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December 31, 2015

Restoring Students’ Protections Against Sexual Harassment in Schools

by Fatima Goss Graves , Adaku Onyeka-Crawford

It’s been over 20 years since the Supreme Court held in Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992), that Title IX of the Education Amendments of 1972—the law that bars sex discrimination in education—bars sexual harassment and that a damages remedy is available in actions brought to enforce that prohibition.

Since Franklin, a confluence of survivor-led grassroots advocacy, attention from policymakers, and media interest have led to an increased focus on sexual harassment and sexual assault in particular. Student- and survivor-led groups such as Know Your IX and End Rape on Campus have shined a light on the ineffective response by institutions of higher education to campus sexual assault. In 2011, the Department of Education Office for Civil Rights (OCR) issued guidance reminding educational institutions of their obligation under Title IX to investigate and address reports of sexual violence (Letter from Catharine Lhamon, Assistant Sec’y, U.S. Dep’t of Educ. Office for Civil Rights, to Colleagues (Apr. 4, 2011), available at 201104.html) and initiated compliance reviews at colleges and universities. And although the public discourse on sexual violence has focused on universities, cases that concern both on- and off-campus sexual assaults among middle and high school students have also received media attention. See, e.g., Victor Blackwell, Teen Used as Bait in Rape Case: “I Was Set Up, (Oct. 29, 2014, 8:49 AM),; John Agar, Forest Hills Assault: Feds Find District Failed to Properly Investigate Sex Assault Allegations Involving Student Athlete, (May 22, 2013, 9:00 AM),

The heightened awareness of Title IX’s protections has led to survivors of sexual assault filing a record number of complaints with the U.S. Department of Education. As of March 2015, nearly 100 colleges were under investigation. E-mail from Erin Randall, Confidential Assistant, U.S. Dep’t of Educ. Office for Civil Rights, to Helen Oh, Program Assistant, Nat’l Women’s L. Ctr. (Feb. 23, 2015) (on file with author). As more students are alerted to their rights under Title IX, however, they are likely to also discover the unfortunate limits on the ability of students to hold their schools accountable in court. Two cases have detailed the standard for damages in Title IX sexual harassment cases. In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court determined that for an educational institution to be liable for damages for teacher-on-student sexual harassment under Title IX, an appropriate school official must have had actual knowledge of the harassment and, in the face of that knowledge, been deliberately indifferent. The Court echoed that same standard in the context of student-on-student harassment in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999).

Together, these cases have raised the bar for bringing private lawsuits for damages under Title IX. This article explains why the current Title IX standards for damages in harassment claims are unsound and explores promising federal and state law solutions that could both restore the right of recovery for students who experience harassment in school and provide meaningful incentives for school districts to promote safe school environments. A robust student movement has been ignited to challenge the status quo response to sexual assault on college campuses; unfortunately, the law is not fully prepared to meet their demand for change.

The Hurdles Set for Title IX Sexual Harassment Plaintiffs in Gebser and Davis

In a 5–4 decision, the Court in Gebser rejected arguments that damages should follow automatically when a teacher has harassed a student and the “teacher’s authority over the student facilitates the harassment.” Gebser, 524 U.S. at 282–83. It likewise rejected the argument that a school district could be liable for harassment when it “knew or ‘should have known’ about harassment and failed to uncover and eliminate it.” Id. Instead of borrowing from the approach applied to sexual harassment in the workplace, the Court developed a new standard that has since erected a series of hurdles, grossly undermining Title IX’s protections.

The first hurdle established in Gebser is a requirement that, to recover damages for sexual harassment, a plaintiff must show that the school has received “actual notice” of the harassment. The Court made clear that the knowledge of the teacher/harasser does not constitute “actual notice”; instead, an “appropriate official” of the school must receive notice. Title IX harassment plaintiffs must also demonstrate that the required notice was given to an “appropriate official” with authority to “take corrective action.” The Court did not provide examples of such persons, but some courts have made this “appropriate official” requirement extremely burdensome—with some courts holding that even notifying a school principal did not constitute appropriate notice. See, e.g., Santiago v. Puerto Rico, 655 F.3d 61 (1st Cir. 2011). In this case, a student was sexually abused by a bus driver. The student’s mother attempted to contact the principal and reported the harassment to a teacher, who referred the mother to a social worker but did not report it to the principal. The court held that even if the mother had successfully informed the principal, he would not have been an appropriate official because he had no control over the bus driver, who was employed by an independent contractor.

Beyond onerous notice requirements, the Court further restricted recovery for damages in a Title IX harassment claim by determining that the school district response must amount to “deliberate indifference to discrimination.” Gebser, 524 U.S. at 290. The Court expanded upon this standard for peer harassment claims in Davis, holding that damages are available only when the school’s response is “clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 618. The deliberate indifference standard has resulted in several holdings where school districts took what are clearly inadequate steps, such as maintaining the harasser in the same classroom or employing ineffective discipline policies, without meeting the Court’s “clearly unreasonable” test. See, e.g., K.F. ex. rel. C.F. v. Monroe Woodsbury Central School District, 531 F. App’x 132 (2d Cir. 2013). In this case, the court held that a school was not deliberately indifferent to continuous harassment suffered by a student in middle and high school, which included two separate sexual assaults. The school responded to the harassment, not by disciplining the harassers, but by offering to remove the victim from the school. The court held that although it did not “ratify or endorse” the school’s response, it was not clearly unreasonable in light of known circumstances.

Davis provided a final obstacle for Title IX harassment plaintiffs. In addition to reaffirming the rigorous Gebser standard, the Court added that actionable harassment among peers 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 school.” Davis, 526 U.S. at 650. Following Davis, some courts have made the burden for plaintiffs in Title IX peer sexual harassment cases nearly insurmountable. See, e.g., Ross v. Corp. of Mercer University, 506 F. Supp. 2d 1325, 1357 (M.D. Ga. 2007). In this case, the court concluded that a “single incident [of rape], however traumatic to its victim, is not likely to be pervasive, or to have a systemic effect on educational activities.”

The combined Gebser and Davis standards have sorely undermined the remedies available for student victims of harassment and have all but eliminated incentives for funding recipients to take steps to address and prevent harassment in schools. However, legislative and administrative action on the federal and state levels can provide students with a broader range of legal protections more consistent with the purposes of Title IX.

Federal Reform: Revisiting the Gebser and Davis Standards

In Gebser, the Supreme Court signaled that legislative action could roll back the deliberate indifference standard. Gebser, 524 U.S. at 292. In 2008, Congress introduced an omnibus civil rights bill that would have done just that. In addition to revising the Title IX sexual harassment standards, the Civil Rights Act of 2008 would have addressed a number of Supreme Court decisions that have undermined the enforcement of federal civil rights statutes, including Alexander v. Sandoval, 532 U.S. 275 (2001); Barnes v. Gorman, 536 U.S. 181 (2002); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000); Circuit City Stores v. Adams, 532 U.S. 105 (2001); Buckhannon Board & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598 (2001); Alden v. Maine, 527 U.S. 706 (1999); and Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002). The Act also would have also addressed gaps in the Equal Pay Act of 1963, 29 U.S.C. § 201 et seq., to enhance enforcement of equal pay provisions and eliminate the Title VII cap on damages. A prior version of the bill was introduced in 2004 but did not move forward. H.R. 3809, 108th Cong. (2004); S. 2088, 108th Cong. (2004).

Among other things, the Civil Rights Act of 2008 would have made full legal relief—including damages, costs, and fees—available when harassment occurred in an educational setting and the requisite standards were met. The Act would have applied a strict liability standard when unlawful harassment from an educational institution’s agent or employee resulted in tangible, adverse action, such as a lowered grade or expulsion from school. In addition, educational institutions would have been vicariously liable for agents’ or employees’ harassing conduct that did not result in tangible, adverse action; an institution would be liable unless it could show that it “exercised reasonable care to prevent and correct promptly any harassment” and demonstrate that the harassed individual unreasonably “failed to take advantage of preventive or corrective opportunities.”

To demonstrate that it “exercised reasonable care to prevent and correct promptly any harassment” under the Act, an educational institution would be required to prove that it had established and publicized a comprehensive harassment prevention policy and complaint procedure, investigated reported harassment promptly and thoroughly, and took immediate and corrective action designed to stop or prevent further harassment. Finally, educational institutions could be negligently liable for harassment by persons who are not agents or employees if the institution reasonably knew about the harassment and failed to stop or prevent its continuation. Through this framework, therefore, the Civil Rights Act of 2008 could provide meaningful incentives for schools to take steps to prevent sexual harassment and to address it when it occurs.

State Level Reform: L.W. v. Toms River Regional School Board of Education

State laws that bar discrimination +in all places of public accommodation or in educational programs could also provide another avenue for students who are sexually harassed to obtain damages. For example, the Florida Education Equity Act specifically prohibits sex discrimination in education, while the New Jersey Law Against Discrimination (LAD) bars discrimination in all places of public accommodation, including schools. Compare. Fla. Stat. §§ 1000.05 et. seq., with N.J. Stat. Ann. §§ 10:5-1 et seq. There often are critical differences between Title IX and state antidiscrimination laws that allow states to provide fuller protections for students against harassment in schools.

The 2007 New Jersey Supreme Court decision L.W. v. Toms River Regional School Board of Education, 915 A.2d 535 (N.J. 2007), illustrates this point. In that case, a mother filed a complaint with the New Jersey Division on Civil Rights under the New Jersey LAD on behalf of her son, who was harassed because of his perceived sexual orientation. The purpose of the LAD is to ensure “that the civil rights guaranteed by the State Constitution are extended to all its citizens.” Id. at 546. The Act covers all places of public accommodation, including any educational institutions supervised by the New Jersey State Board of Education and expressly includes a private right of action for damages. N.J. Stat. Ann. §§ 10:5-1 et seq.

In Toms River, the New Jersey Supreme Court rejected the Davis and Gebser models of liability and emphasized that the LAD was not subject to any of Title IX’s limitations. Rather, in interpreting the LAD, the court emphasized that courts should apply the same standards as are applied to workplace discrimination and that any other conclusion would conflict with the state’s strong commitment against discrimination and its public policy of protecting students. Toms River, 915 A.2d at 550. The court recognized that, “to avoid liability,” a school district must “implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment.” Id. The decision in Toms River thus strikes the right balance, providing incentives for school districts to address harassment and protect students from invidious discrimination in schools.

Although the Toms River decision applies only in New Jersey, similarly broad protections can be construed in other states where there are laws with a structure and history comparable to that of the LAD. For example, although the Rhode Island Supreme Court has not yet considered the appropriate standard for a sexual harassment case, students in Rhode Island may be entitled to a standard more flexible than Title IX’s that is to be found in the Rhode Island Civil Rights Act of 1990 (RICRA). R.I. Gen. Laws §§ 45-112-1 et seq. The Maine Human Rights Act, Me. Rev. Stat. Ann. tit. 5, §§ 4551 et. seq., and the Minnesota Human Rights Act, Minn. Stat. § 363.01 et. seq., among other state laws, may similarly be appropriate candidates for a less onerous standard for sexual harassment claims in schools. In fact, a Missouri appellate court applied the same negligence standard to a case involving a school district’s liability for peer student harassment under the Missouri Human Rights Act. Doe ex. rel. Subia v. Kansas City, Mo., School District, 372 S.W.3d 43, 52 (Mo. Ct. App. 2012). Finally, victims of harassment may be able to benefit from recently enacted anti-bullying statutes, which exist in 49 states. Most of the laws require schools to prohibit harassment based on protected traits (including sex) and require districts to take prompt action to investigate and remedy harassment. Penalties for failure to comply vary from state to state— from waiving qualified immunity (e.g., S.D. Codified Laws § 15.1-19- 21 (stating school district is immune from suit unless it did not follow its anti-harassment policy)) to creating a cause of action (Vt. Stat. Ann. tit. 16, § 570f (establishing a cause of action for victims of harassment that have exhausted administrative remedies)). There are few decisions interpreting statutory liability; nonetheless, anti-bullying laws could be another way for students to hold their schools accountable for hostile school environments.

In enacting Title IX, Congress intended both to “avoid the use of federal resources to support discriminatory practices” and to “provide individual citizens effective protection against those practices.” But by adopting the rigid Gebser and Davis standards, the Supreme Court ensured that Title IX harassment claims would receive short shrift from courts around the country, and, as a result, that schools would be slow to adopt effective strategies for ending harassment. The renewed attention to sexual assault on college campuses highlights the need to revisit these standards to ensure that schools take the necessary steps to prevent and effectively remedy sexual harassment when it occurs.


Fatima Goss Graves is vice president for Education and Employment at the National Women’s Law Center, where she works to promote the rights of women and girls at school and in the workplace. Adaku Onyeka-Crawford is a fellow at the National Women’s Law Center.