Who is responsible for sexual violence in schools? Schools can be liable for such violence under Title IX of the Education Amendments of 1972, a general ban on sex discrimination by educational institutions that receive federal funding.
Of course, Title IX is best known for its dramatic impact on gender equity in athletics (an impact I analyze here, in an earlier column for Justia’s Verdict, co-authored with Deborah Brake in honor of Title IX’s 40th anniversary). But the statute broadly bans all forms of sex discrimination, including sexual harassment. However, what schools are required to do to address the problem of sexual violence in schools—both before and after it happens—is the subject of a complicated set of administrative and judicial standards that make up Title IX law.
In this two-part series of columns—with the second appearing tomorrow, Tuesday, July 10, here on Justia’s Verdict—I will discuss a recent case in which a school district was sanctioned by a federal agency for failing to respond to a complaint of student-to-student sexual assault, and the legal standards that produced that result.
The Facts and Allegations in Student v. Henderson Independent School District
The case involves a female student’s allegation that that she was sexually assaulted by a male student in a band practice room in a Texas public high school. Immediately after the alleged incident, she told an Assistant Band Director (ABD) about it. The ABD took no action and did not report the incident to any other school official or to the police.
The student stayed home the following day and then, when she returned to school, she reported the alleged incident to a second ABD. This ABD did report the incident, to a vice principal, who in turn reported it to the student’s mother, the police, and a child advocacy center.
The very next day, the police notified the student’s mother that its investigation had concluded, and that there would be no criminal charges filed against the alleged assailant. Based on their brief investigation, the police believed that the incident was consensual and therefore not criminal in nature.
Four days later, the complainant and the alleged assailant were both subjected to the same discipline: a 45-day placement in an alternative setting, as punishment for engaging in “public lewdness” in violation of the school’s code of conduct.
The student who alleged that the assault had occurred then filed a complaint with the Office for Civil Rights (OCR) in the Department of Education. OCR is charged with implementing Title IX against “recipients,” meaning those educational institutions that receive any federal funding and thus are bound by Title IX. In her complaint, the student, whose name was not used by OCR, argued that her school district, Henderson Independent School District (HISD) (1) violated Title IX by failing to investigate her complaint of sexual violence or remedy the hostile environment the assault created, and (2) retaliated against her by removing her from school and forcing her to attend an alternative school with her alleged assailant.
After an investigation, OCR concluded that HISD was “non-compliant” with Title IX with respect to both issues. The remainder of this column will describe the basic legal standards that govern judicial and administrative enforcement of Title IX in the sexual harassment context. Then, in Part Two, appearing tomorrow, I will discuss OCR’s ruling in this particular case, which is illustrative of the agency’s new commitment to using Title IX to remedy the growing problem of sexual violence in schools.
Title IX’s Scope and Implementation Scheme
Title IX is broadly worded, but brief. It provides 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 educational program or activity receiving Federal financial assistance.”
Early on, there were three big challenges to Title IX’s scope and operation. Eventually, each was resolved—either by the Supreme Court or by Congress—in favor of discrimination victims.
As a result of these rulings and legislative actions, it is the law that (1) Title IX governs institutions as a whole, as long as any part of the institution at issue receives federal financial assistance; (2) Individuals who suffer actionable discrimination can bring a private lawsuit to enforce it; and (3) Recipients who violate Title IX can be held liable for money damages.
Because Title IX itself is so succinct, a good deal of our understanding of it comes from federal regulations. Regulations adopted early on in the life of the statute, for example, impose affirmative obligations on covered institutions to adopt anti-discrimination policies, and to designate a Title IX officer to oversee compliance with the statute. OCR also has the authority to issue policy guidances reflecting its interpretation of the statute, as well the power to audit institutions, initiate investigations, and impose penalties on non-compliant institutions.
Sexual Harassment Claims Under Title IX
Sexual harassment became an actively litigated issue under Title IX in the 1990s, a decade or more after it had become an issue in the employment context. It wasn’t until the mid-1970s that the notion of “sexual harassment” even had a name, or that anyone tried to document its occurrence or argue that it was a form of actionable discrimination. But after surveys starting appearing and suggesting that the vast majority of working women had experienced sexual harassment in the workplace, plaintiffs and their lawyers began filing lawsuits that laid out a theory of sexual harassment as a form of discrimination. After a few false starts, courts began to recognize that sexual harassment was, indeed, a form of actionable sex discrimination. And the EEOC issued guidelines setting forth a definition of actionable harassment, and standards governing employer liability.
Courts, following these guidelines, recognized both hostile-environment and quid pro quo harassment, and developed various standards to judge when employers should be held liable for harassment by supervisors or co-workers. In 1986, the Supreme Court ruled in Meritor Savings Bank v. Vinson (1986) that sexual harassment is a form of intentional sex discrimination and that employers can be held liable for supervisor harassment based on agency principles (that is, the law of principal and agent, with the supervisor being the agent of the employer).
Then, twelve years of hard-fought litigation later, the Supreme Court weighed in again to explicate just exactly what those principles might mean for liability standards. In a set of companion cases, Faragher v. Boca Raton and Burlington Indus. v. Ellerth, the Court concluded that employers were automatically liable for hostile environment harassment by supervisors, but also that employers could avoid paying damages by proving they had taken reasonable care to prevent and correct harassment in the workplace. (For harassment that results in a tangible employment action, like the victim’s being fired, there is strict liability with no affirmative defense.) For hostile environment harassment of employees by co-workers or third parties, employers are liable if they knew or should have known about the harassment and failed to stop it.
This history is relevant to Title IX because advocates argued hard that Title VII principles ought to apply to Title IX in the sexual harassment context. But in a 1998 case, the Supreme Court rejected that approach and announced unique standards to govern the liability of educational institutions for harassment.
In that case, Gebser v. Lago Vista Independent School District (1998), a middle-school student brought suit because a teacher had fondled and initiated sexual contact with the student during class time (but not on school property). The school district had no grievance procedure for reporting harassment and no anti-harassment policy, and the teacher had gotten in trouble previously for making sexually inappropriate comments in class. The plaintiff argued that the school district should be held vicariously liable because teachers are agents of the school—akin to supervisors in the workplace.
But the Supreme Court concluded that schools are different from workplaces, and that the text and structure of Title IX are different from those of Title VII. It thus ruled that a student alleging harassment by a teacher or other school official may not recover damages from an educational institution unless an official of the school district who, at a minimum, has the authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the harassment.
Unfortunately, the student in Gebser could not meet the newly-established standard because she had never reported the teacher’s conduct to a school official. The fact that the school did not have a policy or grievance procedure—both of which are required by federal regulation—did not give rise to liability for monetary damages. It could only provoke an enforcement action by OCR.
The following year, the Supreme Court agreed to hear a case involving peer harassment, an issue that had given rise to much confusion in lower courts. In that case, Davis v. Monroe County Board of Education (1999), a fifth-grade girl sued, complaining of relentless harassment by a fifth-grade boy. He touched her breasts and genitals; said he wanted to get in bed with her and feel her boobs; and rubbed up against her in a sexually suggestive way. Her mother reported the conduct first to the teacher, then to the supervising teacher, then to the principal, then to the school board. It took three months for the school to even agree to change the girl’s seat so that she wouldn’t have to sit next to the boy in every class. The boy was never disciplined; the girl’s grades dropped, and she tried to commit suicide. Her mother filed a criminal complaint, and the boy pled guilty to sexual battery. The girl eventually filed a lawsuit under Title IX.
The plaintiff argued for the application of a negligence standard, like the one that governs co-worker harassment in the workplace. Because the school knew of the harassment and failed to respond, it should be held liable. Her theory was that the school has a duty to maintain a non-discriminatory environment, and that students ought to be given the same minimum protection that is given to employees in the workplace.
The plaintiff won her case, but not on the legal standard she proposed. Instead, the Supreme Court said that schools can be held liable for harassment by students, but on the same basis as it is liable for harassment by teachers—that is, when the school has actual notice of the harassment and responds with deliberate indifference. Moreover, the Court required that the harassment itself must be severe and pervasive enough to deprive the victim of access to the educational opportunities or benefits provided by the school. Litigation in the years since Gebser and Davis has shown that the actual notice/deliberate indifference standard, as interpreted by lower federal courts, is very difficult for plaintiffs to satisfy.
The OCR’s Administrative Interpretation of Title IX
After Gebser and Davis were handed down, OCR issued a revised policy guidance setting forth its own standards for the administrative enforcement of Title IX. The Gebser/Davis standards only apply to actions for money damages in court. If a complainant seeks only injunctive relief or administrative enforcement, or if OCR initiates an investigation on its own, the standard for compliance is not as high.
In the 2001 guidance, OCR laid out the administrative standards for compliance. For example, OCR imposes the following standard on schools: If a school knows or should know about peer harassment, then it has to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. As noted above, schools also must publish a notice of non-discrimination, adopt and publish grievance procedures, and ensure that their employees are trained to report harassment and to respond to it.
OCR Tackles the Growing Problem of Sexual Violence in Schools
In April 2011, OCR issued a “Dear Colleague” letter (DCL) to clarify the application of Title IX to incidents of sexual violence in schools and universities. The letter served to remind schools of their obligations to promptly and effectively respond to sexual violence if the school knows or should know that it has occurred. While the same standards apply to sexual violence as apply to all forms of sexual harassment, the DCL provides illustrations and warnings that specifically apply to sexual violence.
In Part Two of this Two-Part Series, appearing tomorrow, Tuesday, July 10, I will explain the application of Title IX principles to incidents of sexual violence, as well as the basis for the ruling in Student v. HISD.