competitive scholarships, fellowships, and graduate or professional school.
1. Scott James, A Touch During Recess, and Reaction is Swift, N.Y. TIMES (Jan. 27, 2012),
elementary-school.html.
2. Id.
Id.
4. Id.
Objectively Offensive: The Problem
of Applying Title IX to Very Young
Students
I. Introduction
In December of 2011, Levina Subrata received a paper informing her
1 Although any mother would be distraught to receive such
devastating news, Ms. Subrata was utterly stunned––her son was only
a classmate at his elementary school in a San Francisco suburb, he had
allegedly touched the upper thigh and/or groin of the other boy.2 Despite
the absence of witnesses, and indeed even the absence of a complaint
from the other child, Ms. Subrata’s son was suspended and his principal
Only after Ms. Subrata hired a lawyer and
threatened legal action did the school assure her that her son’s record had
been cleared.4
Ms. Subrata’s story, although perhaps shocking, is hardly an outlier.
Across the country, very young students—some as young as four years
old—have been swept up in a net of well-intentioned, but improperly-
Family Law Quarterly, Volume 51, Number 3, Fall 2017
5. Lauren F. Lichty et al., Sexual Harassment Policies in K-12 Schools: Examining
Accessibility to Students and Content, 78 J. SCH. HEALTH 11, 612 (2008).
6. Yvonne Bynoe, Is That 4-Year-Old Really a Sex Offender?, WASH. POST (Oct. 21, 2007),
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/19/AR2007101901544.html.
7. Id.
8. Id.
9. James, supra note 1.
10. Rheanna Murray, 9-Year-Old Student Suspended for Sexual Harassment after Calling
Teacher “Cute,” Mother Says, N.Y. DAILY NEWS (Dec. 5, 2011), http://www.nydailynews.com/
article-1.987029.
11. Tara Kelly, D’Avonte Meadows, Colorado First Grader, Suspended For Singing ‘I’m
Sexy And I Know It’ Lyrics
see also Farrah Miller, ‘I’m Elmo and I Know
It’: Kid-Friendly Version of LMFAO’s Hit Song
version of LMFAO’s hit.”.
These policies are all too often vague and overly broad, and sometimes
5
be disciplined for behavior such as “unwanted attention” or “inappropriate
behavior (such as inadvertent touching during a game).
hugging a teacher’s aide as he boarded a bus; she alleged that he “put his
face in her chest.”6
physical contact” charge.7 He was, however, more fortunate than the
record until he enters middle school.”8
The list goes on and on. A month before Ms. Subrata’s son was
9 That same
overheard telling another student in his class that a teacher was “cute,”
which his school district said constituted “inappropriate behavior” and
“inappropriate statements.”10
I know it” (a song that, at the time, was so prevalent it had been sang at
halftime of the Super Bowl and featured on Sesame Street with the lyrics
11 “They’re going to look at him
