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An Introduction to Title IX Liability
Spring 2000
[The
Problem of Peer Harassment] [What is Title
IX?]
[What
Did the Davis Case Hold?] [When
is Harassment Unlawful?]
[How
Have Courts Responded?] [What
Should Schools Do?]
[Getting
More Information]
Taunting and teasing among students are rituals
as old as school itself. But not every schoolyard taunt is an innocent
expression of youth. Persistent, unwanted harassment can turn a positive
educational environment into a daily hell for its victims, with serious
and negative psychological and educational effects, especially when the
harassment has a sexual component. While the question of whether such
harassment violates the civil rights of students has been debated in the
courts for years, the clear outlines of a legal doctrine surrounding
peer harassment are only now beginning to emerge. The following
information is designed to acquaint you with the principal issues
surrounding this emerging field of law. It is not intended as a
substitute for individual legal advice. Civil rights cases are complex,
and often turn of subtle factual details. If you or your district is
facing a charge of peer harassment, or seeking to formulate a peer
harassment policy, you should consult with counsel knowledgeable in the
area of school law and civil rights.
The problem of peer harassment may be
worse than you think. One national study completed in 1993 found that
some eighty-one percent of students had been harassed at some point
during their school years, with eight-five percent of girls and
seventy-nine percent of boys reporting at least one incident.[i]
Sexual harassment at school can have serious consequences. Of students
surveyed in the study at issue, twenty-nine percent said they felt less
confident after having been harassed. Twenty-three percent reported not
wanting to attend school as a result of the harassment, and twelve
percent of those harassed dropped out of an extracurricular or an
athletic activity as a result of their experience.[ii] Self esteem,
academic performance, trust in school officials and a student’s sense of
personal safety all may suffer when a student becomes the victim of
sexual harassment at school.[iii] Unreported harassment does not just go
away: statistics indicate that unless confronted and reported, peer
harassment tends to continue.[iv] Sexual harassment is serious business,
and school districts need to take it seriously: Not only does harassment
carry a tremendous risk of harm for students, it also violates federal
law.
What is Title IX,
and why is it suddenly relevant to the question of peer harassment in
the schools? Title Nine is shorthand for Title IX of the Education
Amendments of 1972, a portion of a broad set of laws passed by Congress
designed to eliminate discrimination on the basis of sex in any
education program or activity receiving Federal financial assistance.[v]
Title IX has been in effect since 1972, so you may wonder why it has
suddenly become the topic of so much discussion. While the question of
whether student-on-student sexual harassment has been discussed in the
courts on and off for years, the issue has gained fresh attention
because of a recent decision by the United States Supreme Court. In May
1999, the Supreme Court handed down its decision in Davis v. Monroe
County Board of Education, the first High Court opinion to address
the question of school district liability for student-to-student sexual
harassment.[vi]
The Davis decision is likely to become the guidepost by which
state and federal courts decide peer harassment cases for years to come.
As such, it is important to understand both the severity of the facts
which supported the holding in Davis, and the limits which
Davis will impose on future claims.
What did the Davis case
hold, and what does it mean for students, administrators and
educators? LaShonda Davis was a fifth grader enrolled in a public middle
school in Georgia when a classmate identified only as “GF” began to
harass her with increasing severity. LaShonda routinely reported the
harassment -- which included sexually explicit remarks, and the groping
of her breasts and genitals -- to both her mother and her home room
teacher. Despite these reports, GF persisted in his misconduct.
LaShonda reported him to a gym teacher, another classroom teacher, and
suffered his advances in the presence of still another teacher. When
LaShonda and a group of friends tried to bring her case to the attention
of the school principal, she was sent away with instructions that she
would be contacted if anyone felt the need to talk with her. Despite
follow up calls to school administrators from her mother, nothing was
done to protect LaShonda until GF was prosecuted by local authorities
for sexual battery, to which he pleaded guilty and of which he was
convicted. Meanwhile, LaShonda suffered severe emotional distress, which
lead her to threaten suicide and caused a marked fall of in her
grades.[vii]
LaShonda sued in federal court, and her claims were dismissed at both
the trial court level and on appeal. The lower courts held that Title IX
barred sex discrimination, including sexual harassment, only when that
harassment resulted from the misconduct of a school employee.[viii] The
Supreme Court disagreed, and in finding the school district liable for
damages to LaShonda, set forth the structure under which future peer
harassment claims must be brought.
When is harassment
unlawful? The quick, and not entirely inaccurate answer is
always.
After all, Title IX provides that no person shall be denied the benefits
of an education funded even in part by the federal government on the
basis of sex.
But in considering the implications of Title IX, it is important to
remember that the Davis case creates civil, not criminal, liability for
schools that fail to maintain an harassment free environment for their
students. So a better question might be: when can a school district be
held liable in a federal civil rights lawsuit as the result of peer
harassment? The answer given in Davis is: under limited
circumstances where the harassment is pervasive and severe. What follows
is a checklist of factors and a brief explanation of each.
- The school district in question must be the recipient of
federal funding in order for Title
IX to apply. That is because the Education Amendments themselves are
based on the Congressional spending power: obedience to Title IX in
this sense represents, in a condition placed on the receipt of
federal funds.
- The harassment at issue needs to occur in the context of
school programs or activities in order to
give rise to district liability. This requirement comes from the
text of Title IX itself, and embodies the principle that school
districts can only be held liable for their own misconduct, and not
that of students. So why was the Monroe District held liable based
on the sexual antics of GF? Technically, it was not. Rather, the
district was held responsible for its own failure to step in an
correct the situation once it became aware of how Davis was being
harassed.
- The harassment must be severe. In limiting its holding, the
Supreme Court made plain that routine insults, banter, teasing,
shoving and even gender specific comments were to be expected among
school children, and that these alone do not suffice to create
liability under Title IX. Only when the conduct involved is so
severe, pervasive and objectively offensive
that it deprives its victim equal access to educational opportunity
does Title IX liability attach.
- Note the focus on objectively offensive
behavior. While few would argue that GF engaged in outrageous
behavior, the fact that the victim deems certain conduct insulting
is not, on its own, enough to create liability.
- The conduct in question must be in some form what is considered
sexual harassment under the law.
This can involve a wide variety of misconduct, and educators should
be careful not to allow their preconceptions of what constitutes
sexual harassment get in the way of formulating an effective Title
IX action plan. Read on for more on what might constitute sexual
harassment.
- The acts of peer harassment must be
known to the school district through its teachers,
administrators or other employees before they can form the basis of
liability.
- The district must fail to respond to the harassment in question
with a level of disregard that amounts to a
deliberate indifference to the rights of the students in its
care. That is, the district has either reacted in a manner so
inappropriate, or failed to react in a case where intervention is so
necessary, that its actions or failure to act cannot be considered
reasonable under the circumstances.
In contemplating these standards, it is wise to remember that the
Davis decision is the first in what is likely to become a long line
of cases refining the law of peer harassment. What sound like heavy
burdens for plaintiffs, and standards protective of school districts,
may become more flexible in the months and years ahead. In this regard,
it is instructive to see how other federal courts have responded to the
Davis decision.
How have courts responded
to the decision in Davisis, and what can
we learn from their decisions? At the time of this writing, only
thirty-eight cases have cited the Davis decision nationwide, and
not all of them in the context of peer harassment. These have generally
applied a high standard of proof to the prior notice requirements of
Title IX, reasoning for that liability to be premised on inaction, the
level of awareness and potential control over peer harassment must be
substantial.[ix] Courts have found liability in connection with severe
cases of sexual harassment, but have hesitated to find liability in more
marginal cases.[x]
In short, the few federal district and appellate courts to have
interpreted Davis have taken serious its mandate to limit
liability to severe cases of harassment and inaction.
What should schools do
to protect students and themselves after Davisis?
The first and best advice is to avoid taking a complacent approach to
the issue of peer-on-peer harassment. Students are entitled to a safe,
harassment free learning environment. Schools should strive to provide
such an environment regardless of the potential for civil liability.
Taking the following steps will help to provide such an environment, the
first and best step to avoiding liability under Title IX.
Recognize that peer harassment, like sexual
harassment generally, can take many forms. It is tempting to
think of harassment, especially in a secondary school setting, as male
on female, but that is not always the case. In the employment
discrimination context, courts have recognized that a variety of
harassing conduct can amount to discrimination “on the basis of sex”
including same sex harassment where both parties are straight, and
harassment targeted against gay and lesbian students. Focusing on the
discomfort of the victim, and avoiding stereotypes based on gender
roles, will help recognize harassment in its many forms.
Understand the various categories of sexual
harassment. Generally, most harassment falls into one of two
broad categories. Quid pro quo harassment occurs when one party
conditions an advantage on the other party being willing to submit to
sexual advances. This most often, though not always, occurs in the
context of a superior-subordinate relationship. Hostile environment
harassment can take on a number of forms, and has been broadly defined
as “unwelcome sexual advances, requests for sexual favors, and other
verbal, nonverbal, or physical conduct of a sexual nature by another
student, a school employee, or a third party are sufficiently severe,
persistent, or pervasive to limit a student's ability to participate in
or benefit from an educational program or activity.”[xi]
Take complaints of peer harassment seriously.
Remember that one basis for liability in the Davis case was the repeated failure of the
school district to take seriously the complaints of its students. Every
report of harassment should be investigated to identify all the parties
involved, verify whether the act(s) of harassment in fact took place,
establish the context in which the harassment occurred, and collect
information necessary to support an appropriate response by the school
district.
Institute a sexual harassment policy that is comprehensive, fair and
shaped in consultation with counsel and the community. It should define
sexual harassment in clear but not exclusive terms, articulate a
commitment to eliminating harassment from the learning environment and
establish procedures for the reporting, investigation, punishment and
resolution of cases involving harassment. The detailed steps that should
be taken to formulate such a policy are beyond the scope of this
Briefing Paper. We encourage you to consult the materials listed below
for more information.
Involve employees at all levels in preventing harassment.
Administrators, teachers, counselors and aides should be required to
report all instances of harassment and to intervene on the spot to stop
harassment when they see it. The failure of authority figures to stop
harassment may be misperceived by students as tacit approval of their
misconduct.
Have an appropriate complaint and hearing mechanism in place. Federal
regulations require school districts to identify a Title IX Complaint
Manager and to institute formal procedures for receiving and acting upon
student and faculty complaints of discrimination and harassment.
Students must know to whom their complaints should be addressed, and how
a formal complaint is initiated and followed through.[xii]
Work to restore the victim to a healthy environment. Remember that Title
IX is intended to provide all students with a learning environment free
from harassment. Schools should work toward recreating a safe, lawful
environment for victims of harassment as soon as possible. Toward this
end, consider segregating the perpetrator from the victim, effectuating
transfers if necessary, and cooperating with law enforcement officers
when a crime has been committed. Schools should be ready to provide
counselors and crisis intervention when necessary, and proper
psychological referrals for both the victim and perpetrator. Consider
protective measure, like monitoring the harasser to avoid future
incidents, and following up with the victim to assess his or her
recovery. All these steps must be taken in a manner that recognizes the
due process and privacy rights of the accused, as well as the statutory
rights of the victim, and should ordinarily be taken in close
consultations with legal counsel.
Getting more information is
easy. The ACLU of Ohio offers a number of publications on student
and teen rights generally, as well as a host of other civil liberties
issues. Excellent information on peer harassment and anti-harassment
policies generally is available from the United States Department of
Education Office of Civil Rights at http://www.ed.gov. Of course, no
sexual harassment policy should be implemented or changed without
consulting your lawyer.
Notes:
[i].See: Hostile Hallways: The AAUW
Survey on Sexual Harassment in America’s Schools, American Association
of University Women (AAUW), Washington D.C., 1993.
[ii].Id.
[iii].See: Sexual Harassment: It’s Not
Academic, United States Department of Education
[iv].Id.
[v].Relevant portions of the Education
Amendments are codified at 20 U.S.C. §1681 et seq. Relevant federal
regulatory law promulgated by the United States Department of Education
under the authority of the educations amendments is codified beginning
at 34 CFR §106.1.
[vi].Davis v. Monroe County Board of
Education, 526 U.S. 629 (1999).
[vii].Davis, supra, 526 U.S. at 633-35.
[viii].Davis v. Monroe County Board of
Education, 120 F.3d 1390, 1399-1401 (11th Cir. 1997)(en banc opinion).
[ix].See: Reese v. Jefferson School
District, 2000 WL 320403 (9th Cir. 2000); Wills v. Brown University, 184
F.3d 20 (1st Cir. 1999); Gant ex rel. Gant v. Wallingford Board of
Education, 195 F.3d 134 (2d Cir. 1999); Murrell v. School District
Number One, Denver, 186 F.3d 1238 (10th Cir. 1999).
[x].Compare Soper ex rel. Soper v. Hoben,
195 F.3d 845 (6th Cir. 1999)(rape and sexual imposition) with Adusumilli,
v. Illinois Institute of Technology, No. 98‑3561, 1999 WL 528169 (7th
Cir. July 20, 1999)(occasional, episodic and unconnected instances of
minor physical contact did not support liability).
[xi].See: Protecting Students from
Harassment and Hate Crime: A Guide for Schools, United States Department
of Education, January 1999
[xii].See 34 CFR §106.
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