Sixth Circuit Holds There Must Be Further Harassment to Support Title IX Deliberate Indifference Claim

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  The defendants moved to dismiss, and ultimately all but four claims were either withdrawn or dismissed.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.

The plaintiffs pointed to specific language from the Davis case:  “the deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.” The plaintiffs argued that vulnerability was sufficient to constitute causation. The Sixth Circuit said that this argument was based on an incorrect reading of Davis.  According to the court, the statement reflected two alternative ways in which the response could lead to additional harassment.  First, the response could instigate further harassment.  Alternatively, it could be insufficient and make the victim vulnerable to additional harassment.  The court quoted a law journal article by Zachary Cormier that explained the Davis opinion as identifying wrongful conduct through both commission and omission.  According to Cormier, the school could be liable once post-notice harassment occurred if its action in responding put the student in a position to experience harassment or if it left the student vulnerable to further harassment.  Either way, post-notice harassment actually had to occur.

The plaintiffs also argued that a single severe sexual assault was sufficient for a viable action.  The Sixth Circuit found, however, that a single assault did not meet the “pervasive” element required for a private right of action against a school.

The Sixth Circuit held that each plaintiff had to prove actionable harassment, the school’s actual knowledge of the harassment, a further incident of actionable harassment. In addition, they needed to show that the further harassment would not have occurred but for the unreasonableness of the response, and that the injury was caused by the further harassment. The court held that the plaintiffs’ allegations did not plead actionable further sexual harassment, and they therefore could not show causation.

The Sixth Circuit also found that the Vice President for Student Affairs was entitled to qualified immunity in the § 1983 action.

The Sixth Circuit reversed the district court’s order and remanded for the dismissal of the claims.

This case shows a split in circuits, with the Tenth Circuit having recognized a private cause of action against a school without a showing of further actionable harassment.  This circuit split leaves schools uncertain of their liability.  This uncertainty may affect how they handle investigations and resulting disciplinary actions, with some schools potentially acting promptly and aggressively to avoid liability, especially in the Tenth Circuit.

If you are facing a Title IX investigation, our experienced Washington Title IX defense attorneys will fight for your rights and to protect your education.  Call Blair & Kim, PLLC, at (206) 622-6562 to schedule an appointment to discuss your case.