Sexual Harassment and Assault at School: Divergence Among Federal Courts Regarding Liability
Legal Sidebari
Sexual Harassment and Assault at School:
Divergence Among Federal Courts
Regarding Liability
April 7, 2022
Under Title IX of the Education Amendments of 1972 (Title IX), schools that receive federal financial
assistance are liable for a “deliberately indifferent” response to the sexual harassment and assault of
students by teachers, as well as by fellow students in certain circumstances. While this standard is a
stringent one to meet, federal courts have not applied it uniformly. In particular, federal courts of appeals
have taken diverging positions over whether a school’s insufficient response to a single incident of
student-on-student harassment itself can establish liability under Title IX, or whether further incidents of
harassment are required in order for liability to attach. This disagreement turns, at least in part, on
language in Supreme Court decisions establishing the general parameters of school liability for sexual
harassment under Title IX, as well as the interpretation of legislation enacted pursuant to Congress’s
spending power under the Constitution.
Background: Supreme Court Cases on Sexual Harassment and Title IX
Title IX prohibits sex discrimination in education programs or activities that receive federal financial
assistance. Most public school districts and universities receive federal funds (although the statute does
have various exceptions). Importantly, the statute’s text does not explicitly create a cause of action,
specify judicial remedies available to plaintiffs, or even mention sexual harassment. The Supreme Court
has nevertheless interpreted Title IX to extend to sexual harassment, and has crafted the relevant standards
and available judicial relief in such cases. In doing so, the Supreme Court has examined the structure of
the statute’s enforcement scheme and stressed the principles attendant to spending power legislation. Two
cases set the general framework for establishing liability under Title IX in cases of sexual harassment.
First, the Supreme Court has interpreted Title IX’s bar against sex discrimination to authorize holding
school districts liable in damages in certain cases of sexual harassment of a student by a teacher. In
Gebser v. Lago Vista Independent School District, the Court ruled that school districts can be liable for a
damages claim under Title IX for a deliberately indifferent response to known acts of harassment in such
circumstances. Under Gebser, in addition to showing a school’s deliberate indifference, plaintiffs must
show that “an appropriate person,” defined as “an official who at a minimum has authority to address the
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alleged discrimination and to institute corrective measures on the recipient’s behalf,” had “actual
knowledge of discrimination.” In such circumstances, liability attaches based on “an official decision …
not to remedy the violation.”
The Court soon extended this reasoning to sexual harassment of a student by another student, ruling in
Davis Next Friend v. LaShonda D. v. Monroe County Board of Education that federally funded school
districts with actual knowledge of such harassment can be held liable for a deliberately indifferent
response if certain conditions are met. The discrimination 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.” The Court expressed that this determination would often be fact-intensive, and
opined that it was “unlikely that Congress” would have intended that a single instance of harassment
would meet that standard.
Most relevant for the purposes of the current disagreement among federal courts, the Supreme Court also
explained that when the recipient does not engage in harassment directly, it may not be held liable unless
the school’s own deliberate indifference “subjects” students to harassment. The school’s response must,
“at a minimum, ‘cause students to undergo’ harassment or ‘make them liable or vulnerable’ to it.” The
harassment thus must occur in situations in which the school has “substantial control” over the harasser
and the context in which the misconduct occurs. One important consideration in making that
determination, the Court noted, is whether the school has disciplinary authority over the harasser.
Can a School’s Insufficient Response to a Single Incident, Without
Further Harassment, Be Sufficient to Trigger Liability?
A question that is dividing federal appellate courts is how to apply the standard enunciated in Davis—in
particular, how to interpret the Court’s language regarding what it means for a school to “subject”
students to harassment. Can a school’s insufficient response to a single incident of student-on-student
sexual harassment, when no further incidents of harassment occur, meet this threshold? Although there
are a number of different appellate decisions that touch on this question, recent decisions from the U.S.
Courts of Appeals for the Fourth and Sixth Circuits helpfully illustrate quite distinct approaches.
A School’s Deliberately Indifferent Response to a Single, Severe, Incident
Can Be Sufficient
In a split decision from 2021, the Fourth Circuit ruled in Doe v. Fairfax County School Board that a
school may be liable under Title IX for a “clearly unreasonable” response to a “single incident of severe
sexual harassment” if it renders the student “more vulnerable” to more harassment or further contributes
to the deprivation of a student’s access to educational opportunities. In that case, a student was allegedly
sexually assaulted on a school trip. There were no further incidents, but the student argued that the
school’s response to the misconduct was deliberately indifferent in violation of Title IX.
The Fourth Circuit observed that in Davis, the Supreme Court construed Title IX as prohibiting the
deprivation of “access to educational benefits and opportunities on the basis of gender” and described
school liability as available when a deliberately indifferent response renders a student “liable or
vulnerable” to harassment.
The panel reasoned that a single incident of harassment, “if sufficiently severe,” can cause lasting harms.
When those harms deprive victims of educational benefits and opportunities, and that deprivation is not
remedied, or made worse by a school’s deliberately indifferent response, Title IX is violated because the
victim is “denied access to educational benefits and opportunities on the basis of gender.” The panel thus
rejected the argument that a school cannot be found to act with deliberate indifference when officials only
receive notice of the misconduct after the fact and the school’s response does not cause more harassment.
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The Fourth Circuit’s decision drew a dissent. Judge Niemeyer wrote that under Davis, a school is not
liable in cases of student-on-student harassment unless the school’s own conduct itself caused the
discrimination. According to the dissent, it is only after a school has notice of harassment that it can
prevent future harassment. Under this reasoning, there must be more harassment after the school has
notice in order to establish liability. Further, he wrote, the Court in Davis limited liability to situations in
which there was a “systemic effect on educational programs or activities,” and used the example of a
single act of harassment as a situation that did not meet that standard. Under the facts in Doe, there was
only a single incident of harassment which the school had no prior notice of and no opportunity to
prevent. Because there was no further harassment that the school failed to avert, the school did not
actually cause any harassment and therefore could not be liable under Title IX. (A petition for a writ of
certiorari is pending before the Supreme Court.)
The en banc Fourth Circuit denied a petition to rehear the case, although that denial itself drew various
opinions. Judge Wynn, concurring in the denial, wrote to emphasize that the panel’s decision does not
impose retroactive liability for the assault itself when the school had no warning. Rather, schools can be
held liable only for their “own behavior in response to a peer assault.” The “key question,” Judge Wynn
wrote, “is whether the school discriminated against the harassed student in how it handled the student’s
report of peer harassment or assault.” Judge Wynn noted that the Davis standard of Title IX liability when
deliberate indifference renders a student “liable or vulnerable” to harassment was an interpretation rooted
in the statutory phrase “subjected to discrimination.” Thus, schools under Title IX can be liable when
their actions render a “student vulnerable to sexual harassment by their peers, such as by failing to
respond appropriately after learning of an initial incident of sexual assault.”
Judge Wilkinson, dissenting from the denial, criticized the majority for “subject[ing] school districts to
liability for incidents they did not cause and could not prevent.” He wrote that Supreme Court case law
establishes a “general canon of statutory interpretation: ambiguous conditions in federal spending
programs impacting areas integral to state sovereignty must be interpreted in favor of the state.” He
reasoned that this canon applied here, as elementary and secondary education is a vital aspect of state
sovereignty, and Title IX did not unambiguously hold states liable for a “single, isolated incident of pre-
notice harassment.” In fact, Judge Wilkinson characterized the varying approaches taken by courts as
evidence that Title IX did not unambiguously impose this condition. Accordingly, Title IX did not impose
liability on schools for a “single isolated incident of pre-notice sexual harassment,” because that condition
“does not begin to flow unambiguously from the text of the statute.”
Schools Are Not Liable Unless Further Harassment Post-Notice Occurs
In contrast to the majority opinion of the Fourth Circuit, the Sixth Circuit, in the 2019 case Kollaritsch v.
Michigan State University Board of Trustees, interpreted Davis to mean that schools are only liable for
damages under Title IX when they have actual knowledge of actionable harassment and “the school’s
deliberate indifference to it resulted in further actionable harassment of the student-victim.” In that case, a
number of college students who were sexually assaulted sued the university alleging that the school’s
response to their harassment violated Title IX. The panel framed the deliberate indifference standard
under Davis as an “intentional tort by the school.” That standard, for the Sixth Circuit, has four elements:
knowledge, an act, injury, and causation. Under the causation element, a plaintiff must show that a
school’s response was “clearly unreasonable” and “must bring about or fail to protect against … further
harassment.”
The panel rejected the argument that the Court’s language in Davis, which described the deliberate
indifference standard as a response that would “cause students to undergo harassment or to make them
liable or vulnerable to it,” should be read to mean that vulnerability alone is enough to satisfy this
requirement. Instead, the panel wrote, the clear meaning of that standard is that if students do experience
further post-notice harassment, they can prove a Title IX violation either on the basis that the school took
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action that instigated further harassment or took insufficient action (or no action) that left the victim
unprotected from further harassment. Because the plaintiffs here did not plead any actionable further
sexual harassment, they could not show the causation necessary to state a claim for deliberate indifference
under Title IX.
Judge Thapar wrote a concurring opinion in light of the disagreement among federal courts on the issue.
He stressed that because Title IX is enacted pursuant to Congress’s spending power, conditions on receipt
of federal funds must be unambiguous. In his view, even if there were ambiguity on the issue at hand, that
ambiguity itself “would require us to adopt the less expansive reading of Title IX.”
Considerations for Congress
The divergence among federal appellate courts regarding the circumstances in which schools are liable for
student-on-student harassment seems to turn in part on language in the Supreme Court’s opinion in Davis
and its interpretation of spending clause legislation. As mentioned above, the text of Title IX does not
mention sexual harassment, so the applicable standards are the result of judicial creation. However,
Congress enjoys discretion to amend Title IX in order to clarify any number of issues, including what
conduct amounts to sexual harassment, the proper response to allegations of sexual harassment that is
expected of recipients, the circumstances in which damages liability attaches, and/or the appropriate
judicial remedies available. Alternatively, legislation could direct federal agencies to promulgate
regulations consistent with Congress’s policy goals.
More broadly, as Title IX nears its 50th anniversary, the statute is regarded as responsible for increasing
opportunities for women in a number of ways, including in academics and participation in athletics.
Nonetheless, the precise requirements that flow from the text of Title IX continue to spark debate and
controversy. Perhaps in part because that statute does not explicitly address a variety of important issues,
schools’ obligations are subject to shifting regulations at the agency level and disputed interpretations
among the federal courts.
Author Information
Jared P. Cole
Legislative Attorney
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