Part IV. Title IX Must Be Improved, Taking into Account Findings of Implicit Bias Research and the Lived Experiences of Black Girls

Implicit biases influence administrators' and teachers' responses to the victimization and sexual harassment of Black girls and young women at school. The enormity of this crisis should not stop activists from intervening at the broadest and most basic levels; it might be overcome only through troubleshooting new solutions to systemic problems. Findings from implicit bias research inform both the problem of schools' failed responses to gendered violence against Black girls but also should inform future legal and non-legal solutions.

Although schools are technically liable under Title IX for sex discrimination, including sexual harassment of students, the threat of lawsuits is insufficient to prevent the harassment of African American girls or any student for that matter. Litigation as a tool for vindication is uniquely problematic for Black girls, whose victimization is less likely to be perceived as authentic or worthy of safeguarding, as the implicit bias studies on dehumanization and masculinization of Black females demonstrated. Further, as Miller has noted, “legal liabilities applied through the use or threat of lawsuits are ‘largely reactive, piecemeal, individualized responses . . . . They take place after the fact and only provide a remedy for an individual victim after the harm has been done.”’

In addition to the implicit bias studies on the portrayal of African Americans in the media and the behavioral effects these have in a racially segregated society, many African American girls face the added barrier of attending under-resourced schools and living in unsafe, low-income neighborhoods. Many schools with majority Black populations located in distressed, urban communities lack a significant tax basis to fund school programs, struggle to maintain a critical mass of full-time quality staff, and have more “primary security concerns” like “gang violence and weapons violations.” Moreover, the parents and guardians of African American girls who live in distressed neighborhoods often lack the financial and educational resources to litigate the sexual victimization of their daughters at school.

Currently, under the Title IX regime, a school has fulfilled its responsibility to intervene in a substantiated sexual harassment claim by suspending the offending boy (or girl). As already explained, Black youth are the disproportionate targets of such Zero Tolerance policies. Such policies further criminalize Black youth by treating Black boys and young men as criminals and perpetuating the school-to-prison pipeline.

If Title IX is truly to protect African American girls at school and prevent their further victimization, suspension and expulsion should not be the first resort. In order to know the best remedies, it is best to ask Black girls who have suffered from sexual harassment themselves about their needs and desires. The scholars who attempted to understand those needs have overwhelmingly found that young African American girls want to talk about sexual harassment at school in a safe, open conversational format, which is a tool of restorative justice. Further, many of the girls Miller interviewed felt betrayed that boys who sexually harassed girls simply got sent home and punished, rather than treating the source of the conflict. Their voices confirm the inadequacy of interventions such as suspension and similar Zero Tolerance policies. Title IX requires schools to not merely stop but also prevent sexual harassment. If schools are not yet fulfilling that promise for Black girls, we need to keep them accountable. Implicit bias research helps explain many of the problems African Americans girls face in confronting their sexual victimization at school and their difficulty in securing adequate remedies, but it does not excuse school officials from their legal responsibilities.

Thus, in order to improve the compliance requirements of schools under Title IX, the Office for Civil Rights (OCR), charged with setting regulations under Title IX, should incorporate implicit bias findings into its requirement of schools. Possible shifts in compliance might include: revamping health curriculums to challenge physical, emotional, and cultural stereotypes that condone violence against African American girls; increasing training requirements for school administrators, teachers, and staff in order to receive federal funding for education; creating alternative discipline options based on restorative justice that seek not to kick out the perpetrator but instead to restore the trust of African American girls in their schools and facilitate healing for all parties. Finally, I suggest that OCR create more incentives for schools to comply with Title IX's requirements to prevent and intervene in the victimization of students.

African American girls--their voices, their experiences, and their victimization--matter. Schools will not be safe for any child until they are safe for them.