Title IX – School’s failure to respond to student-on-student harassment in schools can support a private suit for money damages in extreme cases
0December 12, 2024 by Tom Roberts, Esq.
What is Title IX?
Title IX provides, with certain exceptions not at issue here, that
“no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
First Question - Is the school receiving federal funds?
If the school does not receive federal funding, then Title IX simply does not apply.
Title IX liability applies only to recipient of federal funds
Title IX liability only applies to a recipient of federal funds. A recipient of federal funds may be liable in damages under Title IX only for its own misconduct. The recipient itself must “exclude [persons] from participation in, . . . deny [persons] the benefits of, or . . . subject [persons] to discrimination under” its “programs or activities” in order to be liable under Title IX. The Government’s enforcement power may only be exercised against the funding recipient.
Second Question: Is the School being deliberately indifferent?
The School may be held liable for its own decision to remain idle in the face of known student-on-student harassment in its school. In Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 283, 141 L. Ed. 2d 277, 118 S. Ct. 1989 (1998), the court concluded that a recipient of federal education funds may be liable in damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher. The court rejected a “negligence” standard of knew or should have known, and instead adopted a “deliberate indifference” standard. Rather, the court concluded that a school could be liable for damages only where it itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge. Liability arose, rather, from “an official decision by the recipient not to remedy the violation.” However, a recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action.
The deliberate indifference must, at a minimum, “cause [students] to undergo” harassment or “make them liable or vulnerable” to it.
Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 645
The nature of the State’s power over public schoolchildren is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 655, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995).
Recipients of federal funding may be liable for “subjecting” their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.
Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 646-647
Third Question (part of 2nd Question) Is this an extreme case where the School must be liable?
The US Supreme Court stated “Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. See, e.g., Brief for National School Boards Association et al. as Amici Curiae 11 (describing “dizzying array of immature . . . behaviors by students”). Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.
Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 651-652
Disclaimer
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Category Assault & Battery, Assault & Battery, Civil Rights, General, Hostile Work Environment, Personal Injury Law, Sexual Assault, sexual harassment | Tags: school's liability for student-on-student harassment, school's liability for student-on-student sexual harassment, student-on-student sexual harassment, Title IX
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