This past spring a judge in this federal district issued an order denying a private school defendant’s motion for summary judgment on a Title IX claim based on alleged student-on-student harassment. The ruling is instructive for all schools, public and private, regarding what facts trigger a school’s duty to take action under Title IX and whether the school’s response is adequate.
The alleged harasser was involved in a December 2013 incident with his roommate involving inappropriate sexual behavior. The school became aware of this incident, conducted an investigation, and adopted a line-of-sight and video recording review policy as a result. In 2014, the alleged victim enrolled as a student. A few months later he reported to school staff that the harasser, who was six years older than he was, had shown him a pornographic video. In June 2015 the victim reported that the harasser had touched him inappropriately on several occasions. Following the second report, the school placed the harasser in a separate residence and he had no further interactions with the victim. However, in a September 2015 risk assessment with a psychiatrist, the harasser admitted that he had engaged in more extensive sexual contact with the victim than previously reported. The victim’s parent became aware of this, withdrew her son, and filed the lawsuit.
To succeed on a Title IX claim based on student-on-student sexual harassment, the victim must prove: (1) that he was subject to severe, pervasive, and objectively offensive sexual harassment by the harasser; (2) that the harassment caused him to be deprived of educational opportunities or benefits; (3) that the school receives federal funds; (4) that the school had actual knowledge of the harassment; (5) that the harassment occurred in one of the school’s programs or activities; and (6) that the school was deliberately indifferent to the harassment such that its response (or lack thereof) is clearly unreasonable in light of the known circumstances. The defendant school requested summary judgment on the grounds that it did not have actual knowledge of the harassment until June 2015 and that it was not deliberately indifferent to the harassment.
The court ruled that it was not necessary that the school had actual knowledge of harassment that was “severe, pervasive, and objectively offensive” but that only knowledge of sexual harassment was required. The court further ruled that the school’s knowledge of the harasser’s previous conduct in December 2013 was sufficient because “[c]omplaints by other students about the same harasser can provide sufficient notice to require a school to respond,” and because “the Title IX ‘notice standard does not require that the [alleged harasser] actually commit previous acts of harassment against the plaintiff-student and that the plaintiff-student complain before the institution may be held liable for the [alleged harasser’s] subsequent repeated misconduct under Title IX.’” The court held that a jury could find actual knowledge by the school based on the December 2013 and December 2014 incidents.
Moving to the school’s argument that its response to the victim’s report was not clearly unreasonable, the court disagreed because “a jury could reasonably find that, despite learning in December 2014 that one of its students with a history of inappropriate sexual behavior toward his peers had shown pornography to [the victim], [the school] did not separate [the students] until June 2015.” The court also stated that if the school had properly implemented its line-of-sight policy and video recording review policy, the harasser would not have had the opportunity to commit the additional acts of abuse against the victim that he later admitted to.
This decision is another reminder of the importance of a thorough, prompt, and adequate response by school officials to reports of student-on-student harassment under Title IX. A failure to take proper steps when this duty is triggered can have not only serious consequences for students but also for the school district financially and from the perspective of OCR enforcement.
If you have any questions regarding the content of this update, or any other questions regarding school law generally, please contact us.
This update is provided for informational purposes only and should not be considered legal advice.