Following is an excerpt from Ms. Wu's article, "Trends in Sexual
Harassment Litigation Under Title IX," in the latest WEEA Digest,
"Title IX and Sexual Harassment (available on WEEA's web site
<www.edc.org/WomensEquity>)." It summarizes the current state of the
law as we await the Supreme Court's decision in Davis v. Monroe County
Board of Education, the case argued before the Court last month. The
question in Davis is whether schools can be held liable for
student-to-student sexual harassment.]
The Supreme Court decided its first Title IX school sexual harassment
case in 1992. That case, Franklin v. Gwinnett County Public Schools,
involved sexual harassment of a high school student by a teacher. The
Court recognized that private individuals bringing Title IX suits
could sue schools for monetary damages. Since Franklin, Title IX
sexual harassment litigation has burgeoned. In a 1993 case jointly
litigated by NOW Legal Defense and Education Fund and Equal Rights
Advocates, Doe v. Petaluma City School District, a federal court
issued a landmark ruling recognizing that Title IX prohibits
student-to-student sexual harassment. In March 1997 the U.S.
Department of Education's Office for Civil Rights (OCR) issued a
policy guidance describing schools' potential liability for sexual
harassment of students. The OCR guidance confirmed schools'
responsibility for preventing and remedying sexual harassment.
While Franklin clarified that harassed students could sue schools for
money damages under Title IX, it did not decide when and how schools
will be held liable. In June 1998, the Supreme Court addressed that
question in Gebser v. Lago Vista Independent School District. Like
Franklin, Gebser involved sexual harassment of a student by a teacher.
In a deeply split 5 to 4 ruling, the Court held that school districts
are liable for money damages under Title IX only when a school
official with authority to take corrective measures has actual
knowledge of the harassment, and has acted with deliberate
indifference....Gebser marks a sea change in Title IX liability
standards, at least for cases in which plaintiffs seek money damages.
Before Gebser, many courts held schools liable for incidents of sexual
harassment by a teacher without asking whether a high level official
knew about the harassment or failed to act. Importantly, Gebser does
not reach claims for injunctive relief, where, for instance, a
plaintiff is seeking better sexual harassment policies or training, or
asking for any other kind of non-monetary relief. Gebser also does not
affect other types of legal claims, such as claims brought against
individual harassers under 42 U.S.C. 1983, or claims against school
districts or individuals under state tort law or education laws.
Gebser's effect will be determined as lower courts around the country
apply the new guidelines in the Court's opinion. Clearly, the new
liability standard puts the onus on students and parents to complain,
thus ensuring that school districts have "actual notice" of
harassment. Actual notice can be established through written or oral
complaints to school officials witnessing the harassment, or observing
other evidence of harassment, such as fliers about the incident.
Students and parents must also be careful to notify school officials
who have authority to take corrective action. Under Gebser, actual
notice to school officials or employees who do not have such authority
will not bind the school district.
Determining which school official should be notified of incidents of
sexual harassment will differ from case to case. At a minimum,
notifying Title IX coordinators, school board members, or school
district superintendents should satisfy the standard, as should
notifying school officials with direct authority over the harasser,
such as principals or assistant principals. In cases of peer sexual
harassment, a broader range of school officials should be deemed to
have authority to take corrective action than in cases of
teacher-student harassment. Arguably, any teacher or adult in the
school community has the authority to discipline or reprimand a
student who is sexually harassing another student. To be extremely
cautious, however, parents, students, and advocates may wish to notify
the Title IX coordinator, the principal, school board members, or the
superintendent in all sexual harassment cases.
Under Gebser, once a school district knows about sexual harassment, it
will be held liable if a school official with authority to take
corrective action acted with deliberate indifference. While courts
have not yet interpreted this standard, factors that may constitute
deliberate indifference include: failure to appoint a Title IX
coordinator, discouraging students or parents from complaining,
actively disregarding known sexual harassment, or taking steps that
are known to be ineffectual.
...The bottom line is that students, parents, and schools share the
same goal: preventing sexual harassment from happening. Schools can
meet that goal by instituting effective anti-harassment
policies and grievance procedures, conducting
anti-harassment training, and sending a strong message that
sexual harassment will not be tolerated.
Yolanda Wu
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