One of the biggest changes from the new Title IX regulations issued by the Department of Education last week is that, beginning in August 2020, OCR’s complaint findings will be based on standards very similar to those used by federal courts for decades in lawsuits for money damages under Title IX. The U.S. Supreme Court set forth the standards in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Those cases included the fundamental ideas that have now been codified—in modified form—in the Department’s final rule, such as the ideas that a school can only be responsible for sexual harassment that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit”; when it exercises “substantial control” over the harasser and the “context” of harassment; and when it has “actual knowledge” of the sexual harassment. These cases also are the root of the “deliberately indifferent” standard that OCR will now use to decide if a school has violated Title IX. What do these standards mean, and what lessons can your institution learn from the court cases in which they were created and fleshed out over the past two decades?

Severe, Pervasive, and Objectively Offensive

A threshold question in a sexual harassment case under the Gebser/Davis framework is whether the conduct alleged was so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to educational opportunity or benefit. This is a change from OCR’s previous standards which, although variable, generally required a showing only that conduct was so severe, pervasive, or persistent that it impeded access to an educational opportunity or benefit. But this standard has been addressed in many cases involving complaints for money damages under Title IX. What are some of the key principles we can learn from those cases on the “hostile environment” standard?

Factors that bear on the “severe, pervasive, and objectively offensive” assessment include the frequency of the offensive conduct; the nature of the unwelcome sexual acts or words, such as whether the harassment was physical, verbal or both; whether the harassment was merely an offensive utterance; and the relationship between the parties. In other words, whether gender-oriented conduct rises to the level of actionable harassment depends on a “constellation of surrounding circumstances, expectations, and relationships, including, but not limited to, the ages of the harasser and the victim and the number of individuals involved.”

What else can we learn from case law interpreting this standard?

• Courts have found that a single incident of, for example, offensive touching, is not sufficient to rise to the level of severe, pervasive, and objectively offensive conduct. Some courts have even held that three separate occasions of sexual harassment involving a male student shoving a female student into a locker, demanding that she perform sexual acts on him, and making obscene gestures at her, was not severe, pervasive, and objectively offensive because the complainant could not explain how the incidents deprived a student’s access to educational resources, opportunities, or benefits.
• Courts have deemed conduct to be severe, pervasive, and objectively offensive where a party can demonstrate an interference with educational opportunities, such as a drop in grades and decreased attendance.
• The surrounding circumstances play an important role. Courts have held that where profanity and offensive or gendered language may be commonplace in the heat of a football game and therefore not meet the high bar for severe, pervasive, and objectively offensive conduct, the same conduct could be viewed differently if used in the context of chess club or the debate team.
• Even if conduct is deemed severe, pervasive, and objectively offensive, it still may not rise to the level of being so severe, pervasive, and objectively offensive that it has the effect of denying access to education. Courts have held that while repeated sexually explicit and vulgar language and acts of objectively offensive touching may be severe, pervasive, and objectively offensive, if they fall short of demonstrating a systemic effect of denying equal access to an educational program or activity, the conduct will not meet this standard.

One thing that seems pretty clear: Under this standard, it will be more difficult for conduct between young students and purely verbal teasing and name-calling among schoolchildren to be found as sexual misconduct for Title IX purposes. How the standard plays out when adults and older students are the respondents will likely be a shift from what we are used to from OCR, as well.

Does that mean that perpetrators of single instances of heinous sexual misconduct in schools will be off the hook? Absolutely not. For instance, if an employee engages in conduct with a student that could be described as a quid pro quo based on sex, or if the conduct fits under the definition of one of the “big four” under the Clery Act and the Violence Against Women Act (VAWA)—sexual assault, domestic violence, dating violence, and stalking—the Department modified the Gebser/Davis standard to ensure that conduct would be covered, even without showing that the conduct meets the new hostile environment standard. Because courts often defer to agencies’ interpretations of the law, these changes to the definition of “sexual harassment” under the Title IX regulations could, in fact, impact future lawsuits for money damage by swaying how courts analyze hostile environment with respect to quid pro quo and the “big four” misconduct.

Substantial Control

Substantial control comes into play under the new Title IX rules with respect to the requirement that sexual harassment be “in the program or activity” of an educational institution for the conduct to fall within Title IX jurisdiction. According to the rules, conduct is within the program or activity of a school if the school exerts substantial control over the harasser and the context of the harassment. One of the big concerns with this definition relates to online, off-campus misconduct between members of a school community—will that conduct fall under the new Title IX definition?

The new regulations do not define the terms “substantial control” or the “context” of harassment, but those terms have long been in the lexicon of Title IX litigators. Here are some principles we can glean from that case law:

• Substantial control has been found over social media communications when the harassing messages originated on or within the immediate vicinity of the university, offending messages were posted using the University’s network, and harassment concerned events occurring on campus and targeting University students.
• A University has been found to have substantial control over conduct at an off-campus fraternity house where the University devoted significant resources to the promotion and oversight of fraternities, considered the fraternity a University organization, appointed a University instructor as the fraternity’s director, and has the authority to sanction chapters for conduct that occurs at the off-campus private fraternity houses. Note: This dovetails nicely with the new rules, which explicitly say that conduct at a building owned or operated by an officially recognized student organizations, such as fraternities and sororities, fall within the definition of sexual harassment.
• Alternatively, when conduct occurs at a school in another district or off school grounds entirely, courts have been less likely to find that the school had sufficient control over the harasser or the context of the harassment.

Actual Knowledge

Under Gebser, a plaintiff is required to show that a school had “actual” notice of discrimination, and now OCR will use that standard instead of its previous “should have known” constructive knowledge standard. Some interesting things to note from the case law on actual knowledge:

• According to some courts, actual knowledge does not require absolute certainty that harassment has occurred, but there must be something more than an awareness of a mere possibility of harassment.
• Courts have held that an employee’s own knowledge of his or her actions constitution unlawful sexual harassment has been held not to sufficient for “actual knowledge” on the part of his employer school. Under previous OCR guidance, such knowledge would be imputed to the school even if the only persons who knew of the conduct were the perpetrator and victim. Again, this dovetails nicely with the new rules, which specifically say that if the only employee who knows about the misconduct is the employee who engaged in the conduct, that knowledge will not be imputed to the school.
• Other court have found that if a school knows of an employee’s propensity or proclivity to sexually harass children, that may constitute actual knowledge for a later victim’s Title IX claim.
• The words used in a report may matter. One court, for instance, held that plaintiff’s two complaints of boys “bothering her” did not constitute actual notice of sexual harassment.
• A plaintiff must prove actual knowledge of misconduct, not just actual knowledge of the risk of misconduct. However, this does not preclude a finding of actual knowledge where a school has knowledge of misconduct that would create a risk of further harm if nothing is done. For example, the Seventh Circuit held that a school could find actual knowledge of a teacher’s acts because the teacher was known to be a “serial harasser,” even though it did not possess actual knowledge of the teacher’s acts toward any particular plaintiff.

Although it remains to be seen whether OCR will incorporate any of these ideas into its administrative analysis, these and other cases may be useful to address whether an education institution has the requisite knowledge for a Title IX violation to be found.

The Deliberate Indifference Standard

A school district is only deliberately indifferent to acts of student-on-student harassment if its response to the harassment, or lack thereof, is clearly unreasonable considering the known circumstances. According to Gebser, deliberate indifference requires an official decision to refuse to act and not to remedy a violation. It requires more than negligent, ineptness, erroneous or ineffective decisions, actions or omissions by school administration.

Notably, Title IX does not require that a school remedy peer harassment but requires simply that it respond to the known peer harassment in a manner that is not clearly unreasonable. A victim of peer harassment does not have the right to any specific remedy or measure that he or she might prefer. Davis admonished courts to refrain from second guessing the disciplinary decisions made or not made by school administrators. Rather, courts will generally ask only whether a school did some form of investigation and implemented some sort of remediation. And a school’s failure to comply with Department regulations on Title IX is usually not enough, alone, to establish deliberate indifference.

With that in mind, what are some examples where deliberate indifference was found?

• Courts have found deliberate indifference where a University’s failure to investigate after reports of sexual harassment caused plaintiffs to be vulnerable to sexual harassment by allowing the student-assailant to continue attending the University alongside plaintiffs.
• Refusal to conduct an investigation or take action after learning about an assault, even in the absence of a formal complaint, has been found to constitute deliberate indifference. This is true even where a school “talked” to attackers in a case involving sexual attacks.
• Courts have also found that failure to provide adequate policies, training, and supervision when there is an obvious need and the current inadequacy of which was very likely to result in Title IX violations amounted to deliberate indifference.

These examples are just the tip of the iceberg when it comes to clues that can be found in case law on Title IX money damages cases with respect to the new standards that will be in play soon from OCR. When we worked at OCR (Jackie as an attorney and Emily as an intern), attorneys and investigators often skimmed right over case law that parties cited in narrative responses, because, frankly, they weren’t very relevant to the OCR analysis at the time. Now, however, it will be more important than ever for those preparing an institution’s response to OCR complaints to be well steeped in the legal standards from Gebser and Davis and the cases that have developed those standards over time, because your next Title IX complaint with OCR may feel a lot more like a lawsuit than an OCR complaint.