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Directions in Sexual Harassment Law$

Catharine A. MacKinnon and Reva B. Siegel

Print publication date: 2003

Print ISBN-13: 9780300098006

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300098006.001.0001

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Alexander v. Yale University An Informal History

Alexander v. Yale University An Informal History

Chapter:
(p.51) 3 Alexander v. Yale University An Informal History
Source:
Directions in Sexual Harassment Law
Author(s):

Anne E. Simon

Publisher:
Yale University Press
DOI:10.12987/yale/9780300098006.003.0004

Abstract and Keywords

This chapter discusses a case that developed from the work of women undergraduates at Yale who delved into the rumors and discussions about widespread sexual harassment and the unwillingness of the Yale administration to do anything about it. Their knowledge that something was very wrong, even if they did not have a name for it, was the basis of all that followed. Central to their claims was their understanding that, because of sexual harassment, none of the plaintiffs received the education they had come to Yale to get. Ann Olivarius was one of the members of the Yale Undergraduate Women's Caucus who had been most active in investigating the persistent reports of sexual harassment at Yale. She had been told by a senior Yale administrator that if she did not stop saying those things about faculty members, she would get sued for defamation—and Yale would not help her.

Keywords:   women undergraduates, Yale, sexual harassment, Yale administration, Ann Olivarius, Undergraduate Women's Caucus, defamation

The writing of Sexual Harassment of Working Women was not exactly an academic exercise. As it was being written, many of the practical and theoretical problems of sexual harassment litigation were emerging in the work of the New Haven Law Collective,1 when we sued Yale University in the spring of 1977. More specifically, we represented five women students and one male faculty member in a lawsuit asserting that sexual harassment of women undergraduates by male faculty members, without any mechanism for students to complain or for Yale to do anything about the complaints, was sex discrimination in violation of Title IX of the Education Amendments of 1972.2

The case developed from the work of women undergraduates at Yale who delved into the rumors and discussions about widespread sexual harassment and the unwillingness of the Yale administration to do anything about it. Their knowledge that something was very wrong, even if they did not have a name for it, was the basis of all that followed.

The women students who came forward to be plaintiffs ran the gamut of the problems of sexual harassment in higher education. Central to their claims was their understanding that, because of sexual harassment, none of the plaintiffs received the education she had come to Yale to get. Ronni Alexander's claim was that her flute teacher had forced her into sexual intercourse, that she had no one to talk to or go to in order to complain about it, and that as a result (p.52) she had abandoned both majoring in music performance and playing the flute. Pamela Price reported that a professor of political science, her major field, offered her an A in exchange for sex. She refused. She got a C in the course. Lisa Stone stated that she had spent a good deal of time with a friend who had been sexually harassed and had not been able to do anything about the harassment. Stone concluded that if she were sexually harassed she, too, would be left on her own by Yale; as a result, she began to fear and shun interaction with male faculty members. Margery Reifler, manager of the field hockey team, asserted that her life had been made miserable by sexual harassment from the male coach of the team. Ann Olivarius was one of the members of the Yale Undergraduate Women's Caucus who had been most active in investigating the persistent reports of sexual harassment at Yale. She had been told by a senior Yale administrator that if she did not stop saying those things about faculty members, she would get sued for defamation—and Yale would not help her. The late Jack Winkler was a classics professor who concluded that he could not do his job as a teacher if his women students were in a constant state of anxiety about male faculty members because the university provided no way for them to make complaints about sexual harassment and have them resolved.

Ann Olivarius felt threatened by Yale's warning. Being a good student of Kitty's, she decided she needed a lawyer. She walked into our office one afternoon and talked to Kent Harvey, who rapidly decided that there was a serious problem. Initially, it looked as though we would be seeing that problem from the defense side of a defamation case. Soon, however, it became clear that it would be much more worthwhile to go on the offensive than to wait for Olivarius to be sued. As the details of more incidents of sexual harassment came to light, we saw that there was a widespread pattern of sexual harassment, well represented by the courageous women who would become plaintiffs. They would present a great case. There were just two problems: we had no cause of action, and we had no private right to sue.

The claim that sexual harassment in employment was sex discrimination that violated Title VII of the Civil Rights Act of 1964 was not doing well in the courts in early 1977. The decisive turn in the recognition of the validity of the claim did not begin to occur until the summer of 1977, after we filed Alexander.3 We were trying to raise for the first time the claim of sexual harassment as sex discrimination in education, and we were basing the claim on an analogy to what was then still a losing cause of action in the employment context.

The statutory basis for the claim of sex discrimination in our case against Yale was Title IX, which prohibits sex discrimination in federally funded educational programs. The regulations implementing Title IX provided that “a recipient (p.53) shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.”4 Our legal claim was that Yale's actions and policies were violating that mandate. This formulation of the claim was consistent with the students' understanding of the issue. From the beginning, and throughout the litigation and its aftermath, the women students wanted to be able to take their complaints of deprivation of equal educational opportunity to the university itself, not an outside judge or agency. They reasoned that the university was the site of their education, and thus the university was responsible for ensuring that they could actually obtain it.

The conceptual and political appropriateness of Title IX did not, however, get us very far in itself. The explicit enforcement mechanism provided in the law was the ability of the federal funding agency (at that time, the Department of Health, Education and Welfare) to cut off funding to the noncomplying institution.5 Only one federal court of appeals had ruled on the question of whether individual students could bring suit to enforce Title IX, and had decided it the wrong way.6

Here, as in many other circumstances, life imitated baseball. An opposing pitcher once said of Wade Boggs, the third baseman and brilliant hitter for the Boston Red Sox and later the New York Yankees, “When you have two strikes on him, he's got you exactly where he wants you.” This is also an apt description of the Catharine MacKinnon approach to legal problems. There we were, with no cause of action and no right to sue, and Kitty was convinced we were going to win.

We brought the case in federal court in New Haven. Yale, naturally, moved to dismiss it. The question of the private right of action under Title IX got most of the attention. Yale treated enforcement of Title IX as an encroachment on its prerogatives at a time when many women's rights organizations were fighting for effective implementation of Title IX. The Project on the Status and Education of Women of the Association of American Colleges was following Title IX enforcement closely around the country. Litigation against the Department of Health, Education and Welfare, asserting that HEW was failing to enforce any of the statutes requiring equity in educational programs receiving federal financial assistance, was moving ahead.7 The Women's Equity Action League (a plaintiff in the case against HEW) and the NOW Legal Defense and Education Fund, represented by the National Women's Law Center, took the unusual step of filing an amicus curiae brief on the motion to dismiss in Alexander, in support of a private right of action under Title IX.

This activity on the private right of action issue, welcome though it was, addressed only one of our two problems. On the issue of whether sexual (p.54) harassment was sex discrimination under Title IX, we were more on our own. Fortunately, part of the manuscript of Sexual Harassment of Working Women was available to help us formulate our arguments. We pulled out the arguments most likely to be persuasive in the context of undergraduate education, updated the status of the employment cases, and explained the allegations in Alexander in order to file an effective opposition to the motion to dismiss the case.8

In deciding the motion to dismiss, the district court broke new ground by concluding that sexual harassment in education would, if proved, be actionable sex discrimination under Title IX, at least in the form of the trade of a grade for sex given in Price's claim.9 Alexander's claim was held to be mooted by her graduation, “absent sheer conjecture that [she] may in the future wish to resume study in [the] field.”10 It is natural to wonder whether a court would have been so cavalier about a man's claim that misconduct by a university professor had destroyed his career plans.

The trial court dismissed Reifler's claim on the ground that she had not complained to the university, although it simultaneously accepted the legal sufficiency of the allegation that Yale did not have a grievance procedure for complaints under Title IX.11 The claims of Stone, Olivarius, and Winkler were said to be “untenable,” because “no judicial enforcement of Title IX could properly extend to such imponderables as atmosphere or vicariously experienced wrong.”12 Today, we would understand those as claims of hostile environment sexual harassment. More than fifteen years after this ruling, Price, as a lawyer in Oakland, California, won a published decision on behalf of high school students, affirming that hostile environment sexual harassment was illegal under Title IX13 and demonstrating yet again that litigants often know more than judges.

Price's claim was tried before a judge without a jury in 1978. It wound up looking a lot like an individual tort case after the court denied class certification and refused to admit any evidence of sexual harassment at Yale outside of the facts of Price's situation. These rulings made it difficult, if not impossible, to prove that there was a systemic problem for which an institutional grievance mechanism would be at least part of the solution. The judge then decided that she did not believe that the underlying sexual harassment had occurred. Here, too, the court failed to see the true nature of the injury alleged.14 The judge concluded that if she did not believe that Price had been sexually harassed, Yale had no legal obligation to have a grievance procedure to investigate whether this incident (or any other instance of sexual harassment) had occurred. This conclusion ignored the text of the Title IX regulations, which required “grievance procedures…. for prompt and equitable resolution of … complaints alleging any action which would be prohibited by this part.”15

(p.55) The students' claims were appealed to the Second Circuit.16 The court decided that, since everyone had graduated, it did not need to bother.17 The court was also not inclined to spend its time considering alleged deprivation of educational opportunities in “an activity removed from the ordinary educational process,” such as flute lessons or field hockey. This view has since been repudiated in the Title IX cases addressing unequal athletic opportunities.18

Two other factors probably influenced the appellate outcome. One was not explicitly acknowledged in the opinion: all three of the men named in the complaint were no longer at Yale, since the last had departed a couple of weeks before oral argument. The other factor was extensively discussed by the court: by the time the appeal was heard, Yale did finally have a grievance procedure designed to deal with complaints of sexual harassment. The Second Circuit thus felt able to opine that “it appears that the major relief sought in this suit has already been granted.”19 The court made no mention of how Yale had acquired a grievance procedure, though everyone at Yale knew. It had not been “granted”; the grievance procedure was the result of persistent and continuous pressure, and a great deal of work, by the Undergraduate Women's Caucus and the Council of Third World Women at Yale, as well as several other student organizations, both undergraduate and graduate.

Nevertheless, it is fair to conclude that Alexander, through the decision on the motion to dismiss upholding the legal sufficiency of the Price claim, established that sexual harassment of students by teachers was illegal sex discrimination under Title IX. A brief check of the legal citation services reveals that the case, in either its trial or appellate form, has been cited in thirty-nine reported cases in the past twenty years. Twenty-eight of them, almost all in the Second Circuit, cite it for mootness, standing, or related procedural barriers to plaintiffs in a wide variety of contexts. Eleven cite Alexander in some decision on the merits about sexual harassment in education. Only one of those cases involved undergraduates; one, high school students; one, junior high school students; three, elementary school students; four, graduate or professional students; and one plaintiff was a junior faculty member.20 These are not particularly impressive citation statistics for a case that announced an important new legal principle.

The relative skimpiness of the later legal history of Alexander has at least three sources. First, it remains very difficult for students to sue for sexual harassment. It requires time, energy, commitment, and willingness to endure the nastiness of litigation and the risks to future educational and employment opportunities from being labeled a troublemaker. And you need to find a lawyer.21

Second, the doctrinal development of the sexual harassment claim under Title IX, unlike that under Title VII of the Civil Rights Act of 1964,22 has not (p.56) been the subject of extensive common law interpretive argumentation.23 The idea that sexual harassment was illegal sex discrimination in education went from being impossible before Alexander to being obvious after it with virtually no intermediate doctrinal steps—at least as to the most direct forms of harassment.24 When the Supreme Court decided in 1992 that compensatory damages could be awarded under Title IX, it did so in a sexual harassment case brought by a high school student who alleged she had been subjected to coercive intercourse by a teacher, and that the school administration discouraged her complaints and ultimately took no action on them.25 The Supreme Court devoted all of two sentences to the question of whether the behavior alleged was sex discrimination under Title IX. Relying on its 1986 decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), the Court stated: “Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and ‘when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor “discriminate[s]” on the basis of sex….’ We believe the same rule should apply when a teacher sexually harasses and abuses a student.”26

Which leads to the final point: the biggest impact of Alexander v. Yale University was not in the development of legal doctrine in the courts, but the creation and institutionalization of grievance procedures for complaints of sexual harassment and other forms of discrimination in educational institutions. The impact of the legal principle was seen almost immediately in the explosion of sexual harassment policies and procedures. This, more than anything else, is what Alexander made happen. Within two years of the appellate decision, institutions of higher education as various as the University of Minnesota, Brown University, Tulane University, and the University of California at Santa Cruz had formal policies and procedures about sexual harassment.27 Within five years, hundreds of colleges and universities had them.28

Sexual harassment in education was a widespread problem long before Alexander. Once we started work on the issue at Yale, we started hearing from faculty wives, administrators, women faculty members, graduate students, about the years of “gossip” and rumors and facts about sexual harassment. It was widely discussed—but not in public. It was as if women in higher education saw a solid wall when they looked for a way out of the sexual harassment dilemma. The feminist ferment of the 1970s suggested that there ought to be something that could be done about sexual harassment. Kitty's work identified where women might look for a handle. We looked, we found it, we pushed and kicked at it, and a door opened. As soon as it did, everyone looked at it and thought, “Oh, that's a door, not a wall,” and began walking through it—as they have continued to do ever since.

(p.58)

(p.59)

Notes:

(1) . At that time, we were Judith Berkan, Kent Harvey, Rosemary Johnson, Catharine MacKinnon, and Anne Simon. Phyllis Crocker and Charles Pillsbury came into the group later in the history of the case.

(2) . “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Numerous exceptions follow. 20 U.S.C. § 1681(a) (1997). The statute has had an uneven history in the Supreme Court. In Cannon v. University of Chicago, 441 U.S. 677 (1979), the Court held that Title IX is enforceable through an implied private right of action. In North Haven Board of Education v. Bell, 456 U.S. 512 (1982), the Court held that Title IX covered employment discrimination in federally funded educational institutions. In Grove City College v. Bell, 465 U.S. 555 (1984), the Court narrowed the scope of Title IX's application so drastically that Congress overturned the decision in the Civil Rights Restoration Act of 1987, Pub. L. No. 100–259, 102 Stat. 28 (1988), codified with respect to Title IX at 20 U.S.C. § 1687–88. Returning to its less restrictive views, in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), the Court recognized a right to compensatory damages for violations of Title IX. It remains to be seen whether the decisions in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), inaugurated a move back toward restrictiveness.

(3) . See chapter 4 of Catharine A. MacKinnon, Sexual Harassment of Working Women (1979).

(4) . 45 C.F.R. § 86.8 (b) (1978). When the Department of Education was created in 1980, it took over and recodified various regulations of the former Department of Health, Education and Welfare. The grievance procedure regulation now appears at 34 C.F.R. § 106.8 (b) (1997).

(5) . 20 U.S.C. § 1682 (1997). The Department of Education has applied its regulations on funding termination under Title VI of the Civil Rights Act of 1964, found at 34 C.F.R. Parts 100–01, to Title IX. 34 C.F.R. § 106.71 (1997).

(6) . Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir. 1977). This decision was reversed by the Supreme Court two years after we filed suit. Cannon v. University of Chicago, 441 U.S. 677 (1979).

(7) . The litigation began in 1970, as a suit against HEW for failing to cut off federal funds to racially segregated higher education systems. Adams v. Richardson, 356 F. Supp. 92 (D.D.C. 1973). Groups seeking more vigorous HEW enforcement of Title IX and of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1997), later joined the case. A consent decree was entered at the end of 1977. The case ended with the decision in Women's Equity Action League v. Cavazos, 906 F.2d 742 (D.C. Cir. 1990).

(8) . This effort, somewhat revised, eventually made its way back into the book, as “Appendix B: A Brief.”

(9) . Alexander v. Yale University, 459 F. Supp. 1, 5 (D. Conn. 1977).

(10) . Alexander, 459 F. Supp. at 3.

(11) . Compare Alexander, 459 F. Supp. at 3 with Alexander, 459 F. Supp. at 6.

(12) . Alexander, 459 F. Supp. at 4.

(13) . Patricia H. v. Berkeley Unified School District, 830 F. Supp. 1288 (N.D. Calif.1993). Some of the cases making hostile environment claims under Title IX are collected in Brzonkala v. Virginia Polytechnic Institute and State University, 132 F. 3d 949, 958–59 (4th Cir. 1997), affirmed by U.S. v. Morrison, 529 U.S. 598 (2000).

(14) . For a discussion of sexual harassment specifically in higher education, see Phyllis L. Crocker and Anne E. Simon, “Sexual Harassment in Education,” 10 Capital University Law Review 541 (1981).

(15) . 34 C.F.R. § 106.8(b) (1997) (emphasis added). The U.S. Department of Education thinks this means what it says: “regardless of whether harassment occurred, a school violates this requirement of the Title IX regulations if it does not have those procedures and policies in place.” U.S. Department of Education, Office for Civil Rights, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” (Jan. 2001), p. 19.

(16) . The appeal was argued by Nadine Taub, Women's Rights Litigation Clinic, Rutgers—Newark School of Law, as a cooperating attorney for the Center for Constitutional Rights.

(17) . Alexander v. Yale University, 631 F.2d 178, 184 (2d Cir. 1980).

(18) . Alexander, 631 F.2d at 184. See Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996), cert, denied, 520 U.S. 1186 (1997); Haffer v. Temple University, 678 F. Supp. 517 (E.D. Pa. 1987).

(19) . Alexander, 631 F. 2d at 184.

(20) . Undergraduate: Bougher v. University of Pittsburgh, 713 F. Supp. 139 (W.D. Pa. 1989). High school: Patricia H. v. Berkeley Unified School District, 830 F. Supp. 1288 (N.D. Cal. 1993). Junior high school: Doe v. Petaluma City School District, 54 F.3d 1447 (9th Cir. 1995). Elementary school: Canutillo Independent School District v. Leija, 101 F.3d 393 (5th Cir. 1996); Does: 1, 2, 3, and 4 v. Covington County School Board, 969 F. Supp. 1264 (M.D. Ala. 1997); Davis v. Monroe County Board of Education, 120 F.3d 1390 (11th Cir. 1997), reversed, 526 U.S. 629 (1999). Graduate and professional schools: Micari v. Mann, 481 N.Y.S.2d 967 (Sup. Ct. 1984); Moire v. Temple University School of Medicine, 613 F. Supp. 1360 (E.D. Pa. 1985); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988); Bilut v. Northwestern University, 645 N.E.2d 536 (Ill. App. Ct. 1994). Junior faculty: State University of New York at Albany v. State Human Rights Appeal Board, 438 N.Y.S.2d 643 (App. Div. 1981).

(21) . See the observations of Louise Fitzgerald about the further damage plaintiffs can suffer from litigation, and the comments of Pamela Price about the costs of litigation and the scarcity of lawyers willing to represent plaintiffs, in this volume.

(22) . 42 U.S.C. § 2000e et seq. (1997).

(23) . See, e.g., Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) (same-sex harassment); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (employer liability standards); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (nature of discriminatory injury).

(24) . As Pamela Price points out in this volume, this has sometimes made it difficult for lawyers to find cases to cite when they are presenting new sexual harassment claims in the education context.

(25) . Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

(26) . Franklin, 503 U.S. at 75.

(27) . These early efforts are collected and evaluated in Phyllis L. Crocker, “Analysis of University Definitions of Sexual Harassment,” 8 Signs: Journal of Women in Culture and Society 696 (1983).

(28) . Louise F. Fitzgerald, “Institutional Policies and Procedures,” in Bernice Lott and Mary Ellen Reilly, eds., Combatting Sexual Harassment in Higher Education (1996), p. 130 (citing Claire Robertson, Constance E. Dyer, and D'Ann Campbell, “Campus Harassment: Sexual Harassment Policies and Procedures at Institutions of Higher Learning,” 13 Signs: Journal of Women in Culture and Society 792 [1988]).