Schools, school districts, and state education departments nationwide are examining and revamping their anti-bullying policies to better address the issue of LGBT bullying. The issue is often controversial. For example, after six teen suicides—including at least three attributed to gay bulling—Minnesota's Anoka-Hennepin School District amended, but did not abolish, a controversial curriculum policy mandating "neutrality" in classroom discussions of sexual orientation, which barred discussion of LGBT issues in schools. Some parents and students claimed the policy left teachers and administrators uncertain as to what they could say to students about sexual orientation, undermining faculty and staff efforts to stop the bullying of LGBT students. In a May 24, 2011, letter to the district, seeking the repeal of the neutrality policy, the Southern Poverty Law Center (SPLC) and National Center for Lesbian Rights (NCLR) described the policy as singling out LGBT students and preventing school employees from addressing bullying.
The U.S. Department of Education also has addressed the bullying problem. On October 26, 2010, the Department's Office for Civil Rights (OCR) wrote to the administrators of all schools receiving federal funding to remind them how important it is to implement and enforce anti-bullying policies that protect LGBT students from anti-gay harassment. In a "Dear Colleague Letter," the OCR reiterates that some anti-gay bullying may trigger the school's responsibilities under one or more federal antidiscrimination laws, including Title IX, which prohibits discrimination on the basis of sex in education programs receiving federal funds.
Title IX and Gay Bullying
Title IX provides that "[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." 20 U.S.C. § 1681(a). The Dear Colleague Letter warns that school districts violate Title IX and OCR regulations when student peer-on-peer harassment based on sex is sufficiently serious that it creates a hostile environment, "and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees."
This statement is supported by jurisprudence of courts from coast to coast, including the U.S. Supreme Court. In Davis v. Monroe County Board of Education, the Supreme Court held that a Title IX funding recipient may be held liable for student-on-student harassment where the harassment was severe, pervasive, and objectively offensive; the school district had actual knowledge of the harassment; and it acted with deliberate indifference to the harassment. A plaintiff must establish that the harassment of students is so severe, pervasive, and objectively offensive, and that it so undermines and detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities.
Though Title IX does not prohibit discrimination on the basis of perceived orientation, in some cases, harassment based on gender identity or orientation (even perceived orientation) may occur "because of" sex and, therefore, be sexual harassment of the type proscribed by Title IX. According to both OCR and numerous federal courts, harassment of students may constitute the type of sex discrimination prohibited by Title IX if it arises out of sex-based stereotyping or out of the student's failure to conform to stereotypical notions of masculinity and femininity. The Dear Colleague Letter provides the example of a gay student who is subject to ridicule because he participates in nontraditional extracurricular activities or dresses in a way that does not conform to stereotypical notions of how boys should behave. The letter expressly and unequivocally states that a "school is responsible for addressing harassment incidents about which it knows or reasonably should have known," and that, when responding to harassment, "a school must take immediate and appropriate action to investigate or otherwise determine what occurred." Thus, failing to enforce an anti-bullying policy could amount to "deliberate indifference" and leave a school or school district open to liability for violating Title IX.
The Dear Colleague Letter was a not-so-gentle reminder for schools of their responsibility pursuant to Title IX to protect all students, including LGBT students, from sexual harassment.
Title IX Cases Based on LGBT Bullying in Schools
The Title IX responsibility of schools as it relates to LGBT students and anti-gay bullying is not new. In March 1997, the Department of Education released Title IX guidelines for schools that, for the first time, explicitly stated that while Title IX does not prohibit discrimination on the basis of sexual orientation, it prohibits sex-based harassment against homosexual students as well as heterosexual ones. That same year, Carolyn Wagner filed a complaint with the OCR against the Fayetteville, Arkansas, School District, seeking relief under Title IX for the years of homophobic harassment and bullying that her son, William, had endured while a student in the district and to which teachers and school administrators had turned a blind eye. It was the first time Title IX was used to address the bullying of gay and lesbian students, and, in 1998, the OCR and the Fayetteville School District reached an agreement requiring both OCR and the school district to recognize that sex-based harassment of gay and lesbian students may fall under Title IX.
Following the Wagner case and the Supreme Court's 1999 holding in Davis that student-on-student sexual harassment permits a private action for damages against a school board receiving federal funds under Title IX, students and their parents began to seek legal as well as administrative remedies and to bring Title IX claims against schools that, they claimed, failed to provide the protection Title IX requires. In 2000, in Ray v. Antioch Unified School District, a California federal court became one of the first to recognize that anti-gay bullying may be actionable under Title IX. 107 F. Supp. 2d 1165 (N.D. Cal. 2000). Just one month later, in Montgomery v. Independent School District No. 709, 109 F. Supp. 2d 1081, 1093 (D. Minn. 2000), a Minnesota federal court did the same. There, a student brought an action based, in part, on Title IX, claiming that a variety of school district officials—including teachers, bus drivers, principals, assistant principals, playground and cafeteria monitors, locker room attendants, school counselors, and even the school district superintendent—inadequately and inconsistently responded to the bullying he suffered over many years due, at least in part, to his perceived sexual orientation. In both cases, the defendants sought summary judgment on the grounds that any Title IX claims should be dismissed because Title IX did not protect individuals from discrimination based on sexual orientation or perceived sexual orientation. In both cases, the defendants' motions for summary judgment were denied.
Since Ray, Montgomery, and OCR's 1997 guidance, courts have not been shy in permitting Title IX actions to proceed in cases involving sex-based bullying of LGBT students. For example, in Pratt v. Indian River Central School District, the plaintiffs alleged that there existed within the school district a longstanding and widely known problem of "sexist and antigay discrimination" and that the school board nonetheless failed to amend its written policies and handbooks to prohibit discrimination based on sexual orientation; address harassment based on sexual orientation in any of its statements or publications; or provide adequate training to its employees with respect to discrimination, bullying, or harassment based on sexual orientation or sex. 2011 WL 1204804 (N.D.N.Y. 2011).
In Schroeder v. Maumee Board of Education [PDF], the plaintiff maintained that, while the defendant board of education failed to enforce policies prohibiting discrimination based on perceived sexual orientation, it did enforce policies protecting students against racial and gender discrimination. In Martin v. Swartz Creek Community Schools, an openly gay student alleged that sex-based harassment occurring persistently during his freshman and sophomore years but largely ignored by teachers and school officials brought him to the "brink of suicide." 419 F. Supp. 2d 967, 973–74 (E.D. Mich. 2006). In each of these cases, the court found that the plaintiffs had presented plausible claims under Title IX and denied the defendants' motions for summary judgment.
Challenges to Bringing a Title IX Claim
Even if a plaintiff bringing a Title IX case is successful in defeating a Rule 12(b)(6) motion, it can be difficult to prevail on the merits. A school "is not required to 'remedy' sexual harassment nor ensure that students conform their conduct to certain rules, but rather, 'the recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable.'" Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000) (citing Davis, 526 U.S. at 648–49). Because the deliberate indifference standard is a high one, officials may avoid liability even if the harm to the harassed student ultimately is not averted, as long as they responded reasonably to the perceived risk. Pemberton v. W. Feliciana Parish Sch. Bd., 2010 WL 431572 at *3 (M.D. La. Feb. 3, 2010).
Moreover, deliberate indifference is only one of the hurdles a plaintiff must clear before he or she will have a cognizable Title IX action for sex-based bullying. To establish a Title IX claim, a plaintiff must also meet the other two requirements set forth by the Supreme Court in Davis—namely, that the sexual harassment was severe, pervasive, and objectively offensive and that the school district had actual knowledge of the sexual harassment. Courts do not hesitate to dismiss Title IX claims on summary judgment where the plaintiff fails to demonstrate one of the prongs of the test. See R.S. v. Bd. of Ed. of the Hastings-on-Hudson Union Free Sch. Dist., 371 Fed. Appx. 231 (2d Cir. 2010); Watkins v. LaMarque Indep. Sch. Dist., 308 Fed. Appx. 781 (5th Cir. 2009).
However, prevailing in a Title IX case is far from impossible. In at least one case, a Title IX plaintiff established school-district liability by showing that a single school administrator with authority to take corrective action responded to harassment with deliberate indifference. Fitzgerald v. Barnstable Sch. Cmte., 555 U.S. 246, 259 (2009) (citing Gebser, 524 U.S. at 290). Recently, in Patterson v. Hudson Area Schools, which many believe may become a landmark Title IX decision, a jury awarded one student and his parents $800,000 in damages for the school district's failure to protect Patterson, while he was a student, from long-term, systemic bullying based on his perceived sexual orientation. See 551 F.3d 438, 448–49 (6th Cir. 2009).
While the $800,000 verdict certainly makes Patterson noteworthy, it is not the first case of its kind, as Patterson was not the first plaintiff to successfully employ a Title IX argument. Furthermore, while the fact that sizeable verdicts are possible may make school districts nationwide sit up and take notice, compensatory awards like the one in Patterson are only one piece of school districts' potential exposure, as liability under Title IX is not limited to compensatory damages. Title IX allows a prevailing plaintiff to recover attorney fees, and a willful or reckless violation may support an award of punitive damages. See, e.g., Henkle v. Gregory, 150 F. Supp. 2d 1067, 1077 (D. Nev. 2001).
Conclusion
The one-two punch of the sizeable award in Patterson and the OCR's Dear Colleague Letter that was issued just seven months later should be a wake-up call for school districts. Schools must provide students with the type of protection Title IX requires in instances of peer-on-peer sexual harassment of LGBT students. Accordingly, they must do more than simply rewrite the rules. They must enforce those rules fairly, consistently, and diligently, or risk Title IX liability for potentially very large sums when they fail to correct the actions of students who pick on, assault, and harass other students on account of their sexual orientation.
In a press release issued shortly after the enforcement agreement in the Wagner case was finalized, a staff attorney for the Lambda Legal Defense and Education Fund, which represented Wagner in the administrative action, said, "School principals who question whether sexual harassment of gay students is illegal will learn a big lesson from this breakthrough. And now, more lesbian and gay students may be able to finish high school." Whether Wagner amounted to a lesson learned for schools and school districts subject to Title IX is, at this time, unclear. Perhaps Patterson's $800,000 verdict will finally bring that lesson home and push schools to address bullying so that more teens can study and learn in a safe environment.
Note: On July 1, 2010, the district court in Patterson entered a judgment in favor of the school district notwithstanding the verdict in favor of the plaintiffs. 724 F. Supp. 2d 682 (E.D. Mich. 2010). Among its reasons, the court determined that the harassment suffered by the plaintiff was not sexual harassment that would be protected under Title IX. Nevertheless, the authors feel that Patterson illustrates the risks that schools may face if they are alleged to have failed to adequately protect students from bullying.
