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In our prior column on the Penn State scandal, we noted that it has long been clear—and was reaffirmed by the Department of Justice’s Office of Civil Rights just this year—that a single instance of sexual assault is sufficiently severe to create a hostile environment under Title IX. Thus, the answer to the question whether the fact that Sandusky may have abused a given boy only once is a legal obstacle from a Title IX perspective is clearly “No.”

The harder question—and one that draws us into unchartered waters in Title IX law—is whether Title IX applies to Sandusky’s sexual harassment of these particular boys. In all of the sexual harassment cases brought under Title IX to date, the victims of the harassment were students of the institution being sued. And OCR’s policy guidance on sexual harassment is written with reference to protecting students. (Employees clearly could sue under Title IX, too, but they generally have better protection under Title VII.)



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