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

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.