Sexual assault is a serious problem for students at all educational levels. Both student-on-student and employee-on-student sexual assaults occur frequently around the country. For this reason, it is imperative that educational institutions take the initiative to eliminate sexual assault from their campuses. This is done through the adoption and enforcement of policies designed to prevent assault and keep students safe.
However, the unfortunate reality is that many educational institutions unreasonably deny and ignore the warning signs of sexual assault occurring within their school. Too often, schools fail to respond effectively to real incidents even after adopting anti-sexual assault policies. An educational administration’s ignorance, fear of liability, and concern about public perception can cause the institution to downplay or altogether deny credible reports of sexual assault. Victims need to understand their rights. You have the right to safety on campus. You have the right to speak your truth when something goes wrong. And you have the right to hold your school accountable for sexual misconduct when they fail to keep you safe.
Legal Rights for Survivors of Sexual Assault in Educational Institutions
It is important for survivors of sexual assault to understand their legal rights and options for recourse arising from sexual abuse within an educational institution. Title IX is a federal civil rights law that was passed as part of the Education Amendments Act of 1972. The law prohibits discrimination in educational institutions receiving federal funding assistance (i.e. public schools and universities). Further, the law considers sexual assault as a form of gender discrimination, thereby providing a path for recourse directly from an educational institution that failed to protect its students. Specifically, Title IX “is enforceable through a judicially implied private right of action, through which monetary damages are available.” Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018).
The United States Sixth Circuit Court of Appeals has recognized at least four theories of Title IX liability in cases alleging gender discrimination in university disciplinary proceedings: (1) erroneous outcome; (2) selective enforcement; (3) deliberate indifference; and (4) archaic assumptions. Id. The 6th Circuit has also recognized the viability of a fifth theory, hostile environment, in other contexts. Id. (citing Doe v. Claiborne County, 103 F.3d 495, 515 (6th Cir. 1996)). The most common theory involved in pending Title IX cases is the theory of “deliberate indifference.”
The United States Supreme Court has recognized the private cause of action arising from an educational institution’s violation of Title IX for deliberate indifference in the context of both teacher-to-student and student-to-student sexual assault. The seminal case involving a school’s liability under Title IX for employee-student sexual discrimination is Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). In Gebser, a high school student and her parents sued a school district for damages under Title IX, alleging that a teacher sexually harassed her. The Supreme Court rejected the use of agency or negligence principles to render the school district liable for monetary damages under Title IX. See id. at 1997. Ultimately, the Court held that a school district may be held liable for damages under Title IX, but only if an “appropriate person” within the district had “actual notice” and was “deliberately indifferent” to the underlying violation. Id. at 1999.
The following year, a school’s liability under Title IX for student-student sexual discrimination was addressed by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)). In Davis, the mother of a fifth-grade student brought a private action against the school for monetary damages, alleging that her daughter had been the victim of sexual harassment by another student in her class. The issue before the United States Supreme Court was whether a private damages action may lie against the school board in cases of student-on-student harassment. The Supreme Court held that a private Title IX damages action may be brought against a school board in cases of student-on-student harassment, but only where the funding recipient is deliberately indifferent to sexual harassment, of which the recipient has actual knowledge, and that 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. Id. at 663.
Both the Gebser case and Davis case confirm that an educational institution may be held liable for sexual assault within the institution or one of its programs if the following elements are met: (1) the student suffered sexual harassment, (2) the funding recipient had actual knowledge of the sexual harassment, and (3) the funding recipient was deliberately indifferent to the harassment.
A. FIRST ELEMENT – DEFINITION OF SEXUAL HARASSMENT UNDER TITLE IX
The definition of sexual harassment under Title IX is set forth in the Code of Federal Regulations, 34 C.F.R. 106.30, which states as follows:
Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
(i) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
(ii) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
(iii) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
The definition of sexual assault distinguishes between three categories of conduct which qualify as sexual harassment: (1) Quid Pro Quo (“something for something”) behavior; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; and (3) definitions of criminal sexual harassment from other federal legislation. Therefore, if the conduct does not constitute quid pro quo behavior or meet the definition of sexual assault under the incorporated federal statutes, the conduct must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”
B. SECOND ELEMENT – ACTUAL KNOWLEDGE
The notice required under the new rule is two-fold: First, the rule requires actual knowledge of the sexual discrimination by the recipient. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. Second, the actual knowledge must be received by an “appropriate person” within the recipient’s organization. For elementary schools and secondary schools, an appropriate person is defined as any employee of a recipient’s organization. 34 C.F.R. 106.30. For post-secondary schools, an appropriate person is defined as the Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient. Id.
C. THIRD ELEMENT: DELIBERATE INDIFFERENCE
A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is “clearly unreasonable in light of the known circumstances.” 34 C.F.R. 106.44(a). Generally, this inquiry is determined on a case-by-case basis considering the totality of circumstances regarding the educational institution’s response.
If the foregoing elements can be satisfied, a survivor of sexual assault may seek compensation directly from the educational institution for damages resulting from the sexual assault. Accordingly, Title IX can be an important federal law for survivors of sexual assault to seek redress for the harms caused by the institution, and also incentivizes institutions to thoroughly investigate complaints of sexual assault to prevent such conduct from occurring within its programs. Hopefully, Title IX will continue to help eradicate sexual assault in educational institutions for years to come.
If you feel you’ve experienced campus sexual assault or abuse by an employee or fellow student, we’re listening.