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.
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