Karasek

ORDER ON DEFENDANT’S MOTION TO DISMISS THE FOURTH AMENDED COMPLAINT

INTRODUCTION

In a thoughtful article in the Yale Law Journal, Catharine A. MacKinnon argues that the deliberate indifference standard in sexual assault cases under Title IX,' 20 U.S.C. § 1681 , is inconsistent with Title *1012 IX’s guarantee of equal educational outcomes on the basis of sex. Catharine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale L.J. 2038 (2016). She describes how reporting sexual harassment to school administrators frequently becomes a distinctively damaging part of the abuse experience. She proposes that the law should apply a “due diligence” standard that would hold schools accountable to survivors if they failed to adequately investigate, effectively respond to and transformatively remediate sexual violations on campus. If the standard I applied to the Title IX claims filed by Sofíe Kara-sek and Nicoletta Commins was “due diligence” rather than “deliberate indifference,” their allegations would proceed past the pleading stage.

But the standard set by the United States Supreme Court in Davis v. Monroe County Board of Education,…