As was mentioned previously, the purpose of this series of articles is to provide an overview regarding the scope of Title IX liability for school districts and the potential damages they face, which continues to evolve within our court system, especially in the face of changing technology. The first article focused on Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998), which established the current legal standard utilized to impose liability on a school district for Title IX violations where it is deliberately indifferent to known acts of teacher-student harassment. This article will focus on a subsequent Supreme Court decision, Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), in which the court held that a school district may be liable under Title IX where it is deliberately indifferent to known acts of student-on-student harassment.
LaShonda Davis, a fifth-grade student at Hubbard Elementary School in Monroe County, Georgia, was subjected to repeated sexual harassment of both a verbal and physical nature by one of her classmates. Unlike the situation in Gebser, Davis told several teachers about this harassment, but no disciplinary action was taken in response. This harassment continued over the course of several months, until the offending student was charged with, and pled guilty to, sexual battery for his misconduct. Davis and her mother filed suit seeking damages against the school board, superintendent, principal and teachers pursuant to Title IX for their alleged deliberate indifference to known harassment, thereby creating “an intimidating, hostile, offensive and abus[ive] school environment in violation of Title IX.”
The Federal District Court granted the defendants’ motion to dismiss Davis’ complaint. Specifically, the court dismissed the claims against individual defendants on the ground that only federally funded educational institutions are subject to liability in private causes of action under Title IX. With regards to the school board itself, the district court held that Title IX provided no basis for liability absent an allegation “that the Board or an employee of the Board had any role in the harassment.” Davis appealed the decision dismissing her Title IX claim against the Board, and a panel of the Court of Appeals for the Eleventh Circuit initially reversed the district court, determining that student-on-student harassment was a cognizable cause of action under Title IX. The Eleventh Circuit, thereafter, granted the Board’s motion for rehearing en banc, in which it affirmed the District Court’s decision. In coming to that decision, the Eleventh Circuit determined that Title IX provides recipients with notice that they must stop their employees from engaging in discriminatory conduct, but fails to provide a recipient with sufficient notice of a duty to prevent student-on-student harassment.
Gebser Applies to Student-on-Student Harassment
After granting certiorari, the Supreme Court, in a 5-4 ruling written by Justice O’Connor, reversed the Eleventh’s Circuit’s decision. In doing so, the Court held that a Title IX plaintiff has an implied private right of action under Title IX against a school district in cases of student-on-student harassment if 1) the school district knew about and was deliberately indifferent to it; and 2) the harassment in question was found to 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 school (i.e., the Gebser Standard).
In coming to the determination that the Gebser standard applies to situations involving student-on-student harassment, the Supreme Court reasoned that where the misconduct occurs during school hours and on school grounds, the misconduct is taking place “under” an “operation” of the funding recipient. In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. Furthermore, the majority stressed the fact that, in this setting, the Board exercises significant control over the harasser. Accordingly, the Court held that recipients of federal funding may be liable for subjecting their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.
Justice Stevens begins his dissent with a warning that Congress’s Spending Power, if wielded without concern for the federal balance, “has the potential to obliterate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” He provides that “[a] vital safeguard for the federal balance is the requirement that, when Congress imposes a condition on the States’ receipt of federal funds, it must do so unambiguously,” and criticizes the majority for eviscerating this clear-notice safeguard with regards to the Court’s Spending Clause jurisprudence. As a result, Justice Stevens opines that the majority not only imposes on States liability that was unexpected and unknown, but the contours of which are, as yet, unknowable.
In its decision in Davis, the Supreme Court held that the Gebser standard – that a school district may be liable for damages under Title IX where it is deliberately indifferent to known acts of teacher-student sexual harassment – also applies in cases of student-on-student harassment. Inarguably, this case has expanded Title IX’s scope and has opened the door to additional lawsuits against school districts. However, it should be noted such liability appears to be triggered only in those situations demonstrating blatant disregard on the part of a school district or its officials. Accordingly, as was the case regarding allegations against school employees in Gebser, school districts must also take care to respond appropriately to complaints to alleged student-on-student harassment in order to comply with Title IX. It is advisable that school districts review their harassment policy, both to ensure compliance with Title IX as well as to provide its teachers and administrators clear guidance on how to respond to such situations should they arise.