abstract. This Note examines the hurdles faced by student-employees who encounter sex discrimination and proposes both strategic and doctrinal solutions. First, Title VII is preferable to Title IX for vindicating claims of sex discrimination. But courts have repeatedly—and, I argue, wrongly—failed to extend Title VII protections to student-employees who satisfy the doctrinal test for “employee,” reasoning that they are either students or employees, but not both. Instead, courts should more rigorously apply the relevant doctrinal tests to ensure that student-employees receive the Title VII protections they are due. Second, student-employee plaintiffs often err by exclusively bringing Title VII claims, when in fact Title IX may offer a better path—especially for those whose employment relationships with their schools are not coterminous with their educational relationships. Student-employees should thus also bring Title IX claims to ensure that key evidence makes it into the record. Ideally, courts would evolve Title VII doctrine to factor in evidence of education-based discrimination and education-based protected activity, thereby synthesizing Title VII’s protective benefits with Title IX’s coverage benefits.

author. Skadden Fellow, ACLU LGBTQ & HIV Project; J.D. 2024, Yale Law School; B.A. 2019, University of Pennsylvania. I am deeply grateful to Alexandra Brodsky for guiding and supporting this work (and without whom this Note would not exist), and to Reva Siegel for her vital feedback and extraordinary generosity. For invaluable comments and encouragement, special thanks to Douglas NeJaime, Miles Saffran, Jim Huang, Charlotte Lawrence, Quynhanh Tran, and Ella Bunnell. I am also indebted to Ami Ishikawa, Shreya Minama Reddy, Lily Moore-Eissenberg, and the editors of the Yale Law Journal for their exceptional editing. All views expressed in this Note are my own.

Introduction

Meng Huang came to The Ohio State University (OSU) in 2014 eager to commence her Ph.D. studies in mechanical engineering. But soon after she arrived, Dr. Giorgio Rizzoni—who served as both her supervisor and her professor—commenced an aggressive campaign of sexual harassment against her. Consistent with her dual roles as both an employee and a student, Huang brought claims against OSU under both Title VII of the Civil Rights Act of 1964,1 which prohibits sex discrimination in the workplace, and Title IX of the Education Amendments of 1972,2 which prohibits sex discrimination in schools.3

The district court, however, wrongly assumed that Huang could not simultaneously be an employee and a student protected by both laws—at least not at the same time.4 As a result, the district court sorted the adverse actions Huang experienced into two separate buckets with no overlap: those related to her role as a student and those related to her role as an employee.5 On that basis, the district court granted summary judgment to OSU on Huang’s Title VII quid pro quo claim, holding that the primary adverse action she experienced (revocation of her fellowship stipend) for turning down Dr. Rizzoni’s advances was related only to her role as a student, whereas he had made advances upon her only in her capacity as an employee.6 In other words, the district court divorced the quid from the quo—even though both corresponded to her relationship with OSU and likely would have established a prima facie case had she been only an employee. That she was a student as well was, apparently, the death knell for her quid pro quo claim in district court. It should not have been. Indeed, on appeal, the Sixth Circuit castigated the district court for “mishandl[ing] Huang’s claims” because “[t]he two roles are not mutually exclusive, as the district court mistakenly held.”7

Huang’s experience, both as a survivor and as a plaintiff in the district court, is far from atypical. First, it is no secret that sex discrimination, including in the forms of sexual harassment and assault, runs rampant at colleges and universities. Over a quarter of undergraduate women have experienced sexual assault on campus,8 and nearly half of all students have indicated that they have been the victim of sexual harassment, including 75.2% of undergraduate women and transgender, genderqueer, or gender nonconforming (TGQN) students and 69.4% of graduate and professional women and TGQN students.9

Second, and more broadly, Huang’s case illustrates a fundamental problem with the current landscape of students’ civil-rights litigation: the overlooking of student-employees. Students like Huang are not just students—nor are they just employees, for that matter. Rather, students in today’s educational landscape typically wear multiple hats. Approximately eighty percent of college students hold some sort of paid employment while in school,10 frequently working in on-campus positions as research assistants, at school-run businesses (such as student-run coffeeshops and laundry services), at library or dormitory front desks, and so on. These positions have structures that range well beyond receiving wages for hourly work. For instance, students may participate in federal work-study programs as part of their financial-aid packages11 or receive living stipends as part of doctoral programs that require employment.12 In fact, to be both an employee and a student is arguably most common for graduate students, many of whom balance academic obligations as students with significant job duties as employees of their schools, such as teaching undergraduate students, working in a laboratory, or conducting research for their dissertation advisors.

The recent upswing in graduate-student unions has brought public attention to these job duties, as graduate-student workers have increasingly sought—and won—the right to bargain collectively for living wages and crucial benefits.13 Indeed, the labor they perform is mission critical to universities’ continued operation: “Universities have increasingly relied on graduate teaching assistants and contingent faculty, with the growth in graduate assistant positions and non-tenure-track positions outpacing the increase in tenured and tenure-track positions,” to the point where “tenured and tenure-track faculty now account for just over a quarter of the academic workforce.”14

In addition to forming a supermajority of the teaching workforce, graduate students are an essential economic element of the research workforce, as they are instrumental to the achievement of faculty members’ research agendas.15 In other words, universities cannot achieve either of their core purposes—education and research—without the constant stream of labor of graduate students. Schools should not be able to exploit these students by treating their labor as subsidiary to and separate from the university’s educational mission. Rather, their labor is arguably the foundation of university operations today.

But missing from the unionization conversation is the recognition of duality: yes, graduate students are workers who deserve workers’ rights, but they are students as well. To misclassify them as exclusively one or the other is to replicate the very same error that the district court made in Huang’s case. For instance, graduate students’ academic and employment responsibilities frequently intermix, as when their paid research work also informs their studies. Graduate degrees in science, engineering, technology, or mathematics (STEM), such as Huang’s, epitomize this intermixing. Accordingly, I argue that Huang, and students like her, should be entitled to the protections offered by both education and employment antidiscrimination laws.

It would be doing student-employees a disservice to force them to pick one or the other. As Kimberlé Crenshaw noted in her seminal recognition of intersectional experiences across race and sex, focusing exclusively on “single axes” of discrimination tends to illuminate only the most privileged subgroups within a given subordinated class.16 If antidiscrimination education law is developed without an eye towards students who also work on campus—thus predominantly privileging students who receive no financial aid due to their family’s ability to pay—the doctrine would not necessarily address the unique needs of a large swath of the student population with greater financial need. Education law must account for student-employees in order to deliver on its promise of federally funded educational environments free of discrimination.

Similarly, the development of antidiscrimination employment law that imagines only employees who have no other relationship with their employer would leave out the needs of those who have the most at stake regarding their connection to their employer. Unlike most workers, student-employees rely on their employers for a variety of needs beyond just their job: education, health care, housing, dining halls, and other facilities. This makes their boundary between work and nonwork often fuzzy and sometimes nonexistent. And when the boundary between work and nonwork is difficult to identify, employers can reasonably claim that the alleged discrimination occurred outside of work, making discrimination-free workplaces difficult to achieve. Attention to this nuance is essential to recognizing student-employees’ multiple statuses. Just as it is essential to vindicate women of color’s rights as women, as people of color, and—arguably most importantly—as both,17 it is similarly essential to vindicate student-employees’ rights as students, as employees, and uniquely as student-employees.

This Note proceeds in four Parts. Part I provides an overview of Title VII and Title IX, as well as Title IX’s sister statute, Title VI. Although several circuits have held that Title VII preempts Title IX, I focus on the circuits that have denied such preemption, in no small part because their approach is, in my view and as others have persuasively argued, the correct one.18 When both are available, Title VII offers a host of comparative benefits over and above Title IX in terms of the substantive protections offered by the doctrine to plaintiffs under each statute.19

The second and third Parts of this Note address two kinds of underinclusivity currently plaguing student-employee antidiscrimination litigation. The first problem, examined in Part II, is the fault of judges: courts are counting too few students as employees who deserve Title VII protections. As in Huang’s case, courts have routinely failed to extend to student-employees the employment-law protections that they are due by reasoning that because they are primarily students, they are necessarily not employees. But student-employees like Huang are not just students or employees; they are both. And when they are properly recognized as employees, they are entitled to significantly greater protections in terms of both liability standards and remedies,20 thus vindicating the antidiscrimination promise of Title VII.

The second problem, examined in Part III, is the fault of plaintiffs rather than courts. Student-employees are bringing fewer Title IX (and Title VI) claims than they should, instead hoping to rely fully on Title VII to secure relief. But while Title VII sometimes applies to the entirety of a plaintiff’s relationship with a school (for example, for graduate students like Huang), it often only applies to a subset of that relationship for other plaintiffs, excluding too much retaliation and discrimination from redressability. Title IX thus offers a benefit that Title VII cannot: allowing the entirety of this adverse treatment to be addressed in the same claim. Accordingly, student-employee plaintiffs must ensure that their complaints advance claims under Title IX, not just Title VII.

As these dual proposals suggest, this Note does not take a position on whether, holistically, Title VII is a strictly better vehicle than Title IX or vice versa for all student-employee claims of discrimination. Neither statute is a panacea. Rather, per current doctrine, each has strengths and weaknesses that, depending on the circumstances, may make one a better vehicle than the other in a given case: Title VII offers more expansive protections for covered discrimination, but Title IX covers more discrimination. Parts II and III simply illustrate that courts and plaintiffs are respectively failing to grasp these advantages, meaning that the first step towards fulsome recognition of student-employees’ inherently cross-cutting rights is to remedy the underinclusivity currently undermining enforcement. These reforms are immediately actionable, including under current doctrine.

Part IV offers a more ideal long-term solution to the problems faced by student-employees by advocating a doctrinal expansion that synthesizes the greater protections of Title VII with the greater scope of Title IX. Specifically, I propose that courts adopt a Title VII doctrine that allows (1) evidence of education discrimination to inform a student-employee’s Title VII claim of employment discrimination and (2) education-based protected activity to inform a student-employee’s Title VII claim of retaliation. Such a doctrine would allow student-employee plaintiffs to access the full range of benefits provided by Title VII within the full scope of coverage currently offered only by Title IX.

In the immediate, courts and plaintiffs alike need to engage in greater uptake of current doctrine: courts must extend student-employees the Title VII rights to which they are entitled, and student-employee plaintiffs should plead Title IX claims if Title VII would not be enough to redress their discrimination. In the longer term, courts should evolve Title VII doctrine to be more attendant to the specific needs of student-employees and their intersecting roles.