INTRODUCTION

In Gebser v. Lago Vista Independent School District, the U.S. Supreme Court held that a thirteen-year-old girl who was raped by her teacher did not have a Title IX cause of action against the school district because the district did not have actual notice of the abuse. The consequences of this decision for young victims of sexual abuse by educators have been significant. Unsurprisingly, commentators have criticized the decision as gutting Title IX and creating an unsurmountable hurdle for a victim trying to prove the school liable.

In her feminist judgment, Professor Ann Bartow, writing as Justice Bartow, dissents from the majority opinion. She challenges the decision by focusing on the story of the young student, Alida Gebser, and her abuse by her teacher, Frank Waldrop. This is a story that she believes the various courts euphemized and distorted. Relying on the feminist method of narrative, Justice Bartow attacks the actual notice standard primarily through a retelling of Alida's story, although she also criticizes this standard as unworkable because it allows school districts to disregard inappropriate teacher conduct. Bartow educates the reader about the realities and complexities of child sexual abuse by a trusted authority figure and endorses an agency standard that places the burden of exposing abusive teachers on the school district and its employees.

TITLE IX, SEXUAL HARASSMENT AND THE COURTS

Title IX's prohibition of sex discrimination in federally funded education programs offers little legislative history guidance. Prior to Gebser, the U.S. Supreme Court decided two key Title IX sex discrimination cases: one, Cannon v. University of Chicago, found an implied cause of action for Title IX sex discrimination, and the other, Franklin v. Gwinnett County Public Schools, held that plaintiffs could recover damages. After Franklin, the lower courts struggled with the parameters for Title IX sexual harassment liability.

To address the circuit split, the U.S. Supreme Court granted certiorari in Gebser.