Personal Liability of School Officials Under § 1983 Who Ignore Peer Harassment of Gay Students
Jeffrey I. Bedell | 2003 U. Ill. L. Rev. 829
The harsh reality of peer harassment of students based on perceptions of sexual orientation is an ever-growing problem in America’s K–12 schools. Bedell delves into the systemic problems in deterring this abuse and identifies that school officials are tacitly approving, vis-à-vis inac-tion, the harassment.
After identifying the problem, the author examines Title IX and finds—based in large part on courts’ interpretations of Title IX through prior interpretations of Title VII—unavailable to students a cause of action against school officials or peers for harassment on the basis of sexual orientation. Bedell also examines state law and finds inadequate protec-tion for students facing this harassment.
Bedell investigates the scope of bringing an action under § 1983 to assess potential for liability at the top of the food chain—the school offi-cials and school board. The author argues that school officials who do nothing to stop peer harassment based on sexual orientation are violating students’ rights under the Equal Protection Clause of the Fourteenth Amendment and could be personally liable under § 1983. The author recommends that states should pass comprehensive antidiscrimination and bullying statutes to end the anti-gay harassment of students by their peers in school.