This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct from and superior to a search for discriminatory intent. The final section offers a brief analysis of what Davis could mean for discrimination law more broadly if courts seriously applied the insights embedded in the Davis case.
Deborah L. Brake,
Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives that Obscure Gender Bias,
Columbia Journal of Gender and Law
Available at: https://scholarship.law.pitt.edu/fac_articles/360
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