With respect to faculty-student sexual harassment in the context of higher education, institutional liability can be demonstrated by showing that an “appropriate person” had actual notice of the conduct and that the individual responded, or perhaps more appropriately, failed to respond, with deliberate indifference. With respect to the first element, an appropriate person means an official “who at a minimum has authority to address the alleged discrimination and to institute corrective measures” on the school’s behalf. In other words, “appropriate persons” are those who have the authority to address the misconduct by terminating or otherwise disciplining the offending party. As to the second element, deliberate indifference, this means that an educational official knows of the conduct and, as a matter of official policy, does nothing. Consequently, the courts have interpreted institutions as effectively causing continuing violations. In other words, liability results when institutional officials know of the harassment and affirmatively choose to do nothing.
When the person engaging in sexual harassment is a student, rather than a faculty member in higher education, additional requirements come into play. In Davis, the Supreme Court stressed that the language of Title IX, coupled with the requirement that recipients of federal financial assistance have notice of the proscriptions under the statute, requires that institutions subjected to liability must have substantial control over the harasser and the environment in which the harassment occurs before they can be liable: “Only then can the recipient be said to ‘expose’ its students to harassment or cause them to undergo it ‘under’ the recipient’s programs” (Davis, p. 646). In reaching this outcome, the Court relied in part on the requirement in Title IX that harassment occur under the operations of a funding recipient. However, the Court, in an apparent attempt to qualify the requirement as it might apply in higher education, emphasized that college or university officials might not
be expected to exercise the same degree of control over its students that a grade school would enjoy [citation omitted], and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims. (p. 649)
The Supreme Court imposed two additional conditions on its test for peer-to-peer sexual harassment that were not addressed in Gebser. The first provides a defense if institutional recipients of federal financial assistance can show that official responses to harassment were not “clearly unreasonable.” The Court distinguished this from a “mere ‘reasonableness’ standard,” stating that in an appropriate case, “There is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as ‘not clearly unreasonable’ as a matter of law” (p. 649). The second condition, which is based on the attachment of Title IX to “actions that occur under any program or activity,” requires that damages be “available only where behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect” (p. 652).
The Davis Court further sought to avoid an overly expansive application of its holding to common behavior, particularly among children, involving such things as “simple acts of teasing and name calling” (p. 676). The Court also stressed that it did not contemplate or hold that a mere decline in grades is sufficient to survive a motion to dismiss. The Court attempted to provide some general guidance as to when gender-oriented conduct rises to the level of actionable sexual harassment by declaring that it “depends on a constellation of surrounding circumstances, expectations, and relationships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved” (p. 651).
In both Gebser and Davis, the Supreme Court implicitly ruled that Title IX liability turned on a finding of intentional discrimination by the educational institution. In other words, the Court was of the opinion that before Title IX liability attaches, a plaintiff must demonstrate that institutional officials made a conscious choice to discriminate by failing to act on actual knowledge. The Court thus made it clear that it is not enough to show that an employee or agent of a college or university behaved improperly. Rather, the Court explained that a plaintiff must show that an official or officials at an educational institution endorsed such conduct or failed to stop it from continuing.
In response to the litigation at the Supreme Court, and aware of the need to eliminate or remedy incidences of sexual harassment on college and university campuses, federal regulations promulgated pursuant to Title IX require institutions to develop clearly written policies prohibiting all forms of sexual harassment. In developing and reviewing policies, officials should include representatives of faculty, staff, and students to ensure that those charged with harassment are entitled to protection under due process procedures that have been set forth for other forms of alleged policy violations. At the same time, policies should have effective and well-publicized procedures by which students, faculty, and staff can report and resolve sexual harassment complaints in a timely manner that respects the substantive and procedural due process rights of both the accused and the accuser.
William E. Thro
See also Title IX and Retaliation
Russo, C. J., & Thro, W. E. (2005). Student equal protection and due process. In J. Beckham & D. Dagley (Eds.), Contemporary issues in higher education law (pp. 257–275). Dayton, OH: Education Law Association.
Snow B. A., & Thro, W. E. (1996). Still on the sidelines: Developing the non-discrimination paradigm under Title IX. Duke Journal of Gender Law & Policy, 3, 1–49.
Snow, B. A., Thro, W. E., & Clemente, S. (2001). The problem of determining Title IX liability. Education Law Reporter, 154(1), 1–44.
Cannon v. University of Chicago, 441 U.S. 677 (1979).
Code of Federal Regulations, 34 C.F.R. § 106.8(b).
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), on remand, 969 F.2d 1022 (11th Cir. 1992).
Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).
Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. (1972).