In November 2023, the Sixth Circuit in S.C. v. Metropolitan Gov’t. of Nashville & Davidson County again addressed circumstances where recipients could be liable for deliberate indifference that occurred both before and after the plaintiff’s Title IX claim of sexual harassment. This recent case applied the standards previously set forth by the Sixth Circuit in May 2022 in Doe v. Metropolitan Gov’t. of Nashville and Davidson County (“Doe”), a related case involving a separate plaintiff who also sued the same Nashville school district.
Facts of the Case
In the case that resulted in this November 2023 decision, plaintiff S.C. (“S.C.”), a former high school student at Hunters Lane High School (“Hunters”), alleged that Metropolitan Nashville Public Schools (“MNPS”) was deliberately indifferent to “student on student harassment that she suffered related to her sexual assault.” During her freshman year, S.C. alleges she was recorded engaging in non-consensual sexual activity with a male student on school property. S.C. further alleges she was recorded without her consent. After the video was quickly distributed on social media and uploaded to explicit websites, S.C. was continually harassed by fellow students.
According to the opinion, Hunters’s Principal became aware of the video the night of S.C.’s alleged assault and arranged to meet with S.C. and her mother the next day. When S.C.’s peers learned of the meeting, S.C. alleged that students “began harassing and threatening S.C. and her family via social media.” During the meeting, S.C. provided an account of the incident in writing but was told to speak with a detective from the Metropolitan Nashville Police Department. S.C. and her mother then had an additional meeting with Hunters’s Principal, the substance of which was heavily disputed at trial. While S.C. testified that she disclosed that the encounter with the male student was not consensual and that she was harassed and intimidated by her peers, the Principal “denied being informed of any harassment or threats.”
S.C. also alleged that when she met with Hunters’s Assistant Principal and told her about the harassment and threats she received on social media, she was told to “take it up with the detective.” Due to the continuous harassment, S.C. began self-harming and suffered from “severe mental health disorders.”
Takeaways from the Case
- District Court to Review S.C.’s “before” claim with Doe in mind.
Writing for the majority, Judge Gibbons stated that a “reasonable jury” could find that the harassment S.C. experienced was the result of the school’s indifference to “pervasive sexual misconduct.” Like in Doe, the court noted that there were over 1,000 instances of sexual misconduct at MNPS during the 2016-2017 academic year. The court also reasoned that S.C.’s “before” claim is “effectively identical” to the claim in the Doe decision. Because S.C.’s claim was not evaluated under the standard outlined in Doe, the appellate court remanded S.C.’s claim back to District Court. For a more detailed overview of Doe, check out our previous blog on our website.
- Responding to Harassment on Social Media “after” S.C’s Title IX claim
After re-evaluating S.C.’s “after” claim, the court ultimately determined that the District Court correctly held that MNPS “failed to act in accordance with its obligations” under Title IX. While Hunters “swift[ly] discipline[d]” the students who initially circulated the video of S.C., Judge Gibbons noted that the “school did nothing” in response to the bullying and harassment aside from directing S.C. and her mother to law enforcement.
Although MNPS argued it did not have “substantial control” over social media, the court ultimately determined that the school had, and exercised, disciplinary control over the students who circulated the video of S.C. and the male student. Such action, the court reasoned, “demonstrate[d] exactly how the school could have exercised its authority.”
Despite the fact that Principal claimed she was not aware of the threats, the court also determined that “she certainly knew that the video was continuing to circulate against S.C.’s wishes,” and that its continued distribution could be “deemed a form of harassment.”
- S.C.’s Emotional Distress Damages Affirmed, despite Cummings ruling.
On appeal, MNPS argued that S.C.’s damages award of $75,000 for “loss of educational benefits and emotional distress” was invalid because after the District Court awarded those damages, and the Supreme Court ruled in Cummings v. Premier Rehab Keller, P.L.L.C. that emotional distress damages were “no longer permitted for violations of Title IX.” Because MNPS did not raise this argument in District Court, the Sixth Circuit evaluated whether MNPS forfeited this argument. While a party normally may not raise an issue for the first time on appeal, the Court stated that “an intervening change of controlling law” may permit “setting aside forfeiture.” However, in this case, the Court determined that MNPS forfeited its arguments on emotional distress because the “issue was not conclusively settled by precedent” before Cummings and MNPS did not raise damages when they were an “open question” in District Court.
- Separating Title IX Investigations and Criminal Investigations
Finally, the opinion also explicitly reminds institutions that referring a student to law enforcement is not a substitute for complying with Title IX. Judge Gibbons writes, “[A]s this court explained in Doe, ‘MNPS has Title IX obligations that are separate and apart from any criminal matter.'”
Our Team’s Practical Points
While this litigation is ongoing, this case provides valuable insight on what courts are considering when evaluating Title IX liability for deliberate indifference. Specifically, the Court’s analysis on “before” and “after” Title IX claims shows that courts are carefully evaluating an institution’s response to Title IX conduct, an institution’s culture for addressing discrimination and harassment, and an institution’s policies and procedures. Below are some practical tips that you can implement on the ground.
- Enhance the Visibility of your Title IX Team: Ensure reports are forwarded to your Title IX Coordinator and ensure student/staff and parents know how to report conduct and contact the Title IX Coordinator.
- Distinguish Law Enforcement Process from Title IX Process: Remember, if you receive a report and the alleged conduct falls under Title IX, it must go through the formal grievance process. This process is separate and distinct from any law enforcement investigation or process. For more information about these parallel processes, check out our blog entitled, Parallel Tracks: Response to Title IX and Criminal Matters.”
- Importance of Supportive Measures: Although the Title IX Coordinator was not involved in the above process, upon receiving a report of alleged Sexual Harassment, the Complainant must be offered supportive measures. Supportive measures can include, but are not limited to: counseling; no contact directives; increased security and monitoring of certain areas; escort services; and modification of class schedule. For more on supportive measures, check out our blog on how to navigate the Title IX process with support at the forefront.
- School Culture & Climate: School districts can proactively address discrimination, harassment, and bullying, by fostering a positive school climate. Steps schools can take, include, but are not limited to: educating students about Title IX; empowering bystanders to report conduct; and establishing and modeling norms/values/expectations that support social, emotional, and physical safety. For more information on this, check out Betsy Smith’s blog on prevention.