Volume 74, Number 1

April 1999

Protecting Students Against Peer Sexual Harassment: Congress’s Constitutional Powers to Pass Title IX

Melanie Hochberg

The Note begins with an overview of peer sexual harassment in schools, emphasizing its frequency and severe effects, and an explanation of why schools should adopt antiharassment policies. It continues with a discussion of the judicial and legislative history of Title IX. Part II provides a brief explanation of Congress’s powers under the Spending Clause and describes the Fifth and Eleventh Circuits’ analysis of Title IX’s scope. Next, it considers the breadth of Title IX by using traditional tools of statutory interpretation and focuses on a Seventh Circuit opinion in which the court found that Title IX reaches peer sexual harassment. Part II continues with a discussion of sovereign immunity and the Fourteenth Amendment. This Part concludes by describing the analysis of courts that have found that Title IX is within Congress’s Fourteenth Amendment power and abrogates sovereign immunity. By establishing that Congress can use multiple powers to pass legislation and by analogizing Title IX to other laws, Part II argues that Title IX was passed pursuant to both the Spending Clause and the Fourteenth Amendment.