Sexual Harassment Roundup

Here is a summary of a few recent decisions in cases where the plaintiffs sought to hold educational institutions liable under Title IX for failing to adequately respond to peer harassment and assault.

The Sixth Circuit Court of Appeals upheld a lower courts summary dismissal of a Title IX claim against a Tennessee school district alleging deliberate indifference to pervasive bullying of the plaintiff.  The appellate court affirmed that the deliberate indifference standard "sets a high bar for plaintiffs." Here, school officials respond to individual accounts of bullying by a variety of methods including investigation and discipline, as well as proactive measures like separation and monitoring. The court noted that it is possible for officials to demonstrate deliberate indifference by continuing to rely on the same methods that are proven to be ineffective at eliminating the problem. But according to the court, that is not what happened here. School officials employed a variety of responses that were proportionate to the offense and effective at addressing individual sources of bullying.  There were almost no "repeat offenders" nor were there apparent connections between various bullies who contributed to the problem over time.  Accordingly, the appellate court held that the district court was correct to determine that the school officials' response was not clearly unreasonable as a matter of law.  Decision: Stiles ex rel. D.S. v. Grainger County, 2016 WL 1169099 (6th Cir. Mar. 25, 2016).

A federal court in Virginia dismissed a plaintiff's Title IX claim against Bridgewater College that had alleged the college was deliberately indifferent in its response to her report of sexual assault by a fellow student.  Specifically, she had alleged that the college violated its own policy when it discouraged her from simultaneously reporting the matter to the police, failed to advise her of her rights, didn't allow her to present witnesses, and didn't keep her involved and advised of the disciplinary process. In rejecting this argument the court held that the judicial standard of institutional liability for damages under Title IX is not conclusively satisfied by claims that the college violated its own policy.  Instead, the college must be "deliberately indifferent" to the plaintiff's claim, which is a higher standard. Here, the college promptly conducted an investigation, held a disciplinary hearing, and suspended the respondent--a response that cannot be classified as "indifferent". This case illustrates the difference between the judicial standard for institutional liability where money damages are at stake, and the Department of Education's compliance standard to determine whether a college can continue to receive federal funding. Because the standards are different, the fact that the plaintiff's allegations may have constituted violations of the Department of Education's Dear Colleague Letter did not enter in to the court's analysis. Decision: Faccetti v. Bridgewater College, 2016 WL 1259415 (W.D. Va. Mar. 30, 2016).

In Connecticut, a federal court dismissed a Title IX claim against Torrington School District in a case challenging the school district's response to prolonged bullying of the plaintiff by other students.  The bullying consisted of verbal harassment, much of it by fellow members of the high school football team, as well as an incident of sexual assault.  The court ruled out that the school district could be liable for its response to the sexual assault, which occurred over the summer and off school grounds, because when it was eventually reported to school officials, they responded immediately to the report by separating the plaintiff from the bullies. The court ruled that the rest of the harassment was outside the scope of Title IX because there was no evidence that the bullies were motivated by the plaintiff's gender.  The court rejected the plaintiff's contention that some of the bullies' slurs, like "bitch," "pussy," and "faggot," satisfied this element, a conclusion that was surprising to me, given those words in isolation connote effeminacy and even more so in the context of a football team, where masculinity is rigorously policed.   Decision: Doe v. Torrington Public Schools, 2016 WL 1257819 (D. Conn. Mar. 30, 2016).