Tens of thousands of students in K-12 schools suffer sexual harassment each year. While presidential administrations and Congress have proposed reforms to Title IX to tackle this problem, the potential of Section 1983 Equal Protection Clause claims to protect students from and remedy their sexual harassment has gone overlooked. Not only does the Equal Protection Clause provide students some broader rights than Title IX, but Section 1983 also exists to remedy civil rights violations. Section 1983 Equal Protection Clause claims therefore have significant potential to address sexual harassment in ways Title IX cannot.

These equal protection claims based on school sexual harassment, however, have yet to fulfill their potential. When students who suffer sexual harassment bring these claims against schools, courts import Title IX’s onerous standards into their evaluation of the equal protection issues. Courts thus collapse students’ Title IX and equal protection rights, and students’ equal protection claims fail. This Article is the first in the academic literature to identify this civil rights collapse and explain that it occurs based on false and unjustified assumptions.

To reverse this rights collapse, this Article proposes a reconceptualization of the standards for evaluating students’ equal protection claims for school sexual harassment—one that unyokes their evaluation from Title IX. These changes would leverage the power of Equal Protection Clause claims to protect students where Title IX does not.

* Associate Dean for Clinics and Externships and Professor of Law, University of South Carolina Joseph F. Rice School of Law. I owe thanks to Kelly Behre, Derek Black, Alexandra Brodsky, Josie Brown, Victoria Chase, Casey Faucon, Michele Gilman, Tristin Green, Daniel Harawa, Marcy Karin, Tammy Kuennen, Suzanne Kim, Jude Knoepp, Laura Lane-Steele, Lisa Martin, Solangel Moldanado, Diana Newmark, Brenda Smith, Sarah Swan, Clint Wallace, Madalyn Wasilczuk, Emily Winston, Kate Wood, and the participants at the Family Law Scholars and Teachers Conference, the AALS Conference on Clinical Legal Education Works in Progress session, and the Equality Law Scholars Forum for their comments on earlier drafts of this Article. In addition, I am indebted to Vanessa McQuinn for her exceptional work editing the footnotes in this Article. Finally, I am grateful to the lawyers at Public Justice who are litigating these school sexual-harassment cases and considering the ideas in this Article as they do.