Departments of Justice, Education Misquote the Supreme Court

By May 10, 2013

Footnote 8 on page 5 of the May 9, 2013, letter from the Departments of Justice and Education to the University of Montana states:

While the Supreme Court in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), requires deliberate indifference by the recipient to "severe and pervasive" harassment of which a recipient had actual knowledge to establish liability for damages under Title IX, shortly after those decisions were issued, OCR clarified in its 2001 Guidance that a recipient’s failure to respond promptly and effectively to severe, persistent, or pervasive harassment of which it knew or should have known could violate Title IX for purposes of administrative enforcement. See Davis, 526 U.S. at, 633, 650; Revised Sexual Harassment Guidance i-vi (2001); see also U.S. Compl.-in- Intervention in Doe v. Anoka-Hennepin Sch. Dist. No. 11, No. 11-cv-01999, at 2, 5, 18, 21, 22 (Mar. 5, 2012) (alleging severe, pervasive, or persistent harassment in complaint asserting Title IX and Title IV claims). 

The first sentence of this paragraph contains a misleading quote. The phrase "severe and pervasive" never appears in the Supreme Court’s decision in Davis v. Monroe County Board of Education.  

Why is this significant? In Davis, when the Court discusses the standard for peer-on-peer harassment that triggers a school’s Title IX obligations, it each time uses the phrase "severe, pervasive, and objectively offensive." Indeed, the Court uses this exact formulation five times in its majority opinion, on pages 633, 650, 651, 652, and 654. This is not the entirety of the Davis standard for discriminatory harassment, but objective offensiveness is a necessary element of that standard. Nowhere does the Court suggest that "severe and pervasive" is the complete standard. 

By misquoting Davis to leave out the Court’s clear and repeated requirement of objective offensiveness, the Departments of Justice and Education have made it easier for themselves to justify leaving out the requirement of objective offensiveness from their already-deficient definition of harassment. While lawyers and bureaucrats can make mistakes about the law like anyone else, this misquote suggests a purposeful effort to obfuscate the law on this issue in order to justify a policy that is plainly unconstitutional.

Cases: Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes