In 1998, the Supreme Court held in Gebser v. Lago Vista School District that educational institutions could be liable for sexual harassment by its employees only when the institution responded with deliberate indifference to ongoing harassment about which it had actual notice. In the current issue of the Richmond Law Review, student author Justin Paget evaluates the claims of Gebser's critics that the Court's refusal to apply a vicarious liability standard foreclosed remedial options for victims of sexual harassment in an educational setting. Paget compares the the number of times lower courts granted schools' motions to dismiss sexual harassment claims in two one-year periods, one pre-Gebser and one post-Gebser period. He observes that the dismissal rate did not dramatically increase with the adoption of the actual notice/deliberate indifference standard: schools won 10 out of 25 (40%) of their motions to dismiss in 1997-1998 (pre-Gebser) and 15 out of 29 (51.7%) of their motions to dismiss in 2006-2007 (post-Gebser). While it's clear that Gebser has some affect on the likelihood of plaintiffs surviving summary judgment, Paget concludes that this data -- namely, that post-Gebser, plaintiffs still survived motions to dismiss 48% of the time -- challenges the critical assumption that Gebser had a serious affect on the outcome of sexual harassment cases.
Interesting observation, but I wonder if these results are potentially explained, at least to some extent, by Gebser's deterrent effect on potential plaintiffs who would have sued had the Court adopted a vicarious liability standard instead. Since these additional phantom plaintiffs would have also presumably lost at the pleading phase in the post-Gebser era, Paget's 51.7% victory rate for schools may be artificially low.