An interesting aspect of municipal law, recently discussed at this year’s DRI Civil Rights and Governmental Tort Liability Seminar, concerns school district liability pursuant to Title IX of the Education Amendments of 1972. Per the U.S. Department of Education, Title IX prohibits discrimination based on sex in education programs and activities that receive federal financial assistance, specifically providing, “[n]o 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[.]”
The scope of Title IX liability for school districts, and the potential damages they face, continues to evolve within our court system, especially in the face of changing technology. This is the first in a series of articles that seeks to provide an overview of relevant Title IX precedent, where such litigation currently stands and where it may go in the future. The focus of this first article is the case Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998), in which the Supreme Court resolved an ongoing conflict within our circuit courts and established the current legal standard utilized to impose liability on a school district for Title IX violations by an employee of that school district.
Alida Star Gebser, a high school student in the Lago Vista Independent School District, had a sexual relationship with one of her teachers. Gebser did not report the relationship to school officials. After the couple was discovered having sex, the teacher was arrested and the school district terminated his employment. Before the discovery of the relationship, the high school’s principal received multiple complaints that the same teacher made sexually suggestive remarks to students from the parents of two other students. When confronted, the teacher apologized for the comments and was warned about his conduct, and the principal did not investigate the matter further. Gebser and her mother filed suit raising, among other things, a claim for damages against the school district under Title IX.
The Federal District Court granted the school district’s motion for summary judgment. In rejecting the Title IX claim against the school district, the court reasoned that the statute “was enacted to counter policies of discrimination . . . in federally funded education programs,” and that “[o]nly if school administrators have some type of notice of the gender discrimination and fail to respond in good faith can the discrimination be interpreted as a policy of the school district.” Here, the court determined, the parents’ complaint to the principal concerning the teacher’s comments in class was the only one the school district had received about the teacher, and that evidence was inadequate to raise a genuine issue on whether the school district had actual or constructive notice that the teacher was involved in a sexual relationship with a student. In affirming, the Fifth Circuit Court of Appeals held that school districts are not liable under Title IX for teacher-student sexual harassment unless an employee with supervisory power over the offending employee actually knew of the abuse, had the power to end it, and failed to do so, and ruled that petitioners could not satisfy that standard.
“Actual Notice” and “Deliberate Indifference”
After granting certiorari, the Supreme Court, in a 5-4 ruling written by Justice O’Connor, held that a Title IX plaintiff could not recover damages “unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.” Later on, the Court provided that deliberate indifference occurs when such an official possesses “actual knowledge of discrimination,” and, “fails adequately to respond.”
In applying the standard of actual notice and deliberate indifference to the Gebser case, the Supreme Court ruled that the complaints made to the high school principal was insufficient to alert the school district that the teacher was involved in a sexual relationship with one of the students, and that the school district’s inaction did not amount to either actual notice or deliberate indifference. Relying upon the statutory scheme within Title IX, the Court reasoned that, “[i]t would be unsound, we think, for a statute’s express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient’s knowledge or its corrective actions upon receiving notice.” With that rationale, the majority on the Court refused to allow recovery under a less-strict standard than actual knowledge unless Congress addressed this issue directly.
Justice Stevens, writing in dissent, criticized the majority’s holding, stating that, “[a]s a matter of policy, the Court ranks protection of the school district’s purse above the protection of immature high school students that those rules would provide.” Stevens concludes his dissent asserting that, “[b]ecause those students are members of the class for whose special benefit Congress enacted Title IX, that policy choice is not faithful to the intent of the policymaking branch of our Government.”
In its decision in Gebser, the Supreme Court resolved the split among the circuits and set the standard we have today of liability for school districts under Title IX. In the wake of the Court’s decision, a plaintiff must now prove what the school district knew and at what time that information was known. These cases are more difficult to prove than under the alternative standards utilized prior to Gebser, but not impossible when a student provides actual notice to an appropriate person. This, in turn, has led to the proliferation of “Gebser letters”, written documents from students and/or their parents with the intent to place a school district on written notice of alleged harassment or bullying. With a written record of notice, the only question remaining pursuant to Gebser would be whether the school acted with deliberate indifference in response. Even with the heightened standard provided in Gebser, School districts must take care to respond appropriately to any notice, whether written or otherwise, to alleged harassment to avoid liability under Title IX for the conduct of its employees.