Supreme Court Holds That Schools May be Held Liable Under Title IX for Student-on-Student Sexual Harassment

In a decision anticipated but dreaded by educational institutions, the Supreme Court ruled on May 24, 1999, that schools receiving federal funding may be held liable under Title IX for student-on-student sexual harassment. The case, Davis v. Monroe County Board of Education et al., 1999 WL 320808, provides a small measure of solace for school administrators, however, because it imposes a relatively stringent standard of proof for would be plaintiffs. According to the Court, liability may only be imposed where schools are (1) "deliberately indifferent to sexual harassment of which they have actual knowledge," and (2) the harassment "is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."

Davis involved a female fifth-grade student at a public school in Georgia who alleged that she had been subjected to a prolonged pattern of sexual harassment by a male classmate. The male student's conduct, which continued over many months, included rubbing himself against the female student, attempting to touch her breasts and genital area, and making vulgar and sexually suggestive comments. According to the complaint, the female student reported the initial incidents to both her mother and to her classroom teacher. The mother also contacted the teacher directly and was assured that the school principal had been informed of the incidents. Notwithstanding the reports, the school allegedly took no disciplinary action against the male student and the harassment continued until he finally was charged with and plead guilty to sexual battery. The complaint specifically alleged that the Monroe County Board of Education ("Board") failed to train its personnel on how to respond to peer sexual harassment, had not established a policy on the issue, and failed to investigate or remedy the student's complaints.

The student's mother filed suit in federal court against the Board, seeking both compensatory and punitive damages. The district court dismissed the claim on the ground that Title IX provided no basis for liability absent an allegation that the Board or an employee of the Board participated in the harassment. On appeal, an Eleventh Circuit panel reversed, holding that just as Title VII encompasses a claim for damages for a sexually hostile work environment created by co-workers and tolerated by the employer, Title IX encompasses a claim for damages due to a sexually hostile school environment created by a fellow student or students when the supervising authorities knowingly fail to eliminate the harassment. The Board's motion for a rehearing en banc was granted and the full Circuit vacated the panel decision and affirmed the district court's decision to dismiss the Title IX claim against the Board. The Supreme Court granted the student's petition for certiorari.

In a five to four decision divided largely along ideological lines, the Supreme Court reversed the Eleventh Circuit and remanded the case to the district court for further proceedings. Writing for the majority, which included Justices Stevens, Souter, Ginsburg and Breyer, Justice O'Connor extended the Title IX standard of liability for teacher-on-student harassment established in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), to the student-on-student harassment context. The Court reiterated the Gebser holding that unlike Title VII, where employers may be held liable for the misconduct of employees under agency principles, a recipient of federal funds is subject to liability under Title IX only for its own misconduct. However, the Court rejected the Board's characterization of the claim as an attempt to hold the Board liable for the male student's misconduct. Rather, the petitioner sought to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment. Invoking the "deliberate indifference" standard applied in Gebser, which requires actual knowledge of the misconduct, the Court concluded that deliberate indifference to known acts of student-on-student harassment may give rise to a claim for damages under Title IX.

Responding to the dissent's assertion that the Court's decision would open the floodgates to civil suits against schools, Justice O'Connor identified several factors she contended would act to limit liability under Title IX. First, liability exists under Title IX only where the funding recipient has disciplinary authority over or otherwise has the ability to control the harasser. Second, to be actionable, the harassment must take place in a context subject to the school's control. Together, these factors restrict liability to those circumstances "wherein the [funding] recipient exercises substantial control over both the harasser and the context in which the known harassment occurs." Justice O'Connor concluded that the male student's harassment clearly occurred in a context - during school hours and on school property - over which the Board retained substantial control. Similarly, given the young age of the harassing student, the Board was in a position to exercise substantial control over the child's conduct; a degree of control that might not be expected in a university setting.

Justice O'Connor maintained that school administrators would retain flexibility under the Court's holding to remedy student-on-student harassment as circumstances warrant, so long as the school's response was not "clearly unreasonable in light of the known circumstances." Turning to the type of harassing conduct sufficient to rise to the level of actionable discrimination, the Court drew upon Title VII concepts and stated that for schools to be held liable, the harassment must be "so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the schools." According to the majority, whether the test is satisfied will depend on the "constellation of surrounding circumstances, expectations and relationships . . . including, but not limited to, the ages of the harasser and the victim and the number of individuals involved."

The Davis decision raises nearly as many questions as it answers and presents the specter, as the dissent argued, of "an avalanche of liability" for schools receiving Title IX funding. Among the many issues which will have to be clarified through subsequent litigation in the lower courts are: which school officials must know of the harassing conduct before the harassment becomes actionable; what does or does not constitute a "clearly unreasonable" response to peer harassment on the part of school officials; and what are the parameters of behavior that will rise to the "severe and pervasive" level in different school environments. Given the availability of unlimited damages under Title IX, it is reasonable to assume that the plaintiffs' bar will be pushing the envelope on this new cause of action. In addition, the advent of peer harassment litigation under Title IX is likely to spawn analogous suits under common law theories against private schools which do not receive federal funding.

Fortunately for school officials, there are valuable lessons to be learned from the proactive strategies to combat harassment developed by employers in the Title VII area. First, educational institutions must establish policies that alert personnel to the critical importance of recognizing and responding to harassment, whether teacher-on-student or peer-on-peer. Second, schools must develop clear reporting guidelines and allocate responsibility for conducting investigations. Third, once on notice of possible sexual harassment of students, schools must take immediate and appropriate steps to promptly, thoroughly and impartially investigate what occurred. Fourth, and perhaps most critically, school officials must then take prompt action reasonably calculated to end any harassment, eliminate any hostile environment created, and prevent harassment from occurring again.