The Fourth Circuit Court of Appeals recently decided what constitutes actual notice for sexual harassment in Title IX cases. A school has actual knowledge, also referred to as actual notice, when a report is made to any school official, regardless of whether the school has substantiated the facts of the alleged assault. This ruling impacts schools and other organizations subject to Title IX if they fail to properly protect students and investigate claims once a sexual assault has been reported.
Allegations and the School’s Response
The 16-year-old student in Doe v. Fairfax, listed as “Jane Doe,” alleged that she was sexually assaulted by an older male student on the bus during a school band trip. Doe testified that as she was sitting next to “Jack Smith” on the bus, he forced her to touch his penis, groped her breasts, and digitally penetrated her.
Upon arriving at their location, Doe told two friends about the assault, both of whom immediately informed the school’s assistant principal, a chaperone on the trip. The assistant principal did not speak to Doe about the assault and did not contact Doe’s parents. School officials did not interview Doe until almost four days later, when Doe informed them that the acts on the bus were not consensual. School officials also interviewed Smith, who admitted to groping Doe on the bus. Despite Smith’s admission, the school informed Doe’s parents that this behavior did not “amount to sexual assault” and that the school was even considering disciplining Doe for engaging in sexual behavior on a school trip. Smith was not disciplined in any way. Doe had to continually see and interact with Smith at school if she wanted to continue partaking in activities such as band.
Aftermath for Doe
As a result of the sexual assault—and the school’s handling of it—Doe sought professional counseling and was diagnosed with adjustment disorder with anxiety. Doe then brought a Title IX action against the school board for the school’s deliberate indifference to her reports of sexual assault. After a two-week trial, the jury found that Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school. However, the jury found that the school did not have actual knowledge of the assault, and therefore could not be liable. Because the school did not have actual knowledge, the jury did not answer the question of whether the school acted with deliberate indifference.
Establishing Actual Knowledge
To establish a Title IX claim based on student-on-student sexual harassment, a plaintiff must show that:
- They were a student at an educational institution receiving federal funds;
- They suffered sexual harassment that was so severe, pervasive, and objectively offensive that it deprived them of equal access to the educational opportunities or benefits provided by their school;
- The school, through an official who has authority to address the alleged harassment and to institute corrective measures, had actual notice or knowledge of the alleged harassment; and
- The school acted with deliberate indifference to the alleged harassment.
This case centers on the third element: whether the school had actual notice that an assault occurred. Because the jury found that the school board did not have actual knowledge, the jury never considered whether the fourth element of the claim was met. In granting Doe a new trial, the Fourth Circuit held that a school’s receipt of a report of sexual assault or harassment constitutes actual knowledge in Title IX cases, regardless of whether the school believes an assault actually occurred.
Although the Fourth Circuit did not rule on whether the school acted with deliberate indifference towards Doe’s report of sexual assault, the Court’s decision that a report made to a school official satisfies the notice requirement has large implications. This ruling changed the standard for Title IX cases from a subjective interpretation of whether the school knew of the assault to an objective standard. The Court emphasized that a report to a school official satisfies the element of actual knowledge, “regardless of whether the school officials subjectively understood the report to allege sexual harassment, or whether they believed the alleged harassment actually occurred.” This will prevent schools from evading liability by simply arguing the reported conduct does not constitute sexual assault.
Keep in mind that plaintiffs must still prove the other elements of a Title IX claim listed above to find the school board liable. This ruling does not extend a school’s liability under Title IX. The court emphasized, “If a school becomes aware of an unsubstantiated allegation of sexual harassment, duly investigates it, and reasonably dismisses it for lack of evidence, the school would not be liable since it did not act with deliberate indifference.” Instead, this decision holds schools accountable for failing to comply with their obligations under Title IX. It also makes it easier for students who have reported a claim of sexual assault to meet the element of actual notice.
A special thanks to Cohen Seglias summer associate Mara Stella for her contributions to this blog post.