to Title EX cases unworkable. In a successful Title Vn hostile work environment harassment claim, a plaintiff must show that: "(1) the employee belonged to a protected group, (2) the employee was the subject of unwelcome sexual harassment, (3) the harassment complained of was based on sex, [and] (4) the harassment was sufficiently severe to unreasonably interfere with work performance or create an intimidating, hostile, or offensive work environment."*"^^ In Title Vn cases, the issue of whether the allegedly harassed employee has the capacity to welcome sexual harassment rarely arises. Instead, it is a question of whether the employee actually welcomed the specific alleged harassment. ^"^^ However, in some Title vn cases, courts have expressed mild concern over the capacity to consent when minor employees are involved. The Seventh Circuit stated in Doe v. Oberweis Dairy^^ that courts "should defer to the judgment of average maturity in sexual matters that is reflected in the age of consent in the state in which the plaintiff is employed. That age of consent should thus be the rule of decision in Title Vn cases."'"^^ While the Seventh Circuit's statement in Oberweis Dairy would appear to make welcomeness in Title VII cases involving minors an issue of capacity to consent, the Seventh Circuit did not end its analysis there. The court explained in dicta that although many problems exist with inquiring about an individual minor's maturity, "a jury should be able to sort out the difference between an employer's causal contribution to the statutory rape by its employee of a 16-year- old siren (if that turns out to be an accurate description of [the plaintiff]) and to similar conduct toward, say, a 12-year-old."*'^^ The court envisioned a jury applying this difference when determining damages. Pursuant to the Seventh Circuit's view of teenage sexuality, a teenaged student's damage award for sexual harassment could be reduced simply because current fashion includes body-baring clothing, which could qualify the student as a "siren." While the Seventh Circuit's troubled conclusion has no effect on criminal 142. Sara L. Johnson, Annotation, When is Work Environment Intimidating, Hostile, or Ojfensive, so as to Constitute Sexual Harassment in Violation of Title VII of Civil Rights Act of 1964, as Amended {42 U.S.C.A. §§ 2000e et seq.), 78 A.L.R. FED. 252 (1986). 143. See Chancellor, 501 F. Supp. 2d at 707 ("[UJnder Title VII, the question is not whether the subordinate employee had the capacity to welcome the superior's sexual advances, but rather whether the subordinate in fact did so."). 144. 456 F.3d 704 (7th Cir. 2006). 145. /5er, 524 U.S. at 290-91. 188. Graham, 5M/7ra note 70, at 586-87. 189. See Gebser, 524 U.S. at 274. The Gebser decision was announced on June 22, 1998. 190. See Drobac, / Can 't to I Kant, supra note 176, at 730; see also id. at 730 n.282. 191 . See Drobac, Developing Capacity, supra note 47, at 59. Professor Drobac supports the age of majority to be set to twenty-one years of age, but acknowledges that this is politically impossible. She advocates the age of consent to be set to eighteen years of age at the youngest. 192. See id. ("If we raise the age of consent, however, we may preclude adolescents from engaging in the experimentation that they need to build wisdom."). 2009] DRAWING A LINE ON THE BLACKBOARD 283 or her teacher when the teacher is employed at the student's school. By limiting the breadth of this clear-line rule to include only relationships with teachers, the zone of protection is limited to an area of undeniable importance. Conclusion Congress created Title DC to prevent discrimination in schools receiving federal funds and to protect individuals from discrimination. ^^^ The enactment of Title IX is best known for its affects on athletics, specifically the drastic increase in female participation in athletics.*^'* In the last two decades. Title IX's application to sexual relationships between students and teachers and the relevant standards have been decided by the Supreme Court. ^^^ The Supreme Court did not take advantage of the opportunity to protect high school students, ^^^ and courts and the Department of Education have not taken the necessary additional steps. The protection of children should be of utmost concern. There are too many examples of teacher-student sexual relationships, from case law and popular media, to ignore the problem of teachers taking advantage of students. ^^^ Students attend school to learn and should never be subjected to abuse. Additionally, a parent should never have to worry that his or her fifteen-year-old child, however mature and knowledgeable the child seems, could someday be scrutinized to a damaging degree, questioning the child's clothes, maturity, and 193. Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). 194. Suzanne E. Eckes, Title IX and High School Opportunities: Issues ofEquity On and Off the Court, 21 Wis. WOMEN'S L.J. 175, 175 (2006) ("For high school girls, the number who participated in sports rose by approximately 850%, from 294,015 in 1972 to over 2.8 million in 2002." (citing Ellen Staurowsky, Title IX in its Third Decade: The Commission on Opportunity in Athletics, 2 Ent. L. 70, 72 (2003))). 195. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). 196. See Gebser, 524 U.S. at 306 (the dissent stated that "the Court ranks protection of the school district's purse above the protection of immature high school students"). 197. See, ^.g., Eleanor Chute, Ex-Moon Area Teacher to Stand Trial in Sex Case, PITTSBURGH Post-Gazette, Jan. 23, 2008, at B-3 (twenty-six-year-old teacher admitted having sex with fourteen-year-old freshman); Jim O'Neill, His First Day in Court: Bail Setfor Teacher in Sexual Assault, Star-Ledger, Jan 31, 2008, at 27 (thirty-seven-year-old teacher and girls soccer coach accused of sexual relationship with seventeen-year-old student); Jennifer Radcliffe, Parents Updated on Teacher Arrest: Spring District Mails Out Letters in Latest Sex Case, Hous. Chron., Jan 9, 2008, at Bl (reporting on three teachers in same Texas school district in which one teacher was accused of asking a student where to buy marijuana and later beginning sexual relationship with him; one teacher was accused of inappropriately touching an eighteen-year-old student in a school bam; and one teacher was accused of performing oral sex on a sixteen-year-old student inside a locked classroom). In this last case, one can almost hear the defense that perhaps students in this particular school district are extremely mature and seek out sexual relationships with teachers. 284 INDIANA LAW REVIEW [Vol. 42:257 any other relevant fact under a "totality of the circumstances" after the child has endured a sexual relationship with a teacher. A solution to this problem is to conclude that all sexual relationships between teachers and secondary students are unwelcome. This solution prevents students from the traumatic experience of trying to prove they did not welcome the relationship, and it prevents teachers and school districts from avoiding liability if a student believes the relationship was welcome. Even if a student believes she welcomed the relationship, the law will consider this irrelevant because a student does not have the capacity to welcome sexual conduct. If this is too drastic a solution for some, then at least age of consent laws should control and any relationship a teacher engages in with a student under that age of consent should be conclusively unwelcome in a Title IX claim. This proposed solution is not much to ask. While the term "students" is used throughout this Note, these "students" are children who do not understand much about the world. '^^ This proposal does not take much protection from school districts because students would still have to show actual knowledge and deliberate indifference. ^^^ This proposal attempts to protect the child, the secondary high school student, who may find herself in the middle of a Title IX case. After all, protecting students, nurturing their development and growth, is the responsibility of teachers. When that fails, protection should be in place. A student like Jeanette Chancellor, who had a long term sexual relationship with her band teacher and consequently attempted suicide and was hospitalized,^^^ should never have to explain that she did not welcome the sexual harassment perpetrated by her twenty-nine year old teacher. 198. Indeed, the Author remembers the reaction of adolescent boys when the infamous Mary Kay LeToumeau case hit the media. Many boys expressed the opinion that the sixth grade twelve- year-old boy was lucky to be in a sexual relationship with an adult female, and ridiculed the idea that they would come forward if they were so fortunate. See Angela Mosconi, Report: Cradle-Rob Teacher Threatened to Castrate Teen Lover, N.Y. POST, Feb 22, 1999, at 2 (recounting some of the details of the relationship between LeToumeau and the young student). 199. See Gebser, 524 U.S. at 274. 200. Chancellor v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695, 699-704 (E.D. Pa. 2007).