Davis v. Monroe County Board of Education: Title IX Prohibits Deliberate Indifference to Sexual Harassment in Education

In Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999), the Supreme Court held that an educational institution that does not engage in harassment itself could still be liable under Title IX for student-on-student sexual harassment. The institution can be liable if (1) it is deliberately indifferent to student harassment of which it has actual knowledge and (2) the harassment is 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.

Background on Title IX: Prohibition on Sex Discrimination in Education

Title IX of the Education Amendments of 1972 prohibits sex discrimination by recipients of federal education funding. The statute provides that “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program … receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a)

Facts

Davis’s daughter was a fifth grader in Monroe County, Georgia. The daughter experienced a prolonged pattern of sexual harassment by one of her classmates. The classmate attempted to touch the daughter’s private parts, made sexually-explicit comments to her, and made sexually-suggestive gestures towards her during class. This conduct went on for several months, during which time the daughter and her mother reported the incidents to teachers, to no avail. Eventually, the string of incidents came to stop only when the classmate was charged with, and pleaded guilty to, sexual battery for his misconduct. 526 U.S. at 632-35.

David filed suit against the school board and various officials, seeking damages for the sexual harassment of her daughter. Among other things, Davis alleged the defendants’ deliberate indifference to the classmate’s persistent sexual advances toward her daughter created an intimidating, hostile, offensive, and abusive school environment. Davis alleged this environment violated Title IX, which, as noted above, prohibits a student from being “excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681(a)

The district court dismissed the case, finding that “student-on-student,” or peer, harassment provides no ground for a Title IX private cause of action for damages. The Eleventh Circuit affirmed. 526 U.S. at 637-38.

The Court’s Decision

The Supreme Court reversed. It held that a private Title IX damages action is possible against an educational institution in cases of student-on-student harassment. A funding recipient, like a school board, can be liable where it is deliberately indifferent to known sexual harassment, and that harassment is 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. 

A Clearly Unreasonable Response Shows Deliberate Indifference

First, the Court observed that under Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), an implied private right of action for damages exists under Title IX, so long as the funding recipient had adequate notice that it could be liable for the conduct at issue, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981). Under those precedents, a recipient is liable only for its own misconduct. In Davis, the plaintiff attempted to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. 526 U.S. at 640-41.

Second, the Court found that the standard set out in Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998) — that a school district may be liable for damages under Title IX where it is “deliberately indifferent” to known acts of teacher-student sexual harassment — also applies in cases of student-on-student harassment. 526 U.S. at 643-44. In Gebser, the Court rejected the use of agency principles to impute liability to the district for the acts of its teachers. Id. (citing Gebser at 283). Additionally, the Court observed that Title IX’s regulatory scheme provides funding recipients with notice that they may be liable for their failure to respond to nonagents’ (like students’) discriminatory acts. The Court further observed that the common law has also put schools on notice that they may be held responsible under state law for failing to protect students from third parties’ tortious acts — like unwanted physical touching. 526 U.S. at 644.

Third, the Court acknowledged that the harasser’s identity is not irrelevant. This is because it found “deliberate indifference” makes sense as a direct liability theory only where the recipient has the authority to take remedial action. And Title IX’s language narrowly circumscribes the circumstances giving rise to damages liability under the statute. If a recipient does not engage in harassment directly, under Title IX’s language the recipient may not be liable for damages unless its deliberate indifference “subject[s]” its students to harassment. 20 U.S.C. § 1681(a). The Court held that “subject[s]” means, at a minimum, causes students to undergo harassment or makes them liable or vulnerable to it. Moreover, the Court pointed out, because the harassment must occur “under” “the operations of” a recipient, citing 20 U.S.C. §§ 1681(a), 1687, the harassment must take place in a context subject to the school district’s control. 526 U.S. at 644-45.

The Court then reasoned that these factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Where the misconduct occurs during school hours on school grounds, misconduct takes place “under” an “operation” of the recipient. In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. 526 U.S. at 645. 

Applying these factors in Davis, the Court observed that the Board exercised significant control over the student harasser, because it had disciplinary authority over its students. At the time of the events that gave rise to the Davis suit, a publication for school attorneys and administrators indicated that student-on-student harassment could trigger Title IX liability, and subsequent Department of Education policy guidelines provide that such harassment falls within Title IX’s scope. 526 U.S. at 647-48.

Significantly, and returning to the important “deliberate indifference” standard, the Court concluded that funding recipients are deemed “deliberately indifferent” to acts of student-on-student harassment where the recipient’s response to the harassment or lack thereof is “clearly unreasonable” in light of the known circumstances. 526 U.S. at 648-49. 

Notice and Discrimination

The Court then discussed the relationship between the requirement that recipients receive adequate notice of Title IX’s proscriptions and the proper definition of “discrimination” in a private damages action. 

First, the Court observed that Title IX proscribes sexual harassment with sufficient clarity to satisfy Pennhurst’s notice requirement and serve as a basis for a damages action. 526 U.S. at 650 (citing Gebser at 281). Noting that it previously held in Gebser that teacher-student sexual harassment is “discrimination” in the school context under Title IX, the Court then concluded that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of “discrimination” actionable under the statute. 526 U.S. at 650.

Second, the Court noted that Title IX’s other prohibitions help to give content to “discrimination” in this context. After all, the statute not only protects students from discrimination but also shields them from being “excluded from participation in” or “denied the benefits of” a recipient’s “education program or activity” on the basis of gender. Id. (citing 20 U.S.C. § 1681(a)). Therefore, while it is not necessary to show an overt, physical deprivation of access to school resources to make out a damages claim for sexual harassment under Title IX, a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, so as to effectively deny the plaintiff equal access to an institution’s resources and opportunities. 526 U.S. at 650 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) for the sexual harassment standard in the employment context). 

Third, the Court observed that whether gender-oriented conduct is “harassment” depends on a constellation of surrounding circumstances, expectations, and relationships. In the school context, these include but are not limited to, the harasser’s and victim’s ages and the number of persons involved. Moreover, that the discrimination must occur “under any education program or activity” suggests that the behavior must be serious enough to have the systemic effect of denying the victim equal access to an education program or activity. 526 U.S. at 652-53. The Court cautioned that a single instance of severe one-on-one peer harassment could, in theory, be said to have such a systemic effect, but in light of Congressional intent, in cases of a single instance proof of a systemic effect could be difficult. Finally, the Court noted that compared to teacher-student harassment, peer harassment is less likely to satisfy the requirements that the misconduct breach Title IX’s guarantee of equal access to educational benefits and have a systemic effect on a program or activity. 526 U.S. at 653. 

Applying this standard to the facts in Davis, the Court held that the case could move forward as it appeared, from the allegations, that Davis could show both actual knowledge and deliberate indifference on the part of the Board, as the Board made no effort either to investigate or to put an end to the harassment at issue. 526 U.S. at 653-54.

Analysis

In sum, the Davis Court held that an educational institution that does not directly engage in harassment could still be liable under Title IX for student-on-student sexual harassment. The institution can be liable if (1) it is deliberately indifferent to student harassment of which it has actual knowledge and (2) the harassment is 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.

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