The Sixth Circuit recently weighed in on a circuit split involving a school’s liability for its response to sexual harassment. While this does not directly affect Washington Title IX cases, it shows the contrasting interpretations of Title IX throughout the country. Four female students filed suit against a University, alleging that its response to their reports of sexual assault was inadequate and caused physical and emotional injuries, resulting in a denial of educational opportunities. The defendants moved to dismiss, and ultimately all but four claims were either withdrawn or dismissed. The remaining claims were Title IX claims and an equal protection claim under § 1983.
The Sixth Circuit granted the defendants’ motion for an interlocutory appeal to address the question of whether there must be additional acts of discrimination to support deliberate indifference to peer-on-peer harassment under Title IX. In evaluating a Title IX private cause of action against a school, courts use the test set forth in Davis v. Monroe County Board of Education. The Sixth Circuit noted that Davis requires the school’s actual knowledge of actionable sexual harassment and a deliberate indifference to that harassment that results in additional actionable harassment. Under Davis, harassment must be severe, persuasive, and objectively offensive to be actionable.
The plaintiff must then prove the elements of deliberate indifference. The plaintiff must show that the school had actual knowledge of actionable sexual harassment. The plaintiff must show that there was an act, meaning an unreasonable response in light of the circumstances. There must be an injury, meaning that the plaintiff was deprived of access to educational opportunities or school benefits. The plaintiff must also show that the defendant’s act caused the injury. The Sixth Circuit noted that the Davis case requires the plaintiff to show that the defendant’s deliberate indifference subjected students to further actionable harassment. The plaintiff must show both that the response was unreasonable and that it led to further harassment.