Sixth circuit decision potentially expands Title IX liability for K-12 school districts

A panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati issued an opinion on May 19, 2022 that arguably expands the scope of liability K-12 school districts may face with respect to Title IX claims of sexual harassment. At a minimum, the case is a reminder that when school districts are put on notice of sexual harassment, they must act.

The case – Doe, on behalf of Doe #2, the Metropolitan Government of Nashville and Davidson County, Tennessee dba Metropolitan Nashville Public Schools, 2022 Westlaw 157 3848 (May 19, 2022) – combined two cases of students who claimed the district was deliberately indifferent and violated their rights under Title IX by permitting sexual harassment to occur against them.

The Background Facts

Jane Doe was a freshman when four male upperclassmen subjected her to “unwelcome sexual activity” in the stairwell at her school. Unbeknownst to Jane Doe, a video of the incident was later made public.

Similarly, in a different school in the same district, freshman Sally Doe was led to the bathroom by a male student, who pressured her into performing a sexual act. The male student recorded a video of the incident without her knowledge, which was later distributed to other students in the district.

The Legal Analysis of “Before” and “After” Title IX Claims

In this case, the plaintiffs alleged two theories of liability under Title IX, known as “before” and “after” Title IX claims – liability for the district’s conduct before the students were harassed, and liability for the district’s conduct after they were harassed. Let’s briefly review the decisions the court relied on to analyze these claims.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court held that a school district could be liable under Title IX for subjecting “students to discrimination where [a school] is deliberately indifferent to known acts of student on student sexual harassment and the harasser is under the school’s disciplinary authority.” Sound familiar? This is the standard adopted by the U.S. Department of Education as part of the most recent Title IX regulations. See 34 CFR §106.44.

The court also referenced a previous Sixth Circuit decision – Kollaritsch v. Michigan State University, 944 F. 3d 613 (6th Circuit 2019) – which limited certain Title IX claims based on student-on-student sexual harassment. In Kollaritsch, four female students at Michigan State University were sexually assaulted by male students and reported the assaults to administrative authorities. They alleged the administration’s subsequent response was inadequate. In its decision, the court held the plaintiffs must show “that the school had actual knowledge of some actionable sexual harassment, and that the school’s deliberate indifference to it resulted in further actionable harassment of the student victim.” Id. at 620. Because, in Kollaritsch, the students were assaulted once, the court concluded that they could not show the school’s conduct or lack thereof caused the students to suffer harassment. The court also observed that further harassment must be inflicted against the same victim. Id.

Thus, in asserting their “before” and “after” claims, Jane and Sally Doe argued that the District had a widespread problem of sexual harassment in its schools, pointing to numerous instances of sexual misconduct and other examples of the dissemination of sexual videos of minor students without their consent.

Sixth Circuit: The Students’ “Before” Claims Could Proceed

Here, the district court had applied Kollaritsch and concluded that the students’ “before” claims were precluded because there was no evidence that the district was on notice of this harassment. However, the Sixth Circuit disagreed, finding evidence of over 950 instances of sexual harassment in the district preceding the incidents involving Jane and Sally Doe. The Sixth Circuit pointed out that when Jane and Sally Doe reported their harassment, the Title IX Coordinator was not involved, and the previous cases of harassment were handled at the building level.

The Sixth Circuit distinguished Kollaritsch and explained that the unwelcome conduct here was a result of the district’s indifference to the problem of pervasive sexual misconduct in its schools. The court adopted the Ninth Circuit test for Title IX “before” claims, which provides: “A student must show: 1) the school maintained a policy of deliberate indifference to reports of sexual misconduct, 2) which created a heightened risk of sexual harassment that was known or obvious, 3) in a context subject to the school’s control and 4) as a result the plaintiff suffered harassment that was ‘so severe, pervasive and objectively offensive that it can be said to have deprived the plaintiff of access to the educational opportunities or benefits provided by the school.’” Citing Karasek v. Regents of the University of California, 956 F. 3d 1093 (9th Circuit 2020).

The court concluded that when a student shows that the school’s deliberate indifference to a pattern of student-on-student sexual misconduct leads to sexual misconduct against the student, then Kollaritsch’s requirements for causation have been satisfied. The court wrote, “put differently, in a successful before claim, a school’s deliberate indifference to known past acts of sexual misconduct must have caused the misconduct that the student currently alleges.”

Sixth Circuit: The Students’ “After” Claims Could Proceed

With respect to the students’ “after” Title IX claims, the court first focused on Sally Doe. The court explained that, when Sally Doe’s mother met with the administration about what her daughter had experienced, the principal responded that the matter was “out of [his] hands” and told the mother to contact the police. The court noted that the principal did not recall informing the head of the school about this meeting, did not refer Sally Doe to the Title IX Coordinator or any other administrator, and did not provide Sally Doe or her mother with information about any steps that the school would take to address the consequences of the incident. The court wrote that the District took no additional action other than assisting Sally Doe’s parents with arranging to homeschool. Thus, the court held that a reasonable jury could conclude that, rather than taking steps to remedy the sexual harassment, the District opted to avoid the problem, resulting in Sally Doe being forced to choose between homeschooling or enduring further misconduct. Therefore, the case was remanded to the district court.

The court also remanded Jane Doe’s “after” claim to the district court, holding that Kollaritsch did not apply. The court explained that the “same victim” requirement from Kollaritsch – which involved a university – did not apply in the K-12 context because K-12 schools have more authority and control over the students than at the university level.

Takeaways for K-12 Districts

The most important takeaway for K-12 districts from the court’s decision is its explanation that K-12 districts may be held to a different standard than universities for liability under Title IX – largely due to the fact that they have more control over the discipline and day-to-day activities of their students compared to institutions of higher education. The court also emphasized how the District’s processes failed the students in question in this case, viewing as problematic the District administration’s choice to handle the issues at the building level rather than reporting them to the district’s Title IX Coordinator.

This case serves as a cautionary reminder to train administrators in K-12 buildings at all levels to ensure that they understand the importance of reporting claims of sexual harassment to the Title IX Coordinator so that the District can act.