Note - I don't usually express my personal opinion on the legal developments reported here, at least not explicitly. But I believe this one merits an exception.
Recently, a panel of Sixth Circuit judges, in a 2-1 decision, expanded educators’ exposure to Title IX liability for student-on-student sexual harassment cases. Doe v. Metropolitan Government of Nashville and Davidson County, Tennessee, Case Nos. 20-6225/6228 (May 19, 2022). Previously, the Sixth Circuit declined to permit such cases to move forward unless the plaintiff pleaded and proved: sexual harassment that was so severe, pervasive, and objectively offensive that it deprived the plaintiff of access to educational opportunities or benefits; the school had actual knowledge of the sexual harassment; and, nevertheless, the school was deliberately indifferent. The second and third elements were key. Did the school have “actual knowledge” of the sexual harassment? And, given that knowledge, did the school fail to take reasonable steps to intervene? In Doe, however, the Sixth Circuit imported the following four-part test from the Ninth Circuit: did the school maintain a policy of deliberate indifference to reports of sexual misconduct; which created a heightened risk of sexual harassment that was known or obvious; in a context subject to the school’s control; and, 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.
The significance of the difference between these standards may not be clear to the uninitiated. An example may helpful. Imagine a high school whose students who are interested in sex, some of whom are sexually active, a tiny minority of whom use their iPhones to video sexual behavior and post on social media, sometimes without their partners’ knowledge. In other words, image any high school. The high school administration is not unaware this is happening, but only addresses it on a case-by-case basis, when it is brought to administration’s attention and there is a relationship between the harassment and school (for example, when the sexual behavior occurred at school). Under the old test, the school district was not liable under Title IX unless it actually knew a particular student was being harassed and virtually ignored it. Not likely. But, under the new test, the school’s mere general awareness of student sexual misconduct, whether it happens at school or not, may be a sufficient “actual knowledge” predicate to establish liability.
Is this a problem? Some may think not. Perhaps, as a condition of receiving federal funding, schools should be required to do whatever it takes to “get in front” of students sexual and social media behavior and eliminate all student-on-student sexual misconduct. Their parents haven’t done it. The police don’t have the resources to do it. So, maybe we should lay the problem at the schoolhouse door.
And this is the problem. Illegal or inappropriate sexual behavior, however one might define inappropriate, permeates our society. But Title IX, enacted in 1972, did not anticipate iPhones, the internet, or the sexual norms of 2022. Of course, when Title IX was enacted, there were no iPhones to record sexual interactions and no open internet to facilitate distribution of the images. In my opinion, it is unrealistic and unfair to expect schools to counteract such social developments, if development is the right word. Today, we would do quite well to focus on improving our students’ general level of academic achievement. While educators continue their work on that front, we may hope the full Sixth Circuit or the Supreme Court addresses the unwarranted mission-creep inherent in the Doe decision.