Friday, November 5, 2021
Ty Alper (UC-Berkeley), Third-Party Sexual Harassment: The Challenge of Title IX Obligations for Law School Clinics, 96 Wash. L. Rev. 1 (2021):
Law faculty who teach and train students in clinical settings regularly expose students to the potential for sexual harassment. Because clinics involve actual cases in real-world contexts, students may encounter sexual harassment from third parties such as clients, witnesses, and judges. Do faculty who tolerate this exposure run afoul of their obligations under Title IX to stop and remedy sexual harassment about which they are, or should be, aware?
This Article is the first to identify and propose a method for addressing a phenomenon that strikes at the intersection of three sets of priorities for clinical faculty: duty to serve the client, duty to educate the student, and duty to protect the student. When a law student may face sexual harassment from a third party in the course of representing a client, the values underlying those priorities are in tension and admit no obvious solution; some remedies that Title IX arguably requires are, in many cases, impossible to square with the duties of loyalty and zealousness owed to a clinical client, not to mention the educational goals of the clinic. And yet, clinicians can and must embrace the fundamental principle of Title IX, which is to ensure that educational opportunities are available to all students, regardless of sex or gender presentation. The dilemma explored here echoes the modern American cultural, educational, and legal shift toward protecting students from speech and conduct deemed harmful, but does so in a non-classroom setting where legal ethics and clinical pedagogy are complicating factors.