At Big State University (BSU), a pattern of sexual harassment develops between a professor and his female students. Jane, a student adversely affected by the pattern of harassment, sues not only the professor but also the chancellor of BSU—an official of the state— alleging that he failed to remedy the situation despite being made aware of it through a series of incident reports. Jane’s claims arise solely under the Equal Protection Clause of the Constitution, and she requests damages under 42 USC § 1983. What facts must Jane prove to recover damages for the sexual harassment?
In her case against the professor, the answer is clear. Jane must prove that the professor discriminated and that he acted with a discriminatory intent; that is what the Constitution requires. But what of her case against the chancellor? Besides proving a causal connection between the chancellor’s inaction and her ultimate injury, must Jane also prove that the chancellor’s inaction was motivated by discriminatory intent? If not, what lesser mens rea, if any, must Jane prove? Finally, suppose that the same pattern of harassment occurs at West Point instead of BSU. What facts must Jane prove in a suit against the superintendent of West Point—an official of the federal government—to recover under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics?