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FindLaw Forum: The problem with calling someone 'Monica' By Joanna L. Grossman FindLaw Columnist Special to CNN.com

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(FINDLAW) -- Inbal Hayut -- then a student at the State University of New York at New Paltz -- alleges that her professor called her "Monica Lewinsky" in front of the class at the same time the real Monica was making headlines for her salacious relationship with Bill Clinton.

Hayut also alleges the professor made comments in the classroom such as, "How was your weekend with Bill?" and, "Shut up, Monica. I'll give you a cigar later."

Hayut sued Professor Alex Young, his supervisors, and the university that employed them, citing Title IX of the Education Amendments of 1972, a federal statute that prohibits discrimination on the basis of sex in educational institutions, and another statute (42 U.S.C. Section 1983) that provides a monetary remedy for deprivations of federal constitutional and statutory rights.

In January a federal district court permitted Hayut to go forward with her claims. Her case illustrates interesting issues about how the law addresses claims of teacher-student harassment.

Proving a 'hostile environment'

Title IX prohibits schools that receive federal financial assistance from discriminating on the basis of sex, and sexual harassment is one form of intentional sex discrimination.

Hayut's theory of sexual harassment is that Young created a hostile educational environment. To prevail on this theory, she needs first to prove that she was subjected to unwelcome sexual conduct.

In light of the national obsession with Monica Lewinsky at the time, the alleged comments were clearly sexual in nature -- they clearly implied Hayut was having, or willing to have, sexual relationships with men in positions of authority (including professors).

Moreover, if Hayut's allegations are true, those comments were clearly unwelcome. Hayut says she never gave any indication that she thought the professor's comments were funny or appropriate, and that she eventually asked him to stop.

To establish a "hostile environment," Hayut must also prove that Young's conduct was sufficiently severe or pervasive to alter the conditions of her learning environment.

One incident of unwelcome physical contact is usually sufficiently severe to create a hostile environment, but most courts require mere verbal conduct to be a recurring problem.

That the conduct is alleged to have continued throughout the semester, and to have occurred in front of Hayut's classmates will help her prove pervasiveness.

Is there a proper defendant?

Proving actionable harassment is only half the battle. Hayut must also prove that someone can be held responsible for it.

Hayut is going after Young, his supervisors, and the university. But liability rules are different for individuals and educational institutions, and in any case can be quite complicated.

Most courts, for example, agree that individuals cannot be held liable under Title IX, and the federal district court in Hayut's case accordingly dismissed those claims. Schools, however, can be held liable under Title IX, and thus Hayut's claims against the university still stand.

Before 1998, most courts found schools automatically liable for teacher-student harassment, on the theory that teachers are agents of the school. But in 1998, the U.S. Supreme Court in Gebser v. Lago-Vista Independent School District imposed a much more stringent standard of liability.

In Gebser the court ruled that educational institutions can only be forced to pay damages for teacher-student harassment when school officials with the capacity to stop the harassment had actual notice of the harassment and responded with deliberate indifference.

Gebser, therefore, makes it exceedingly difficult for students to hold schools liable for teacher-student harassment. Such a high standard is unfortunate, given the prevalence of sexual harassment in schools at all levels and the devastating impact it can have on its victims.

To prevail on her claim against the university, Hayut needs to prove she gave actual notice of the harassment to someone with the power to stop it, and that that person (or other officials) was deliberately indifferent to her complaint.

Hayut alleges she first asked the offending professor to stop, and then complained to an associate dean. The associate dean, in turn, referred her to the chair of the political science department. She went to see the chair, told his staff of the reason for her visit, waited for an hour, but did not speak to him.

Her claim against the university will turn on whether the associate dean to whom she initially complained had the authority to stop the conduct and whether, by referring her to someone else and taking no action himself, he was deliberately indifferent to her complaint.

Concurrent claims unresolved

Hayut is trying to use Section 1983 to collect damages for violations of her rights under both Title IX and, because the university is a state institution, the Constitution's equal protection clause.

One of the benefits of using Section 1983 in a situation such as Hayut's is that it may be easier to hold supervisors liable for the harasser's misconduct than it would be under Title IX.

The Supreme Court, however, has never decided whether a plaintiff may concurrently pursue claims under both Title IX and Section 1983, if they are based on the same underlying conduct.

Most of the lower courts that have addressed the question have held that Section 1983 cannot be used to enforce Title IX directly. They reasoned that Title IX itself supplies a sufficiently comprehensive remedial scheme, making an additional remedy under Section 1983 unnecessary.

Courts also generally agree that because Title IX does not permit individual liability, the existence of Title IX cannot possibly extinguish equal protection claims against individuals under Section 1983. Thus Hayut's Section 1983 equal protection claims against her professor and his supervisors have been allowed to proceed.

But courts have split on whether, in a teacher-student case in which Title IX claims are brought, an institution can concurrently be sued under Section 1983 to enforce equal protection rights.

Some courts have said yes. But some courts -- including the Hayut court -- have said no (though without any compelling reason). Thus Hayut will proceed only under Title IX against the university.

What we can learn from Hayut

Hayut's case, in the end, tells us a few things.

First, many Title IX harassment cases hinge not on the underlying harassment, but on whether a university can be held responsible under Gebser's heightened liability standards.

Second, sexual harassment victims at public schools may be allowed to redress their complaints against individual defendants and against universities under Section 1983 without meeting the heightened liability standards of Title IX.

FindLaw columnist Joanna Grossman is an associate professor of law at Hofstra University in New York where she teaches sex discrimination law, among other subjects. Grossman's other articles on sex harassment, in law firms and elsewhere, may be found in the archive of her pieces on this site. Joanna Grossman is also a FindLaw columnist.

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