Secretary Cardona on N.I.L to Commemorate 50 Years of Title IX

June 23, 2022

To commemorate the 50th Anniversary of Title IX, Education Secretary Miguel Cardona discussed Title IX’s history and recent developments with ESPN as a part of its Fifty/50 Initiative.

When asked about NIL (name, image and likeness) in college athletics, Dr. Cardona expressed his concern that NIL may favor male athletes. “Some of the concerns I have is that it’s going to be male athletes getting paid and [the] just-as-committed, just-as-hard-working women athletes, not,” he stated. Mr. Cardona called for universities to be proactive and “create structures that are monitoring this” and not to “wait for the problem.”

As NIL becomes more ingrained in college athletics, some predict that schools will be required to report student NIL agreements to the Department of Education. While Dr. Cardona did not confirm this, he believes that “[the Department has] an opportunity” to create and promote “structures at the federal level that could be visited at the state [and] college level [to] ensure equity.”

To learn more about ESPN’s Fifty/50 Initiative and other events commemorating Title IX, check out our compilation.

Sixth Circuit Court Decision Has Potential to Expand Title IX Liability for K-12 Schools

June 16, 2022

Last month, the Sixth Circuit Court of Appeals issued an opinion that could expand the “scope of liability” K-12 schools may face under Title IX. At the center of the opinion is a stark reminder that school districts must act when they have actual knowledge of sexual harassment. In the combined matter of John Doe (on behalf of Jane Doe #2) v. Metropolitan Nashville Public Schools, students alleged their school district was “deliberately indifferent” and violated their rights under Title IX when the school failed to act and permitted pervasive sexual harassment to continue.

According to court documents, Jane Doe was in the 9th grade when four male upperclassman “subjected her to unwelcome sexual activity” on school property. A video recording the incident was subsequently made public. In another school within the District, another freshman student (referenced as Sally in the complaint) was “led to the bathroom by a male student” and was “pressured” to “per[form] a sexual act.” Like Jane, Sally was recorded performing the sexual act and the video was distributed throughout the student body.  In their complaint, the plaintiffs alleged two main theories of liability under Title IX, known informally as “before” and “after” Title IX claims. Under this theory, a District can be liable for conduct “before” a student is harassed, and for conduct “after” they are harassed.

To support their “before” claims the plaintiffs argued that the District had a “widespread problem of sexual harassment in its schools” and referenced “numerous instances of sexual misconduct” where sexual videos were distributed amongst the student body. At the District Court level, the Court rejected the plaintiffs’ arguments for the “before” claims, reasoning that there was “no evidence that the district was on notice of [the] harassment.” On appeal, however, the Court found evidence of over 900 “instances of sexual harassment in the district” before Jane and Sally Doe’s incidents took place. The Sixth Circuit also clarified that when a student demonstrates that the “school’s deliberate indifference to a pattern of student-on student sexual misconduct leads to sexual misconduct against the student,” causation is established.

As for the “after” claims, the Sixth Circuit held that the District’s response to Sally Doe’s harassment was inadequate. In its opinion, the Court reasoned that when Sally Doe’s mother met with school officials about Sally’s harassment, the principal said the “matter was out of [his] hands” and told the mother to contact local law enforcement.  According to the opinion, the principal did not “inform the head of school” about the meeting, refer Sally to the Title IX Coordinator, or communicate “any steps the school would take” to address the incident.  Ultimately, the court stated that “a reasonable jury could conclude that… the District opted to avoid the problem, resulting in Sally being forced to choose between homeschooling or enduring future misconduct.”

To some experts, this decision is a sign that K-12 schools may be held to a different standard than higher education institutions for Title IX liability. The Court’s emphasis on how the District’s processes “failed the student” highlights the importance of ensuring that K-12 administrators at all levels are trained on reporting requirements, the grievance process, and supportive measures. This case also demonstrates the vital role Title IX investigators have on overall Title IX compliance.

To help Title IX teams gear up for the 2022-2023 school year, ICS will hold an in-person training for K-12 Title IX Investigators on September 15th, 2022 in Chattanooga TN. For more details about the training and a link to register, see our website.

EEOC Adds Non-Binary Gender Option to Discrimination Intake Form

June 9, 2022

This spring, the Equal Employment Opportunity Commission (EEOC) announced that individuals may select a non-binary gender marker, “X”, on the intake process when filing a charge of discrimination. According to EEOC Chair Charlotte A. Borrows, the intake form should represent all employees and all members of the LGBTQ+ community. The EEOC believes this move is critical in “advanc[ing] [its] mission to prevent and remedy employee discrimination… including those who do not identify as male or female.” To reflect the full gender spectrum, the EEOC will add “X” options to the “voluntary demographic questions” in the EEOC online portal and include the “Mx.” salutation in the prefix options.

According to the White House, the letter “X” is quickly becoming the symbol utilized by the U.S. government to indicate gender-neutrality. Also recently, the State Department introduced that U.S citizens can select “X” as their preferred gender. For more information on the federal government’s incorporation of neutral pronouns, see Fact Sheet- Biden-Harris Administration Advances Equality and Visibility for Transgender Americans.


Court of Appeals Rules School District Not “Deliberately Indifferent”

June 2, 2022

On May 10, 2022, a federal Court of Appeals in Wisconsin upheld a District Court ruling that Madison Metropolitan School District was not liable for failing to discipline a school’s security guard who “massaged” and “full-frontal bear-hugged” students. The plaintiff (a former middle school student), alleged that a security guard, Mr. Collins, began hugging her in an inappropriate manner, frequently making contact with her chest and her “private area.” Once the plaintiff’s mother learned about the abuse she sued the school district, alleging that the district had actual knowledge of Mr. Collins’ behavior and failed’ to protect her daughter. After the District Court granted summary judgment to the school district back in 2016, the Seventh Circuit affirmed the ruling, holding that school officials “were not aware” of the behavior and that Mr. Collins’ behavior did not “interfe[re] with her education.” The Seventh Circuit eventually agreed to rehear the case en banc (before the entire Seventh Circuit bench) in 2019. During oral arguments, the plaintiff argued that the school was deliberately indifferent to the student’s abuse because it had actual knowledge of Mr. Collins’ behavior. According to the school district, upon learning about the inappropriate conduct, the school principal held a meeting with Mr. Collins, “warning him” to “set strong boundaries” and that hugs were “inappropriate,” even though school officials didn’t believe Mr. Collins’ conduct was sexual in nature. The plaintiff argued that this meeting demonstrated the school had actual knowledge of the abuse but that officials did not take enough steps to stop the behavior.

Although the court unanimously found that Mr. Collins’ hugs constituted inappropriate sexual harassment, the court held that the hugs “did not in themselves make the school liable for sex discrimination.” Rather, the court stated that under Title IX, a district’s duty to act is not “triggered until it has actual knowledge” that discrimination “has occurred or is occurring under its watch.” Relying on Gebser’s two-prong standard, the court also clarified that a plaintiff can only recover when the defendant has actual notice and acts with deliberate indifference. Ultimately, the court held that when the school principal warned Mr. Collins to “limit physical contact” with the plaintiff, the school did not demonstrate deliberate indifference and ruled it was “properly calibrated” under the circumstances.  It is also notable that Judge Scudder, the author of the opinion, commented that while the standard of liability in Title IX matters is clear, it “manifests in shades of gray” on the ground. “[A]s a practical matter – when school officials have to make decisions in real time- the best course will be to err on the side of taking reactive and preventive measures to ensure compliance with Title IX.”

ICS provides a wide range of compliance services for institutions and school districts. Contact us for more information.

Jane Doe v. Fairfax County School Board: The Supreme Court Is Asked to Revisit “Causation Requirement” from Davis v. Monroe County Board of Education.

May 19, 2022

The Supreme Court of the United States has been asked to re-examine the “causation requirement” from Davis v. Monroe County Board of Education in a Fourth Circuit Case, Jane Doe v. Fairfax County School Board.  Under Davis, school may be liable under Title IX when it is “deliberately indifferent to known acts of student-on student sexual harassment and the harasser is under the school’s disciplinary authority.” To prevail, the plaintiff must show that the school had actual knowledge of sexual harassment and that its response was deliberately indifferent. A school’s actions are deliberately indifferent if their response is “clearly unreasonable in the light of known circumstances.” The court in Davis also concluded that the plaintiff must demonstrate causation – the school’s indifference “cause[d] students to undergo harassment” or “make[s] them vulnerable to it.”

Since this ruling, however, courts have been divided on what consequences arising from deliberate indifference are adequate to support a Title IX Claim. Some courts have ruled that the Davis causation standard is satisfied if deliberate indifference causes additional sexual harassment or “vulnerability to sexual harassment,” while other courts have held that a school is liable if deliberate indifference causes additional sexual harassment alone.  Despite these conflicting views, for some Title IX experts, the Supreme Court’s willingness to hear Doe is an opportunity for the Court to provide long-awaited clarity on this issue.

In Jane Doe v. Fairfax County School Board, the plaintiff (Jane) alleged that Jack (a male classmate) inappropriately touched her during a school sponsored trip. School staff members subsequently reported the conduct to senior officials and called for an investigation.  Jane sued the school, alleging they were deliberately indifferent in their response to her complaint and argued the school had actual knowledge of her sexual harassment.  Although a jury found Jack responsible for his conduct, they found that the school did not have actual knowledge of the harassment and ruled in favor of the school. Because the school did not have actual knowledge, the jury did not address whether the school’s response was deliberately indifferent.

When Jane appealed, a Fourth Circuit panel reversed and remanded the case for a new trial, 2-1.  The majority concluded that the school had actual knowledge when Jane’s complaint was received and that the “jury erred” in its conclusion.  In his majority opinion, Judge Wynn also held that Title IX liability is “not necessarily limited to cases where [harassment] occurs after [the school] receives notice and is ‘caused’ by its own post-notice conduct.” Rather, a school is liable if its response is “clearly unreasonable” and makes the plaintiff more vulnerable to additional harassment. The dissent, on the other hand, concluded that Jane’s incident was a “one time act of sexual misconduct” and that there was no causal nexus between the school’s conduct (or lack thereof) and Jane’s harassment.

After the defendant’s petition for rehearing and motion to stay was denied, the defendant filed a petition for a writ of certiorari to the United States Supreme Court. After reviewing the case last week, the Supreme Court has invited the Solicitor General to “file a brief in this case expressing the views of the United States.” As practitioners await the NPRM, some experts believe the Solicitor General’s brief will contain information contained in the upcoming regulations.

ICS provides a wide range of compliance services for institutions and school districts. Contact us for more information.