Petition for Writ of Certiorari — Fairfax County School Board, Petitioner v. Jane Doe

Supreme Court briefDec 30, 2021

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No. 21-___

IN THE

Supreme Court of the United States

————

FAIRFAX COUNTY SCHOOL BOARD,

Petitioner,

JANE DOE,

Respondent.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

PETITION FOR WRIT OF CERTIORARI

————

SONA REWARI

HUNTON ANDREWS

KURTH LLP

2200 Pennsylvania Ave., NW

Washington, DC 20037

(202) 955-1500

ELBERT LIN

Counsel of Record

TREVOR S. COX

HUNTON ANDREWS

KURTH LLP

951 East Byrd Street,

East Tower

Richmond, VA 23219

elin@HuntonAK.com

(804) 788-8200

Counsel for Petitioner

December 30, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

Petitioner is among the thousands of school systems

and other entities across the country that, as a condition of receiving federal funding, must comply with

Title IX’s prohibition on sex-based discrimination. The

primary enforcement mechanism, set forth expressly

in the statute, is through complaints to and investigations by federal agencies. But this Court has found

implied in the statute a private right of action against

recipients, for monetary damages, in limited circumstances. The scope of that implied right must remain

carefully calibrated, this Court has stressed, because

the Spending Clause requires that recipients receive

clear notice of any conditions on their funding.

This case concerns two of this Court’s limitations on

the implied right of action in cases alleging studenton-student sexual harassment. In Davis v. Monroe

County Board of Education, this Court held that a

funding recipient may be liable for its response to such

allegations only where it “subjects its students to

harassment” and is “deliberately indifferent to sexual

harassment, of which [the recipient] ha[s] actual

knowledge.” 526 U.S. 641, 650 (1999) (cleaned up). The

lower courts are indisputably divided over the meaning of these limitations.

The questions presented are:

1. Whether a funding recipient may be liable

in damages in a private action under Davis when

the recipient’s response did not itself cause any

harassment actionable under Title IX.

2. Whether the requirement of “actual knowledge” in a private action under Davis is met when a

funding recipient lacks a subjective belief that any

harassment actionable under Title IX occurred.

(i)

RULE 29.6 STATEMENT

Petitioner Fairfax County School Board is a governmental entity with no parent corporation or shares

held by a publicly traded company.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

RULE 29.6 STATEMENT ...................................

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

STATUTORY PROVISIONS INVOLVED ..........

STATEMENT OF THE CASE ............................

Legal background......................................

II.

Factual background ..................................

III. Proceedings below .....................................

A. District court proceedings ...................

B. Fourth Circuit appeal ..........................

REASONS FOR GRANTING THE PETITION....

The Fourth Circuit’s holding that a funding recipient’s conduct need not cause

actionable harassment conflicts with this

Court’s decision in Davis and further

entrenches an acknowledged circuit split ...

A. The Fourth Circuit departed from

this Court’s instruction in Davis that

liability is triggered only where the

funding recipient’s response itself

leads to harassment ............................

B. The courts of appeals are sharply

divided on this question ......................

(iii)

TABLE OF CONTENTS—Continued

Page

II.

The Fourth Circuit’s holding that an

objective standard applies to the “actual

knowledge” requirement conflicts with this

Court’s precedents and those of several

other circuits .............................................

A. The Fourth Circuit’s “actual knowledge” analysis conflicts with this

Court’s precedents ...............................

B. The Fourth Circuit’s decision conflicts

with the decisions of other circuits .....

III. This case raises recurring issues of

exceptional importance to school districts

across the country .....................................

IV. This case is an ideal vehicle .....................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: Opinion, Doe v. Fairfax Cty.

Sch. Bd., 1 F.4th 257 (4th Cir. 2021).............

APPENDIX B: Order denying rehearing en

banc, Doe v. Fairfax Cty. Sch. Bd., 10 F.4th

406 (4th Cir. 2021) .........................................

44a

APPENDIX C: Order denying motion to stay

mandate, Doe v. Fairfax Cty. Sch. Bd., No.

19-2203 (4th Cir. Sept. 22, 2021) ...................

79a

APPENDIX D: Special interrogatory verdict

form, Doe v. Fairfax Cty. Sch. Bd., No. 1:18cv-614 (E.D. Va. Aug. 9, 2019) .......................

81a

TABLE OF CONTENTS—Continued

Page

APPENDIX E: Judgment, Doe v. Fairfax

Cty. Sch. Bd., No. 1:18-cv-614 (E.D. Va.

Aug. 9, 2019) ...................................................

84a

APPENDIX F: Memorandum opinion and

order, Doe v. Fairfax Cty. Sch. Bd., No. 1:18cv-614, 2019 WL 8887765 (E.D. Va. Sept. 27,

2019) ...............................................................

85a

APPENDIX G: Order, Doe v. Fairfax Cty.

Sch. Bd., No. 1:18-cv-614 (E.D. Va. Sept. 27,

2019) ...............................................................

90a

APPENDIX H: Order, Doe v. Fairfax Cty.

Sch. Bd., No. 1:18-cv-614 (E.D. Va. Oct. 23,

2019) ...............................................................

91a

TABLE OF AUTHORITIES

CASES

Page(s)

Arlington Cent. Sch. Dist. Bd. of Educ. v.

Murphy,

548 U.S. 291 (2006) ...................................

Cannon v. Univ. of Chi.,

441 U.S. 677 (1979) ......................................

Davis v. Monroe Cty. Bd. of Educ.,

526 U.S. 629 (1999) ..................................passim

Doe v. St. Francis Sch. Dist.,

694 F.3d 869 (7th Cir. 2012) ............... 26, 27, 31

Escue v. N. Okla. Coll.,

450 F.3d 1146 (10th Cir. 2006) ........... 18, 19, 20

Farmer v. Brennan,

511 U.S. 825 (1994) ................................... 24, 26

Farmer v. Kan. State Univ.,

918 F.3d 1094 (10th Cir. 2019) .................

Fitzgerald v. Barnstable Sch. Comm.,

504 F.3d 165 (1st Cir. 2007), rev’d

and remanded on other grounds,

555 U.S. 246 (2009) ..................................passim

Foster v. Bd. of Regents,

952 F.3d 765 (6th Cir.), reh’g en banc

granted, 958 F.3d 540, on reh’g en banc,

982 F.3d 960 (6th Cir. 2020) ......................

Franklin v. Gwinnett Cty. Pub. Schs.,

503 U.S. 60 (1992) .....................................

Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998) ...................................passim

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Hare v. City of Corinth,

74 F.3d 633 (5th Cir. 1996) .......................

Hill v. Cundiff,

797 F.3d 948 (11th Cir. 2015) ................... 31, 32

Intel Corp. Inv. Policy Comm. v. Sulyma,

140 S. Ct. 768 (2020) ................................. 24, 25

Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167 (2005) ...................................

K.T. v. Culver-Stockton Coll.,

865 F.3d 1054 (8th Cir. 2017) ............. 17, 18, 19

Kollaritsch v. Mich. State Univ. Bd. of Trs.,

944 F.3d 613 (6th Cir. 2019),

cert. denied, 141 S. Ct. 554 (2020) ...........passim

Papelino v. Albany Coll. of Pharmacy of

Union Univ.,

633 F.3d 81 (2d Cir. 2011) ........................

Pennhurst State Sch. & Hosp. v.

Halderman,

451 U.S. 1 (1999) ..........................................

1, 13

Reese v. Jefferson Sch. Dist. No. 14J,

208 F.3d 736 (9th Cir. 2000) ..................... 18, 19

Rosa H. v. San Elizario Indep. Sch. Dist.,

106 F.3d 648 (5th Cir. 1997) ............... 26, 27, 28

Shank v. Carleton Coll.,

993 F.3d 567 (8th Cir. 2021) ..................... 17, 18

Shrum ex rel. Kelly v. Kluck,

249 F.3d 773 (8th Cir. 2001) ............... 12, 26, 27

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Williams v. Bd. of Regents of the Univ.

Sys. of Ga.,

477 F.3d 1282 (11th Cir. 2007) ................. 18, 20

CONSTITUTION

U.S. Const. art. I, § 8, cl. 1 ..........................passim

U.S. Const. amend. VIII ............................... 24, 27

STATUTES

28 U.S.C. § 1254(l) ........................................

42 U.S.C. § 1983 ...........................................

Title IX of the Education Amendments of

1972, 20 U.S.C. § 1681 et seq. ..................passim

§ 1681 ........................................................

§ 1681(a) .............................................. 5, 6, 8, 15

§ 1682 ........................................................

COURT FILINGS

Joint Appendix, Doe v. Fairfax County

School Board, No. 19-2203 (4th Cir.

Feb. 7, 2020), ECF No. 19 ........................passim

OTHER AUTHORITIES

Hannah Brenner, A Title IX Conundrum:

Are Campus Visitors Protected from

Sexual Assault, 104 IOWA L. REV. 93

(2018) .........................................................

TABLE OF AUTHORITIES—Continued

Page(s)

Lauren E. Groth, et al., Giving Davis Its

Due: Why the Tenth Circuit has the

Winning Approach in Title IX’s Deliberate Indifference Controversy, 98 DENV. L.

REV. 307 (2021) .........................................

U.S. Dep’t of Educ., Office for Civil Rights,

Title IX and Sex Discrimination (rev.

Aug. 2021), https://www2.ed.gov/about/

offices/list/ocr/docs/tix_dis.html................

Zachary Cormier, Is Vulnerability Enough?

Analyzing the Jurisdictional Divide on

the Requirement for Post-Notice Harassment in Title IX Litigation, 29 YALE J.L.

& FEMINISM 1 (2017) ................................. 21, 29

PETITION FOR WRIT OF CERTIORARI

This is “no routine” case, as one dissenting judge

below put it plainly. It presents two exceptionally

important questions “concern[ing] the standards for

school board liability for unforeseeable incidents of

student sexual misconduct in schools across . . . our

country.” App.62a (Wilkinson, J., dissenting from denial

of rehearing en banc). The court below answered both

questions in conflict with this Court’s precedents

and, by its own admission, with the decisions of other

federal courts of appeals. The Court should grant

review to resolve these conflicts.

Both questions go to the scope of the implied private

right of action under Title IX. In 1972, Congress

enacted Title IX with the worthy goal of preventing

recipients of federal financial assistance from using

those funds in a discriminatory manner. Although the

statute’s primary and only express enforcement mechanism is withdrawal of federal funding for noncompliant

recipients, this Court has recognized an implied right

of action that allows private recovery of monetary

damages. In doing so, however, this Court has stressed

the importance of clear limitations and “examin[ing]

closely the propriety of [such] private actions.” Gebser

v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 (1998).

Because Title IX was enacted under Congress’s spending power, liability may only be imposed where the

funding recipient may be considered to have accepted

the funds with notice of such liability. Ibid.; Pennhurst

State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1999).

When the Court expanded schools’ liability to include

their responses to allegations of student-on-student

harassment in Davis v. Monroe County Board of

Education, 526 U.S. 629 (1999), it reiterated that the

“high standard” of deliberate indifference it adopted

would keep liability narrow. Schools would face liability not for the perpetrating student’s misconduct, but

only where their own conduct in response to known

harassment was deliberately indifferent and therefore

could be considered an “intentional” violation of Title

IX. Thus, the Court assured school systems, Title IX

liability would only attach where the school’s response

itself subjects a student to harassment. The Court

determined it “unlikely that Congress would have

thought” that “a single instance of one-on-one peer

harassment” should result in private liability. Id. at

653. Indeed, the Court brushed aside the dissent’s

concerns about “sweeping liability” as simply “fail[ing]

to appreciate these very real limitations on a funding

recipient’s liability under Title IX.” Id. at 652.

Two decades later, the Court’s assurances about the

narrowness of schools’ Title IX liability in private

actions ring increasingly hollow—at least in some parts

of the country. The extent of schools’ liability now

varies by circuit. Some courts of appeals have limited

liability under Davis to circumstances where a school’s

response to harassment itself causes a student to suffer

harassment. By contrast, other courts of appeals (including, now, the Fourth Circuit) find no such requirement

in Davis, and allow plaintiffs to obtain money damages

even where no actionable harassment can be attributed

to the school’s own conduct.

And the liability faced by a school within the Fourth

Circuit sweeps even broader still. The Fourth Circuit

has also essentially read the requirement of “actual

knowledge” out of Davis’s deliberate-indifference standard, by finding the requirement satisfied if the school

is made aware of facts that it should have considered

harassment. This replaces a subjective measure of

“actual” awareness—designed to ensure intentionality

before finding fault—with an objective measure that

sounds in negligence.

Funding recipients like Petitioner Fairfax County

School Board (the “School Board”) were never given

clear notice of these conditions on Title IX funds. A

once-limited means of holding schools liable for intentional discrimination has now become the default tool

for “a host of eager federal litigants” seeking money

damages and eschewing less lucrative forms and avenues of relief. App.65a (Wilkinson, J., dissenting from

denial of rehearing en banc). The result is an untenable situation for school systems, which must balance

litigation risk to the public fisc with the “practical

realities of responding to student behavior,” including

that “children may regularly interact in a manner that

would be unacceptable among adults.” Davis, 526 U.S.

at 652–653.

This Court should grant certiorari for four reasons.

First, the Fourth Circuit’s ruling that a funding

recipient may be liable for damages in a student-onstudent harassment suit when the recipient’s own

actions did not cause any harassment conflicts with

Davis and deepens an acknowledged circuit split.

Second, the Fourth Circuit’s ruling that the actualknowledge element of a Title IX claim is governed by

an objective standard, not a subjective one, also cannot

be reconciled with Davis or the decisions of several

other courts of appeals.

Third, both issues are of exceptional importance

to funding recipients across the country. The School

Board is but one of thousands of recipients threatened

with expanding liability.

Fourth, this case is an ideal vehicle for addressing

these critical issues. The case offers undisputed facts

with respect to these issues, a jury verdict on special

interrogatories, and robust, opposing opinions both at

the panel stage and on denial of rehearing en banc.

Sexual harassment is an important societal issue,

and victims must be supported. Like other funding

recipients, the School Board strives to provide a learning environment free from discrimination, and it takes

seriously its obligation to respond effectively to studenton-student harassment. Funding recipients are rightly

held liable when their own conduct intentionally causes

harassment. But Title IX liability rightfully does not,

under this Court’s precedents, extend to situations

where a recipient does not actually know of harassment or when its actions cause no harassment.

Because the Fourth Circuit so held, in conflict not only

with this Court’s case law but also with the decisions

of other courts of appeals, this Court should grant

certiorari and reverse.

OPINIONS BELOW

The opinion of the Fourth Circuit (App.1a) is

reported at 1 F.4th 257. The order of the Fourth

Circuit denying the School Board’s petition for rehearing en banc and accompanying opinions (App.44a) are

reported at 10 F.4th 406. The memorandum opinion

and order of the United States District Court for the

Eastern District of Virginia denying Respondent’s

motion for a new trial (App.85a) is reported at 2019

WL 8887765.

JURISDICTION

The Fourth Circuit’s judgment was entered on

June 16, 2021. On August 30, 2021, the Fourth Circuit

entered an order denying the School Board’s timely

petition for en banc rehearing. By order entered

November 16, 2021, this Court extended the time for

the School Board’s certiorari petition to January 13,

2022. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

20 U.S.C. § 1681(a) provides, in relevant part: “No

person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under

any education program or activity receiving Federal

financial assistance.”

STATEMENT OF THE CASE

This case concerns whether the School Board may

be held liable in damages under Title IX’s implied

private right of action for its response to a high-school

student’s allegation that her sexual encounter with

another student during a school-sponsored trip was—

contrary to what school officials understood from the

students—non-consensual. The parties dispute two

principles of law for which the relevant facts are

undisputed. First, may the School Board be held liable

even though its conduct did not cause the student to

suffer any harassment? Second, did the School Board

have the requisite “actual knowledge” of actionable

harassment even though school officials subjectively

believed that no harassment had occurred?

I. Legal background

Title IX of the Education Amendments of 1972, 20

U.S.C. § 1681 et seq., prohibits sex discrimination by

recipients of federal education funding. It provides

that “no person . . . shall, on the basis of sex, be

excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a).

Title IX’s “only express enforcement mechanism,

§ 1682, is an administrative procedure resulting in

the withdrawal of federal funding from institutions

that are not in compliance.” Fitzgerald v. Barnstable

Sch. Comm., 555 U.S. 246, 255 (2009). Under federal

agencies’ general “authority to promulgate and enforce

requirements that effectuate the statute’s nondiscrimination mandate,” Gebser, 524 U.S. at 292, school

districts are required to adopt and publish internal

grievance procedures to resolve complaints of sex discrimination. Common components of these procedures

include supportive measures for the complainant;

investigation of the complaint and relevant evidence

by a designated Title IX coordinator; a written report,

to which the parties may respond; review by a hearing

officer, with written input by the parties; a final decision with any disciplinary recommendations; and a

possible appeal by either party. At any time, persons

also may contact the U.S. Department of Education’s

Office of Civil Rights to report sex discrimination.

Although Congress did not expressly create a private

right of action to enforce Title IX, this Court has

recognized an implied right, Cannon v. Univ. of Chi.,

441 U.S. 677, 709 (1979), as well as a “damages remedy,”

Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 76

(1992), subject to strict limitations. Because Congress

enacted Title IX as an exercise of its powers under the

Spending Clause, “private damages actions are available only where recipients of federal funding had

adequate notice that they could be liable for the conduct at issue.” Jackson v. Birmingham Bd. of Educ.,

544 U.S. 167, 181 (2005) (quoting Davis, 526 U.S. at

640). Accordingly, in case after case, this Court has

made clear that important limits apply to Title IX’s

implied private right of action.

In Gebser, a case involving teacher-on-student

harassment, the Court held that a private suit against

a school district under Title IX may not be “based on

principles of respondeat superior or constructive notice,

i.e., without actual notice to a school district official.”

524 U.S. at 285. “[A] damages remedy will not lie

under Title IX unless an official who at a minimum

has authority to address the alleged discrimination

and to institute corrective measures on the recipient’s

behalf has actual knowledge of discrimination in the

recipient’s programs and fails adequately to respond.”

Id. at 290 (emphasis added). This requirement of

“actual knowledge” comports with Title IX’s design to

allow “an opportunity for voluntary compliance” before

liability is imposed. Id. at 289–290. The Court also

held that “the response must amount to deliberate

indifference to discrimination.” Id. at 290. That standard ensures that the recipient is liable in damages only

“for its own official decision.” Ibid.

In Davis, the Court extended Gebser’s holding to a

funding recipient’s response to allegations of studenton-student harassment. That case involved a “prolonged

pattern of sexual harassment” by one fifth-grade student against another. 526 U.S. at 633. Despite being

aware of the ongoing harassment, school officials

“made no effort whatsoever either to investigate or to

put an end to the harassment,” allowing it to continue

for months. Id. at 653–654. The Court held that

funding recipients could be liable for such known

harassment, but “only where they are deliberately

indifferent to sexual harassment, of which they have

actual knowledge, that is so severe, pervasive, and

objectively offensive that it can be said to deprive the

victims of access to the educational opportunities or

benefits provided by the school.” Id. at 650.

The Court explained that a school’s deliberate indifference to “known peer sexual harassment,” id. at 653,

must “ ‘subject[]’ its students to harassment,” id. at

644 (quoting § 1681(a)). This means that the school’s

response must itself either “ ‘cause [students] to undergo’

harassment or ‘make them liable or vulnerable’ to it,”

ibid. (quoting dictionary definitions of “subject”). This

standard ensures that the school is liable only “for its

own failure to act.” Id. at 645–646.

Relatedly, the Court explained that an isolated instance

of student-on-student harassment rarely should trigger school liability. Under Title IX, harassment must

be “severe, pervasive, and objectively offensive”—i.e.,

“systemic”—to be actionable. And the Court thought it

“unlikely that Congress would have thought [a single

occurrence] sufficient to rise to this level in light of the

inevitability of student misconduct and the amount of

litigation that would be invited by entertaining claims

of official indifference to a single instance of one-onone peer harassment.” Id. at 652–653.

On behalf of four justices, Justice Kennedy’s dissenting opinion criticized the “sweeping legal duty—

divorced from agency principles—for schools to remedy

third-party discrimination against students.” Id. at 668

(Kennedy, J., dissenting). Justice Kennedy explained

why “the imposition of liability for peer sexual harass-

ment . . . conflicts with the most natural interpretation

of Title IX’s . . . limitation on school liability,” id. at

661–662, and why the new “remedial scheme . . . is

neither sensible nor faithful to Spending Clause principles,” id. at 657. In response, the Court emphasized

that the “dissent’s characterization of [the majority]

opinion [should] not mislead courts to impose more

sweeping liability than we read Title IX to require.” Id.

at 652 (majority opinion).

II. Factual background

This case arises from a sexual encounter between a

junior and senior at Oakton High School, “Jane Doe”

and “Jack Smith,” on a school-sponsored band trip to

a music festival in Indianapolis. App.3a. During a

night-time bus ride, seated next to each other and

covered by Jane’s blanket, Jane and Jack engaged in

mutual sexual touching for 15–20 minutes. CA.JA1260–61.1 Jane stroked Jack’s penis until he ejaculated,

while Jack had his hand under Jane’s shirt and down

her pants. CA.JA-1267–69. Neither Jane nor Jack

spoke during the encounter. CA.JA-1272. Although

they were surrounded by about sixty friends, fellow

band members, and chaperones on the bus, it was dark

and there were no eyewitnesses. CA.JA-1745.

School administrators learned from another student

during the trip that Jane and Jack had engaged in

sexual activity on the bus and that Jane was upset to

learn afterward that Jack had a girlfriend. CA.JA849–50, 940. Sexual activity on school-sponsored trips

is a disciplinable offense, but administrators determined it would be best to handle the matter when the

References to CA.JA-___ are to pages in the Joint Appendix,

Doe v. Fairfax County School Board, No. 19-2203 (4th Cir. Feb. 7,

2020), ECF No. 19.

students returned to school. They monitored Jane during

the trip and observed her participating and engaging

fully in all activities. CA.JA-916–22, 1017–19.

Upon the students’ return to school after the trip,

Assistant Principal Jennifer Hogan and other school

officials interviewed Jane, Jack, and several other

students. App.5a–6a. What the officials heard left

them convinced that Jane and Jack’s interaction was

consensual. App.6a. While accepting Jane’s explanation that she participated in the activity because she

“didn’t know how” not to, CA.JA-1259, they concluded

that she had willingly participated in the extended,

mutual sexual touching, CA.JA-1223. Hogan concluded

that discipline of the students was not warranted in

these circumstances. CA.JA-1031.

Jane’s mother, however, insisted that Jack’s touching of Jane constituted an assault and that he should

be disciplined. App.6a; CA.JA-1299. The school disagreed,

given the understanding it formed after speaking

directly with the students, but it nonetheless granted

Jane numerous and significant accommodations she

requested. App.7a; CA.JA-2525. She was given extra

time to complete assignments, CA.JA-2080–83; excused

from taking a final exam in her most difficult subject,

CA.JA-1643–44; and permitted to sit out of band class,

and then given a seat where she would not be able to

see Jack. CA.JA-1123–25. Except for remaining in her

band class until he graduated two months later, Jack

had no further contact with Jane. CA.JA-1773. It is

undisputed that Jane suffered no further harassment.

III. Proceedings below

A. District court proceedings

Jane did not file an administrative complaint over

the incident, and was incredulous at the suggestion

that she might press criminal charges against Jack.

CA.JA-1280–81. A year later, however, Jane sued the

School Board under Title IX, alleging that Jack did

sexually assault her on the bus and that school

officials had been deliberately indifferent in response.

After a two-week trial, involving more than two

dozen witnesses and conflicting testimony, the jury

returned a verdict for the School Board. The special

verdict form, which Jane had proposed, consisted of

five specific questions for the jury to answer sequentially to determine the School Board’s liability, if any.

App.81a. The jury first found that Jack had subjected

Jane to sexual harassment and, next, that the single

incident was so severe, pervasive, and objectively

offensive that it denied her equal access to educational

opportunities. App.81a–82a. On the third question,

however, the jury found that school officials did not

have “actual knowledge” of the alleged harassment.

App.82a. Accordingly, the jury did not reach the

questions whether the School Board acted with

deliberate indifference and whether damages should

be awarded. App.82a–83a; App.7a.

The district court denied Jane’s motion for a new

trial, App.85a, entered judgment for the School Board,

App.90a, and denied Jane’s motion for reconsideration, App.91a.

B. Fourth Circuit appeal

In a published decision, a divided panel of the

Fourth Circuit reversed and remanded the case for a

new trial.

The majority, in an opinion by Judge Wynn, held

that “Title IX liability based on student-on-student

harassment is not necessarily limited to cases where

such harassment ‘occur[s] after [the school] receives

notice’ and is ‘caused’ by the school’s own post-notice

conduct.” App.29a. Acknowledging a significant circuit

split over the issue, the majority chose the minority

view, “agree[ing] with the First and Eleventh Circuits.”

App.30a. It held that the school’s response need not be

followed by harassment. Instead, “a school may be

held liable under Title IX if its response to a single

incident of severe sexual harassment, or the lack

thereof, was clearly unreasonable and thereby made

the plaintiff more vulnerable to future harassment or

further contributed to the deprivation of the plaintiff’s

access to educational opportunities.” App.31a.

The majority also concluded that Davis’s “actual

knowledge” requirement is satisfied if a school “receives

a report that can objectively be construed as alleging

sexual harassment.” App.13a (emphasis added). In its

view, it is irrelevant “whether school officials subjectively understood the report to allege sexual harassment

or whether they believed the alleged harassment actually

occurred.” App.8a (emphases added). The majority

acknowledged that at least one circuit disagrees.

App.16a (citing Shrum ex rel. Kelly v. Kluck, 249 F.3d

773, 870, 782 (8th Cir. 2001)). It also rejected several

alternative grounds for affirmance. App.23a–36a.

Judge Niemeyer dissented. He would have affirmed

on the ground that “the school had to receive knowledge

of conduct such that the school’s indifference to the

known conduct actually caused the harassment that

denied the student the benefits of the educational programs or activities of the school.” App.40a (Niemeyer,

J., dissenting). Judge Niemeyer described this requirement as “foundational, as a school is liable under

Title IX only when the school’s own deliberate conduct

amounts to or causes sex discrimination.” Ibid. The

incident here “was a one-time act of sexual misconduct,” which “the school learned of . . . only after the

fact, with no opportunity to prevent it,” so “no school

conduct, or lack thereof, caused any sexual harassment.” App.42a–43a.

The School Board filed a petition for rehearing

en banc, which was denied by a 9–6 vote. App.44–45a.

The denial order drew three separate and lengthy

opinions, one of which expressly “hope[d] each of the[]

opinions will assist the Supreme Court when it ultimately resolves an issue of great importance to school

districts across our country.” App.61a n.1 (Wilkinson,

J., dissenting from denial of rehearing en banc).

Concurring in the denial of rehearing en banc, Judge

Wynn restated the panel majority’s position that

liability may be imposed even if the funding recipient’s

actions cause no actionable harassment, including “where

its deliberate indifference . . . makes [students] liable

or vulnerable to harassment.” App.56a (Wynn, J., concurring in denial of rehearing en banc) (punctuation

altered and emphasis omitted). And “a student can be

made vulnerable to further harassment after an initial

incident without actually undergoing additional harassment.” Ibid. (emphasis omitted).

Judges Wilkinson and Niemeyer each disagreed and

filed separate dissents. Focusing on Pennhurst’s clearnotice requirement, Judge Wilkinson noted that Title

IX “does not even hint that a school could be held liable

for peer-on-peer harassment about which it was only

notified after-the-fact.” App.67a (Wilkinson, J., dissenting from denial of rehearing en banc) (citation

omitted). In his view, the panel majority had “imposed

the prospect of liability on the School Board due to

harassment that occurred without any warning signs

and which the School Board had no means of preventing.” App.64a. Judge Niemeyer similarly concluded

that “the panel majority [had] step[ped] clearly beyond

the limits of Title IX liability.” App.75a (Niemeyer, J.,

dissenting from denial of rehearing en banc). He

reiterated his original dissenting view, explaining that

the panel had “str[uck] out on a new course for school

liability under Title IX, imposing what sounds very

much like strict liability, which the Supreme Court

has rejected.” App.78a.

The merits panel then denied, by the same 2–1 vote,

the School Board’s motion to stay the mandate

pending the filing of this petition. App.79a–80a.

REASONS FOR GRANTING THE PETITION

I. The Fourth Circuit’s holding that a funding recipient’s conduct need not cause

actionable harassment conflicts with this

Court’s decision in Davis and further

entrenches an acknowledged circuit split.

In conflict with this Court’s decision in Davis and

deepening an existing circuit split, the Fourth Circuit

has expanded Title IX liability for funding recipients

to situations involving student-on-student harassment where the recipient itself did not cause the

student to suffer actionable harassment. While several

courts of appeals have properly followed Davis’s causation requirement, the Fourth Circuit joined those

holding the minority and more expansive view of Title

IX liability. This Court should grant certiorari to

reaffirm its holding in Davis, resolve this undisputed

circuit split, and restore nationwide uniformity on this

critical issue.

A. The Fourth Circuit departed from this

Court’s instruction in Davis that liability is triggered only where the funding

recipient’s response itself leads to

harassment.

In Davis, this Court established an intentionally

“high standard” for a funding recipient’s liability in a

case of student-on-student harassment. 526 U.S. at

643. Acknowledging the Spending Clause requirement

that Title IX recipients must have clear notice of any

potential liability, the Court read the statutory text to

“confine[] the scope of prohibited conduct based on the

recipient’s degree of control.” Id. at 644. Specifically, a

school system “may not be liable for damages unless

its deliberate indifference ‘subjects’ its students to

harassment.” Ibid. (quoting 20 U.S.C. § 1681(a)).

That means, this Court explained, that the funding

recipient’s response to alleged harassment must itself

“ ‘cause students to undergo’ harassment or ‘make

them liable or vulnerable’ to it.” Id. at 645.

The Fourth Circuit below erroneously seized on this

Court’s use of the phrase “make them . . . vulnerable”

to impose liability on a funding recipient even where

no actionable harassment ever follows the recipient’s

actions. Contrary to the Fourth Circuit’s interpretation, Davis’s reference to “ ‘caus[ing] students to undergo’

harassment or ‘mak[ing] them liable or vulnerable’ to

it” merely identifies “two possible ways that the

school’s ‘clearly unreasonable’ response could lead to

further harassment.” Kollaritsch v. Mich. State Univ.

Bd. of Trs., 944 F.3d 613, 623 (6th Cir. 2019), cert.

denied, 141 S. Ct. 554 (2020). One way is by an act of

“commission (directly causing further harassment)”;

the other is by an act of “omission (creating vulnerability that leads to further harassment).” Ibid. (internal

citation omitted). In other words, Davis did not mean

that a funding recipient could be held liable merely

because a student was left “vulnerable” to harassment

that never occurred.

The Fourth Circuit’s interpretation not only misunderstands Davis but ignores other holdings in Gebser

and Davis—holdings rooted both in the statutory language and the Spending Clause. Those cases set forth

that “only the school’s own conduct can justify liability”

and that “the school must have ‘actual knowledge of

the [sexual] conduct’ and also ‘have an opportunity to

take action to end the harassment or limit further

harassment.’ ” App.40a–41a (Niemeyer, J., dissenting)

(quoting Gebser, 524 U.S. at 289). If funding recipients

can be held liable regardless of whether their conduct

actually leads to or ends harassment, these holdings

have no meaning. As Judge Niemeyer observed, the

Fourth Circuit’s approach “strikes out on a new

course for school liability under Title IX, imposing

what sounds very much like strict liability, which the

Supreme Court has rejected.” App.78a (Niemeyer, J.,

dissenting from denial of rehearing en banc).

The Fourth Circuit’s reading also loses sight of the

statutory language that Davis was explicating. The

statute prevents anyone from being “subjected to discrimination under any education program or activity

receiving Federal financial assistance.” 20 U.S.C.

§ 1681. The operative word is “subjected.” And one

“wouldn’t say that the school had ‘subjected’ its students to harassment if the students never experienced

any harassment as a result of the school’s conduct.”

Kollaritsch, 944 F.3d at 628 (Thapar, J., concurring).

Nor does any other language in the statute support

the Fourth Circuit’s interpretation of Davis—much

less satisfy the Spending Clause’s requirement of clear

notice. Title IX’s language “ ‘does not even hint’ that a

school could be held liable for peer-on-peer harassment about which it was only notified after-the-fact.”

App.67a (Wilkinson, J., dissenting from denial of

rehearing en banc) (citing Arlington Cent. Sch. Dist.

Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006)).

Rather, the “prospect of liability is [being] imposed on

districts wholly in the dark about the harassing

incidents and in the absence of any causation of the

injury.” App.74a. This dramatic expansion of liability

“blindsides” school districts. App.67a. (citations omitted).

Indeed, the “very fact that circuit courts are so deeply

split on whether Title IX and Supreme Court precedent

can be read to impose liability in these circumstances,”

as discussed below, “proves that this alleged condition

on Title IX funding was not clearly and unambiguously stated.” App.69a.

B. The courts of appeals are sharply

divided on this question.

As the Fourth Circuit readily acknowledged, the

lower courts are indisputably and deeply “divided on

th[is] issue of whether a single, isolated incident of

pre-notice harassment may be sufficient to trigger

Title IX liability.” App.29a n.12.

In published decisions, the Sixth, Eighth, Ninth,

and Tenth Circuits have all answered the question

in the negative. See Kollaritsch, 944 F.3d 613 (6th

Cir.); Shank v. Carleton Coll., 993 F.3d 567, 576 (8th

Cir. 2021) (following K.T. v. Culver-Stockton Coll., 865

F.3d 1054, 1058 (8th Cir. 2017)); Escue v. N. Okla.

Coll., 450 F.3d 1146, 1155–56 (10th Cir. 2006); Reese

v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th

Cir. 2000).

The Fourth Circuit instead sided with published

decisions of the First and Eleventh Circuits. See

Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165,

172–73 (1st Cir. 2007), rev’d and remanded on other

grounds, 555 U.S. 246 (2009); Williams v. Bd. of

Regents of the Univ. Sys. of Ga., 477 F.3d 1282 (11th

Cir. 2007). This intractable conflict among more than

half the circuits calls out for resolution by this Court.

In Kollaritsch, the Sixth Circuit held that a “single

assault—particularly before any notice or response—

does not state a claim under Davis.” 944 F.3d at 624.

The “critical point” for a school’s liability under Title

IX is “that the [school’s] response must bring about or

fail to protect against the further harassment.” Id. at

622. Accordingly, a plaintiff must show “an incident

of actionable sexual harassment, the school’s actual

knowledge of it, some further incident of actionable

sexual harassment, that the further actionable harassment would not have happened but for the objective

reasonableness (deliberate indifference) of the school’s

response, and that the Title IX injury is attributable

to the post-actual-knowledge further harassment.” Id.

at 623–624 (emphasis added).

In Shank, the Eighth Circuit very recently reaffirmed

its agreement. Following a prior holding, the Eighth

Circuit explained: A “Title IX plaintiff must demonstrate a ‘causal nexus’ between the college’s conduct

and the student’s experience of sexual harassment.

Linking the college’s actions or inactions to emotional

trauma the plaintiff experienced in the wake of sexual

harassment or assault, even if proven, is not enough.”

993 F.3d at 576 (quoting K.T., 865 F.3d at 1058)

(emphasis added). As the Eighth Circuit had noted

in its previous case, “the actual knowledge element

requires schools to have more than after-thefact notice of a single instance in which the plaintiff

experienced sexual assault.” K.T., 865 F.3d at 1058

(noting that the school’s response “cannot be characterized as deliberate indifference that caused the

assault”).

Finally, the Ninth and Tenth Circuits also have

construed Davis to require post-notice harassment

caused by the school’s response. In Reese, the Ninth

Circuit found no liability where there was “no evidence

that any harassment occurred after the school district

learned of the plaintiffs’ allegations.” 208 F.3d at 740.

Without such post-notice harassment, “under Davis,

the school district cannot be deemed to have ‘subjected’

the plaintiffs to the harassment.” Ibid. Likewise, the

Tenth Circuit in Escue read Davis to require “further

sexual harassment . . . as a result of [the school’s]

deliberate indifference.” 450 F.3d at 1155 (emphasis

added). The Tenth Circuit found it significant that,

unlike a prior case where harassment had continued

over a course of years, the plaintiff had failed to allege

that the school’s “response to her allegations was ineffective such that she was further harassed.” Id. at 1156.

In contrast, at least three courts of appeals, counting

the Fourth Circuit’s decision below, have now held

that a funding recipient need not cause further actionable harassment to trigger Title IX liability. App.29a

n.12 (citing decisions by the First and Eleventh Circuits).

Though acknowledging that the “waters are murk[y],”

the First Circuit in Fitzgerald construed Davis to

allow liability to attach where a funding recipient

leaves a student “vulnerable” to harassment, even “if

that harassment never occurs,” such as where a

plaintiff “allege[s] only a single incident of pre-notice

harassment.” 504 F.3d at 172. According to the First

Circuit, a “single instance of peer-on-peer harassment

theoretically might form a basis for Title IX liability if

that incident were vile enough and the institution’s

response, after learning of it, unreasonable enough to

have the combined systemic effect of denying access to

a scholastic program or activity.” Id. at 172–173.

In Williams, the Eleventh Circuit likewise read

Davis to allow liability against a school for leaving a

plaintiff vulnerable to future harassment. Although

Williams withdrew from school shortly after being sexually assaulted and no further harassment occurred,

the court concluded that the school “continued to

subject her to discrimination” by failing “to take any

precautions that would prevent future attacks from

[the perpetrators] or like-minded hooligans should

Williams have decided to return.” 477 F.3d at 1297.2

Thus, the Fourth Circuit’s decision further entrenches

the “deep[] split on whether Title IX and Supreme

Court precedent can be read to impose liability in

these circumstances.” App.69a (Wilkinson, J., dissenting from denial of rehearing en banc). For years, this

In addition, although the panel majority did not claim it on

its side of the circuit split, the Tenth Circuit issued a published

decision that is difficult to reconcile with its earlier decision in

Escue, discussed above. In Farmer v. Kansas State University,

the Tenth Circuit found it sufficient that, while plaintiffs were

not subjected to further harassment, they had “pled that KSU’s

deliberate indifference to their reports of rape made them vulnerable to harassment.” 918 F.3d 1094, 1104–1105 (10th Cir. 2019).

See App.53a–54a (Wynn, J., concurring in denial of rehearing en

banc) (citing Farmer). If this Court does not settle this issue

nationwide, the en banc Tenth Circuit may have to resolve that

intra-circuit split.

divide has been noted both by federal courts, see, e.g.,

Kollaritsch, 944 F.3d at 627 (Thapar, J., concurring)

(observing that “the question has divided our sister

circuits”), and critical commentators.3 The Court should

take this opportunity to resolve it.

II. The Fourth Circuit’s holding that an

objective standard applies to the “actual

knowledge” requirement conflicts with this

Court’s precedents and those of several

other circuits.

The Fourth Circuit expanded the scope of funding

recipients’ liability in a second way that also warrants

this Court’s attention. Its ruling that the actualknowledge requirement of a private Title IX claim is

met by an objective analysis, not a subjective one,

App.8a, guts Davis’s deliberate-indifference standard

and contravenes the decisions of several other courts

of appeals. The Court should grant certiorari to resolve

these conflicts too.

See, e.g., Lauren E. Groth, et al., Giving Davis Its Due: Why

the Tenth Circuit has the Winning Approach in Title IX’s Deliberate Indifference Controversy, 98 DENV. L. REV. 307, 314 (2021)

(noting “lower courts have adopted divergent interpretations of

[Davis’s] standard, ultimately creating a conflict over whether

Title IX requires a student to undergo additional harassment”);

Hannah Brenner, A Title IX Conundrum: Are Campus Visitors

Protected from Sexual Assault, 104 IOWA L. REV. 93, 119 (2018)

(referring to the “wide jurisdictional split [that] will likely at

some point be resolved by the Supreme Court”); Zachary Cormier,

Is Vulnerability Enough? Analyzing the Jurisdictional Divide

on the Requirement for Post-Notice Harassment in Title IX

Litigation, 29 YALE J.L. & FEMINISM 1, 3 (2017) (noting a

“jurisdictional divide has arisen at a critical point in the evolution

of Title IX litigation”).

A. The Fourth Circuit’s “actual knowledge” analysis conflicts with this

Court’s precedents.

The Fourth Circuit contravened Gebser, Davis, and

other precedents of this Court when it concluded

“that a school’s receipt of a report that can objectively

be taken to allege sexual harassment is sufficient to

establish actual notice or knowledge under Title IX—

regardless of whether school officials subjectively understood the report to allege sexual harassment or whether

they believed the alleged harassment actually occurred.”

App.8a (emphases added).

In Gebser, the Court refused “to impose liability

under what amounted to a negligence standard—

holding the [school] district liable for its failure to

react to teacher-student harassment of which it knew

or should have known.” Davis, 526 U.S. at 640. “Rather,”

the Court held, a school district is liable “only where

the district itself intentionally acted in clear violation

of Title IX by remaining deliberately indifferent to acts

of teacher-student harassment of which it had actual

knowledge.” Id. at 642 (emphases added). “[T]o permit

a damages recovery against a school district . . . based

on principles of . . . constructive notice, i.e., without

actual notice,” would “ ‘frustrate the purposes’ of Title

IX.” Gebser, 526 U.S. at 285. The Court explained that

it “would be unsound . . . for a statute’s express system of enforcement to require notice to the recipient and

an opportunity to come into voluntary compliance while

a judicially implied system of enforcement permits

substantial liability without regard to the recipient’s

knowledge or its corrective actions upon receiving

notice.” Id. at 289.

In Davis, the Court reiterated and applied those

same principles to cases of peer-on-peer harassment.

A funding recipient must “respond to known peer

harassment in a manner that is not clearly unreasonable.” 526 U.S. at 649; see also id. at 647 (funding

recipient is liable only when “deliberately indifferent

to known acts of student-on-student sexual harassment”); id. at 653 (referring to the “general principle

that Title IX prohibits official indifference to known

peer sexual harassment”).

Here, the Fourth Circuit’s “objective” actual-knowledge standard is no different from the negligence

standard that the Supreme Court firmly rejected in

Gebser and Davis. Under the Fourth Circuit’s test,

the actual-knowledge element would be established

whenever a responsible school official should have

known that the student was the victim of sexual

harassment—even if the official in good faith sincerely

believed no harassment had occurred.

Moreover, this Court clearly identified an “objective”

standard when it meant for one to apply. For example,

in explaining whether the underlying harassment is

even actionable under Title IX, this Court held that

the harassment must be “so severe, pervasive, and

objectively offensive that it can be said to deprive the

victims of access to the educational opportunities or

benefits provided by the school.” Id. at 650 (emphasis

added).

Perhaps most important, the Fourth Circuit’s approach

cannot be squared with the concept of deliberate

indifference. The implied right of action for money

damages is available only for “intentional conduct”:

“ ‘an official decision by the recipient not to remedy [a]

violation.’ ” Id. at 642 (quoting Gebser, 524 U.S. at

290). Actual knowledge and deliberate indifference work

in tandem to capture only that level of culpability,

focusing on what school officials did in response to

what they subjectively believed to be true. But if

“actual knowledge” is instead understood objectively—

i.e., what school officials should have known or should

have believed—it is difficult to say that the officials

necessarily acted intentionally or deliberately. Put

simply, a should-have-known test is incompatible

with the requirement that only intentional discrimination is actionable under Title IX.

The necessity of subjective awareness to the concept

of deliberate indifference is well established. In Eighth

Amendment cases involving the risk of harm to

prisoners, the Court has likewise rejected “an objective

test for deliberate indifference.” Farmer v. Brennan,

511 U.S. 825, 837 (1994). Rather, the Court has held

that a prison official is deliberately indifferent only if

two prongs are satisfied: the “official must both be

aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he

must also draw the inference.” Ibid. (emphasis added).

By the same reasoning, a school district does not act

with actual knowledge of the danger to the student

when the school official either (1) “did not know of the

underlying facts” and was “therefore unaware of a

danger”; or (2) “knew the underlying facts but believed

(albeit unsoundly) that the risk to which the facts gave

rise was insubstantial or nonexistent.” Id. at 843–844.

Finally, the Fourth Circuit’s objective approach to

“actual knowledge” is also at odds with the meaning

of “actual knowledge” that this Court has adopted in

other contexts. In a recent ERISA case, the Supreme

Court held that a person who received written disclosures that he did “not read or cannot recall reading”

lacked “actual knowledge” of their content. Intel Corp.

Inv. Policy Comm. v. Sulyma, 140 S. Ct. 768, 773

(2020). The Court explained that the phrase “actual

knowledge” has a “plain meaning” that requires subjective

awareness. Id. at 776. “[I]f a [person] is not aware of a

fact, he does not have ‘actual knowledge’ of that fact

however close at hand the fact might be; rather, he

“must in fact have become aware of that information.”

Id. at 777. The word “actual” is critical. It requires

“[r]eal knowledge as distinguished from presumed

knowledge or knowledge imputed to one.” Id. at 776.

The Fourth Circuit’s decision below is premised in

large part on its erroneous conflation of “notice” with

“knowledge.” Contending that this Court in “Gebser

used the terms ‘actual notice’ and ‘actual knowledge’

interchangeably,” the Fourth Circuit concluded that

“ ‘notice[]’ is what the Court really meant.” App.13–

14a. And so while “knowledge” might require the

“[s]ubjective condition of understanding or believing in

the existence of that thing,” that is not true of “notice,”

which requires only being “ ‘alerted’ to the ‘possibility’

of sexual harassment occurring.” App.15a.

This semantic sleight of hand cannot be squared

with this Court’s repeated emphasis—in both Gebser

and Davis—on personal knowledge. In Davis particularly, this Court focused on a school’s response to

“known acts of harassment,” 526 U.S. at 633, 643,

“known acts of sexual harassment,” id. at 641, 644,

“known student-on-student harassment,” id. at 641,

“known acts of student-on-student sexual harassment,”

id. at 647, “known acts of peer sexual harassment,” id.

at 648, “known peer harassment,” id. at 649, “known

peer sexual harassment,” id. at 653, “known harassment,” id. at 644, and “known circumstances,” id. at

648, 649.

The Fourth Circuit also needlessly feared that a

subjective standard would undermine Title IX by

letting school officials “argu[e] that they did not

know that the report described sexual harassment.”

App.17a. This Court dispelled that fear in Sulyma,

explaining that “actual knowledge” could be proved not

only from the witness’s own testimony, but “through

‘inference from circumstantial evidence,’ ” 140 S. Ct. at

779 (quoting Farmer, 511 U.S. at 842), as well as

through “evidence of ‘willful blindness,’ ” ibid. (citation

omitted). And there was no such willful blindness on

the part of school administrators here, where Jane

herself conceded it was “a long time” before even she

began to consider her encounter with Jack to have

been a sexual assault. CA.JA-1863–64.

Because it squarely conflicts with this Court’s precedents, the Fourth Circuit’s decision warrants review.

B. The Fourth Circuit’s decision conflicts

with the decisions of other circuits.

Beyond departing from this Court’s precedents, the

Fourth Circuit’s incorrect actual-knowledge ruling

also openly splits from several of its sister circuits. In

contrast to the Fourth Circuit, three courts of appeals

apply a subjective standard to the actual-knowledge

requirement. See Doe v. St. Francis Sch. Dist., 694

F.3d 869, 871–872 (7th Cir. 2012); Shrum ex rel. Kelly

v. Kluck, 249 F.3d 773, 782 (8th Cir. 2001); Rosa H. v.

San Elizario Indep. Sch. Dist., 106 F.3d 648, 658–659

(5th Cir. 1997). The decision below warrants review for

this reason, as well.

The Eighth Circuit’s decision in Shrum is the only

contrary decision that the panel majority below acknowledged. App.16a. The court there found that school

officials lacked “actual knowledge” of a teacher’s

“sexual misconduct” where, despite rumors of misconduct, “the police and the school investigations were

inconclusive.” 249 F.3d at 782. Because officials

were “aware of rumors, investigations, and student

statements, but did not possess any conclusive proof

that [the teacher] actually molested students,” they

“did not have any actual knowledge.” Id. at 780.

Two other appeals courts—not acknowledged by the

Fourth Circuit—agree. In St. Francis, the Seventh

Circuit held that school officials lacked “actual knowledge” where they heard suspicions voiced by others

about an inappropriate relationship between a teacher

and her student but did not actually know about

the relationship. As the court explained in an opinion

by Judge Posner, “to know that someone suspects

something is not to know the something.” 694 F.3d at

872. Directly contrary to what the panel majority did

below, Judge Posner warned against using “actual

notice” instead of “actual knowledge”—terms that “are

not necessarily synonyms.” Id. at 871.4

In Rosa H., the Fifth Circuit was guided by this

Court’s adoption of a “subjective standard” in its

Eighth Amendment deliberate-indifference jurisprudence, 106 F.3d at 658, as discussed above. “Just as a

prison official has not punished an inmate unless he

actually knows of a danger to the inmate and chooses

not to alleviate the danger,” the Fifth Circuit reasoned,

“a school district has not sexually harassed a student

unless it knows of a danger of harassment and chooses

not to alleviate that danger.” Id. at 659. The court

observed that “[a]ny lower standard would veer in

the direction of an objective test, which is necessarily

Actual knowledge requires “conscious” awareness and

disregard, ibid., whereas “to put the School District on notice of

misconduct . . . denotes merely knowledge that would cause a

reasonable person to investigate further,” id. at 872 (quotations

omitted). That standard, which is akin to “inquiry notice,” is

insufficient to trigger Title IX liability. Ibid.

‘redolent with negligence and its measures.’ ” Ibid.

(quoting Hare v. City of Corinth, 74 F.3d 633, 650 (5th

Cir. 1996) (en banc)).

For its part, the Fourth Circuit below claimed “nearly

unanimous” support from other courts of appeals.

App.16a (citing cases). That proposition does not hold

up to scrutiny.5 But even if some cases indeed align

with the Fourth Circuit, that fact would only

underscore the need for this Court’s review.

III. This case raises recurring issues of

exceptional importance to school districts

across the country.

This case indisputably presents “important legal

issue[s] that will implicate educational institutions

across the country.” App.78a (Niemeyer, J., dissenting

from denial of rehearing en banc). The Fourth Circuit’s

expansion of Title IX liability is important not only to

the School Board—which operates one of the nation’s

largest school systems—but also to the approximately

17,600 local school districts and more than 5,000

postsecondary institutions in the United States.6

Although the Court intentionally imposed a high

standard in Davis to guard against the imposition of

None of the cited cases discusses whether the actual-knowledge standard is objective or subjective. The word “subjective”

appears in only one of the ten cases cited by the majority—and in

an entirely different context. See Papelino v. Albany Coll. of

Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011) (stating

that a hostile-education-environment Title IX claim requires both

that the victim “subjectively perceived the environment to be

hostile” and that “the environment objectively was hostile or

abusive”).

U.S. Dep’t of Educ., Office for Civil Rights, Title IX and Sex

Discrimination (rev. Aug. 2021), https://www2.ed.gov/about/offi

ces/list/ocr/docs/tix_dis.html.

“sweeping liability,” 526 U.S. at 652, that safeguard is

undermined by decisions like that below.

Unsurprisingly, the Fourth Circuit’s rulings raise

many of the same concerns that troubled the four

dissenting justices in Davis—concerns that underscore

the need for this Court’s review.

One obvious concern is the “potential costs to our

schools” resulting from the “avalanche of liability now

set in motion.” Davis, 526 U.S. at 657 (Kennedy, J.,

dissenting). The majority in Davis acknowledged the

dissenting justices’ worry about the “inevitability of

student misconduct”—and sought to preemptively

close the door on the staggering “amount of litigation

that would be invited by entertaining claims of official

indifference to a single instance of one-on-one peer

harassment.” Id. at 653. But decisions like the Fourth

Circuit’s below push that door wide open, giving “litigative potential [to] the myriad individual incidents that

take place in the nation’s school systems almost every

day.” App.66a (Wilkinson, J., dissenting from denial of

rehearing en banc).

If the decision below stands, schools in the Fourth

Circuit face an endless stream of litigation. “From now

on, every peer-on-peer incident of which a school board

received no notice will be open to a ‘response suit’

designed to probe its aftermath.” App.65a.7 Moreover,

the threat of such suits could linger, detected or not,

for many years—long after a school could “come into

voluntary compliance.” Gebser, 524 U.S. at 290. The

“only certainty” is “that scarce resources will be

Cf. App.66a (predicting “a deluge of other lawsuits”). See also

Cormier, supra, at 4 (“Clearly, the potential volume of litigation

under Title IX is enormous if . . . institutions can be held liable

based on the mere potential for future harassment.”).

diverted from educating our children.” Davis, 526 U.S.

at 657 (Kennedy, J., dissenting). Indeed, “an award of

damages in a particular case might well exceed a

recipient’s level of federal funding.” Gebser, 524 U.S.

at 290.

Worse still are the practical consequences that

increased liability will wreak in the schools. The

Fourth Circuit’s expansion of Title IX liability runs

headlong into “the practical realities of responding to

student behavior, realities that Congress could not

have meant to be ignored.” Davis, 526 U.S. at 653. In

fact, the “practical obstacles schools encounter in ensuring that thousands of immature students conform

their conduct to acceptable norms may be even

more significant than the legal obstacles.” Id. at 666.

Schools already face immense pressure from parents

to reflexively punish students based on mere allegations. The Fourth Circuit’s rulings only increase the

incentive “to expel first and to ask questions later.”

Foster v. Bd. of Regents, 952 F.3d 765, 794 (6th Cir.)

(Sutton, J., dissenting), reh’g en banc granted, 958

F.3d 540, on reh’g en banc, 982 F.3d 960 (6th Cir.

2020). But it should not be forgotten that school systems

“ha[ve] obligations not only to the accuser but also to

the accused.” Fitzgerald, 504 F.3d at 174. The Fourth

Circuit’s decision intensifies the dilemma constantly

confronting school officials, under which “the same school

loses coming and going over the same incident—by

insufficiently protecting the rights of the victim in one

case and by insufficiently protecting the rights of the

accused in the other.” Foster, 952 F.3d at 794 (Sutton,

J., dissenting).

Those practical concerns make this case especially

important to primary and secondary institutions.

While colleges, universities, and other post-secondary

institutions have student populations that, on the

whole, are more mature, self-controlled, and accountable, primary and secondary schools face special

challenges that make the further expansion of liability

inappropriate. See Davis, 526 U.S. at 667 (Kennedy,

J., dissenting) (acknowledging “the distinction between

elementary and secondary schools, on the one hand,

and universities on the other”).

The psychological and developmental immaturity of

younger students, especially, poses unique challenges.

Children “regularly interact in a manner that would

be unacceptable among adults.” Id. at 651 (majority

opinion). And the communicative limitations of children can complicate school officials’ efforts not only to

understand the nature and facts behind a reported

incident, but also to ensure that expectations have

been communicated and to police future behavior.

School officials must be able to rely on their training,

expertise, and on-the-ground knowledge to evaluate

each situation and assess what remedial response

would serve the best interests of the children involved,

without fear of being second-guessed under a “shouldhave-known” standard. The Fourth Circuit’s approach

throws these nuanced considerations out the window,

ignoring warnings that courts should be “sensitive

to the effects on education of . . . heavy-handed

administrative intrusion required by judges interpreting Title IX.” St. Francis, 694 F.3d at 873 (Posner, J.).

The “high burden of Davis” is intended precisely to

“ensure[ that] school districts are not financially

crippled merely because immature kids occasionally

engage in immature sexual behavior.” Hill v. Cundiff,

797 F.3d 948, 970 (11th Cir. 2015).

The relevant differences between primary and

secondary institutions, on the one hand, and postsecondary institutions, on the other, extend far beyond

the developmental disparities between their student

populations. Local school systems typically are more

constrained than colleges and universities in their

ability to develop and implement appropriate responses

to student-on-student harassment. Among other things,

they have fewer financial and human resources, they

must involve parents, and they have meaningfully

different physical layouts. For instance, a no-contact

order between students is much more difficult to

effectuate in a K–12 setting—in which a single school

may serve an entire geographic area, students may

attend classes in a single building, specialized class

offerings may be limited, and classrooms may be

small—than in a university setting.

The compulsory nature of primary and secondary

public education is also relevant. Unlike post-secondary

institutions, public primary and secondary schools

do not choose their students and “must educate even

the most troublesome and defiant students.” Hill, 797

F.3d at 969. Moreover, those schools face greater

constraints in responding to allegations of harassment. See also Davis, 526 U.S. at 665 (Kennedy, J.,

dissenting) (noting “constraints on school disciplinary

actions” under due process and the Individuals with

Disabilities Education Act); ibid. (noting that “[s]chools

that remove a harasser from the classroom” run “the

continuing risk of Title IX suits” if they “attempt to

fulfill their continuing-education obligation by placing

the harasser in any kind of group setting”).

In sum, the issues raised in this petition are

unquestionably “of great importance to school districts

across our country,” App.61a n.1 (Wilkinson, J.,

dissenting from denial of rehearing en banc), and the

Court should take them up. When it does, it should

return the outer limit of private damages actions to

those narrow circumstances the Court envisioned in

Davis.

Doing so would not eliminate funding recipients’

liability in appropriate cases. Nor, importantly, would

doing so affect other civil and criminal remedies that

a harassment victim may have, such as “recourse

against the offending student (or his parents) under

state tort law” or through “criminal sanctions,” and

“against the school under state law.” Davis, 526 U.S.

at 684 (Kennedy, J., dissenting). See also Fitzgerald,

555 U.S. at 248 (Title IX does not preclude 42 U.S.C.

§ 1983 action alleging unconstitutional gender discrimination in schools); App.65a–66a (Wilkinson, J.,

dissenting from denial of rehearing en banc) (referencing remedies under “state law” and “the many avenues

of community correction”). Victims of harassment are

absolutely entitled to relief—but not on the bases that

the Fourth Circuit has conceived.

IV. This case is an ideal vehicle.

It is difficult to envision a better vehicle than this

case for addressing the important questions presented

and the circuit splits they have caused.

To begin with, “[t]he facts are clean and straightforward,” App.77a (Niemeyer, J., dissenting from

denial of rehearing en banc), and undisputed with

respect to the critical issues here. There is no

contention that the school’s response itself caused

further actionable harassment. Nor is there dispute

that school administrators subjectively concluded that

no harassment had occurred. Indeed, the jury found

specifically in favor of the School Board on the

question of “actual knowledge.” The Court’s resolution

of that issue in the School Board’s favor therefore

would be outcome-determinative.

In addition, the issues have been fully vetted by the

Fourth Circuit and are unlikely to be revisited. The

panel majority issued a published decision that discussed both issues and drew a lengthy dissenting

opinion. The en banc court’s decision not to rehear

the case, by a close (9–6) vote, confirms the panel’s

decision as settled law in the Fourth Circuit. And the

three accompanying opinions further discussed the

issues, with two specifically calling for this Court’s

intervention.

The Court could wait for years for a similar case

presenting these critical issues. Rather than leaving

hundreds of school systems in the Fourth Circuit

exposed to unwarranted liability, the Court should

grant certiorari and reverse.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

SONA REWARI

HUNTON ANDREWS

KURTH LLP

2200 Pennsylvania Ave., NW

Washington, DC 20037

(202) 955-1500

ELBERT LIN

Counsel of Record

TREVOR S. COX

HUNTON ANDREWS

KURTH LLP

951 East Byrd Street,

East Tower

Richmond, VA 23219

elin@HuntonAK.com

(804) 788-8200

Counsel for Petitioner

December 30, 2021

APPENDIX

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

————

No. 19-2203

————

JANE DOE,

Plaintiff-Appellant,

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellee.

NATIONAL WOMEN’S LAW CENTER; CHICAGO

ALLIANCE AGAINST SEXUAL EXPLOITATION;

CLEARINGHOUSE ON WOMEN’S ISSUES;

DESIREE ALLIANCE; FEMINIST MAJORITY

FOUNDATION; FORGE, INCORPORATED;

GENDER JUSTICE; GIRLS INC.; HUMAN RIGHTS

CAMPAIGN; IN OUR OWN VOICE: NATIONAL BLACK

WOMEN’S REPRODUCTIVE JUSTICE AGENDA;

KWH LAW CENTER FOR SOCIAL JUSTICE AND

CHANGE; LEGAL AID AT WORK; NATIONAL ASIAN

PACIFIC AMERICAN WOMEN’S FORUM; NATIONAL

ASSOCIATION OF SOCIAL WORKERS, AND ITS

VIRGINIA CHAPTER; NATIONAL CRITTENTON;

NATIONAL NETWORK TO END DOMESTIC VIOLENCE;

NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES;

NATIONAL WOMEN’S POLITICAL CAUCUS; RELIGIOUS

COALITION FOR REPRODUCTIVE CHOICE; STOP SEXUAL

ASSAULT IN SCHOOLS; WOMEN’S LAW CENTER OF

MARYLAND, INCORPORATED; TRANSGENDER

LAW CENTER; WOMEN LAWYERS ASSOCIATION

OF LOS ANGELES; WOMEN LAWYERS ON GUARD INC.;

WOMEN’S BAR ASSOCIATION OF THE STATE OF

NEW YORK; WOMEN’S LAW PROJECT,

Amici Supporting Appellant.

NATIONAL SCHOOL BOARDS ASSOCIATION;

VIRGINIA SCHOOL BOARDS ASSOCIATION;

MARYLAND ASSOCIATION OF BOARDS OF EDUCATION;

NORTH CAROLINA SCHOOL BOARDS ASSOCIATION;

SOUTH CAROLINA SCHOOL BOARD ASSOCIATION,

Amici Supporting Appellee.

————

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria.

Liam O’Grady, Senior District Judge.

(1:18−cv−00614−LO−MSN)

————

Argued: January 25, 2021

Decided: June 16, 2021

————

Before NIEMEYER, WYNN, and THACKER,

Circuit Judges.

Reversed and remanded by published opinion. Judge

Wynn wrote the opinion, in which Judge Thacker

joined. Judge Niemeyer wrote a dissenting opinion.

————

ARGUED: Alexandra Brodsky, PUBLIC JUSTICE,

PC, Washington, D.C., for Appellant. Stuart A.

Raphael, HUNTON ANDREWS KURTH LLP,

Washington, D.C., for Appellee. ON BRIEF: Linda M.

Correia, Lauren A. Khouri, CORREIA & PUTH, LLC,

Washington, D.C.; John R. Ates, ATES LAW FIRM,

PC, Towson, Maryland; Adele P. Kimmel, PUBLIC

JUSTICE, PC, Washington, D.C., for Appellant.

Trevor S. Cox, Richmond, Virginia, Sona Rewari,

HUNTON ANDREWS KURTH LLP, Washington, D.C.,

for Appellee. Emily Martin, Neena Chaudhry, Sunu

Chandy, Elizabeth Tang, NATIONAL WOMEN’S LAW

CENTER, Washington, D.C.; Emily P. Mallen, Marisa

S. West, Michele L. Aronson, SIDLEY AUSTIN LLP,

Washington, D.C., for Amici National Women’s Law

Center, et al. Robert W. Loftin, Summer L. Speight,

Heidi E. Siegmund, Richmond, Virginia, R. Craig Wood,

MCGUIREWOODS LLP, Charlottesville, Virginia, for

Amici National School Boards Association, Virginia

School Boards Association, Maryland Association of

Boards of Education, North Carolina School Boards

Association, and South Carolina School Boards

Association.

————

WYNN, Circuit Judge:

Plaintiff “Jane Doe,” a former student at Oakton

High School in Vienna, Virginia, brought this Title IX

action against the Fairfax County School Board

(“School Board”), alleging that her school’s administrators acted with deliberate indifference to reports

that she had been sexually harassed by another

Oakton student, “Jack Smith.”1 At the end of a twoweek trial, the jury ruled against Doe, based on its

finding that the School Board did not have actual

knowledge of the alleged sexual harassment. Doe

subsequently moved for a new trial, which the district

court denied. For the reasons set forth below, we

reverse that judgment and remand the case for a new

trial.

”Jane Doe” and “Jack Smith” are pseudonyms.

The following facts are undisputed except where

noted otherwise.

On March 8, 2017, Doe, a junior at Oakton High

School and a member of the school’s symphonic

band, traveled with the band by bus to Indianapolis to

perform at a music festival. During the bus trip, Doe

sat next to Smith, an older male student. Smith told

Doe that he was cold and asked her if she had a

blanket. When Doe offered her blanket to Smith, he

put it over both of their bodies.

Doe alleges that Smith then repeatedly touched

her breasts and genitals and penetrated her vagina

with his fingers despite her efforts to physically block

him, and that he also repeatedly put her hand on his

penis even after she moved it away. She testified at

trial that during this incident, she felt so “confused,”

“shocked,” and “scared” that she was “frozen in fear

the whole time.” J.A. 1712, 1800.2

Soon after arriving in Indianapolis, Doe told two

friends about the incident. They, in turn, relayed

what they had heard to school administrators, allegedly reporting that Smith had touched Doe “down her

pants and up her shirt” without her consent, “forced

her hand on his penis,” and “sexually assaulted [Doe.]”

J.A. 383–86, 419–24.

At trial, Assistant Principal Jennifer Hogan testified that before the end of the five-day band trip, she

knew that she was dealing with the “possibility” of a

Citations to “J.A. __” refer to the Joint Appendix filed by the

parties in this appeal.

“sexual assault.” J.A. 1186–87. But school officials—

including Assistant Principal Michelle Taylor, who

accompanied the band to Indianapolis—took no action

regarding these reports during the trip, and they did

not speak to either Doe or her parents about what had

happened on the bus ride.

Once the band returned from its trip, Assistant

Principal Hogan called Doe into her office for an

interview and requested that Doe provide a written

statement. Doe’s statement read: “I moved my hand

away but [Smith] moved my hand back onto his

genitals. I was so shocked and scared that I did not

know what to say or do. He then started to move his

hands towards me and I tried to block him but he

still put his hands up my shirt and down my pants.”

J.A. 2515. During this meeting, Oakton’s Safety and

Security Specialist, Wally Baranyk, asked Doe if

the sexual activity had been consensual, and Doe

responded, “I don’t think it was consensual.” J.A. 2518.

Hogan interpreted this statement as meaning that

Doe “didn’t want to be a participant” and that there

was “a lack of consent.” J.A. 1207–08.

Hogan and Baranyk then interviewed Smith, who

initially denied that he touched Doe sexually against

her will or made her touch his penis without her

consent. But later in the meeting, he changed his

story, admitting that he did in fact “grab[]” her and

touch her breasts. J.A. 1332–33. He continued to deny

that he touched Doe under her pants.

Assistant Principal Hogan also spoke with two other

band students to see if they had seen anything on the

bus. Meanwhile, school officials continued to receive

reports from other concerned members of the school

community—including both students and parents—

suggesting that Doe had been a victim of a “non-

consenting sexual act” and “sexual harassment.” J.A.

2523, 2526.

After the investigation, Hogan and Principal John

Banbury discussed “whether this was or wasn’t a

sexual assault” and ultimately concluded that “the

evidence that [they] had didn’t show that [they] could

call it a sexual assault.” J.A. 1291. They also decided

against disciplining either Doe or Smith for engaging

in sexual activity while on a school trip.

Afterwards, in a meeting between Hogan and Doe’s

parents, Doe’s mother stated that Smith’s touching

of Doe was nonconsensual and thus “a sexual assault.”

J.A. 1298–99, 1613. Hogan responded that the administration had concluded that what happened on the

bus did not amount to sexual assault.

After the band trip, Doe sought and received professional counseling for multiple weeks, and she was

diagnosed with adjustment disorder with anxiety.3

During the rest of her junior year, Doe was terrified

of seeing or being near Smith, which caused her to

go out of her way to avoid him at school and also to

refrain from fully participating in band activities. Doe

stated at trial that she felt “so uncomfortable being

“An adjustment disorder is an emotional or behavioral reaction to a stressful event or change in a person’s life” that “significantly interfere[s] with social, occupational or educational

functioning.” Johns Hopkins Med., Adjustment Disorders, https://

www.hopkinsmedicine.org/health/conditions-and-diseases/adjust

ment-disorders. Adjustment disorder with anxiety is one of the

subtypes of adjustment disorder, and its symptoms “mainly

include nervousness, worry, difficulty concentrating or remembering things, and feeling overwhelmed.” Mayo Clinic, Adjustment Disorders (Oct. 25, 2017), https://www.mayoclinic.org/

diseases-conditions/adjustment-disorders/diagnosis-treatment/d

rc-20355230.

around . . . Smith that [she] had to sit out of band

class” for a period of time, instead attending class

by sitting in a small practice room by herself. J.A.

1755. And Doe continued to find it difficult to enjoy

and fully participate in her band classes even after

Smith had graduated. Meanwhile, her parents

requested, and her teachers provided, a number of

accommodations to help Doe cope with the psychological and emotional trauma resulting from the

alleged sexual assault.

Doe brought the instant Title IX action against the

School Board in May 2018, asserting that her school

had acted with deliberate indifference to reports of

her sexual assault. The case went to trial in July 2019.

During trial, the School Board moved for judgment

as a matter of law, arguing that Doe could not prove

deliberate indifference or any deprivation of access to

educational opportunities or benefits. The district

court denied the motion.

Ultimately, the jury returned its verdict for the

School Board. 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

also found that the School Board did not have actual

knowledge of the alleged sexual harassment. Because

that finding ended Doe’s claim, the jury did not reach

the question of whether the School Board had acted

with deliberate indifference to the alleged harassment.

After the district court denied Doe’s motion for a

new trial, Doe filed a motion to reconsider, which was

also denied. She timely appealed.

II.

Doe raises several different grounds for granting

a new trial or, alternatively, vacating the district

court’s decision and remanding for reconsideration of

her motion for a new trial. But principally, she argues

that the district court erred by misconstruing what it

means for a school to have actual notice or knowledge

of alleged harassment in Title IX cases, and that a new

trial must be granted because no evidence in the record supports the jury’s verdict under the correct legal

standard.

We agree. As discussed below, we hold that a

school’s receipt of a report that can objectively be

taken to allege sexual harassment is sufficient to

establish actual notice or knowledge under Title IX—

regardless of whether school officials subjectively

understood the report to allege sexual harassment or

whether they believed the alleged harassment actually occurred.4 We further conclude that under this

standard, no evidence in the record supports the

jury’s conclusion that the School Board lacked actual

notice of Smith’s alleged sexual harassment of Doe.

Accordingly, we reverse and remand for a new trial.5

As explained below, “actual notice” and “actual knowledge”

are interchangeable terms for Title IX purposes. For stylistic

convenience, we use the term “actual notice” throughout this

opinion to refer to the requisite notice or knowledge that a

defendant school board must have in order to be held liable under

Title IX.

Doe’s other arguments on appeal also relate to actual notice.

Because we conclude that under the correct legal standard the

record evidence all but establishes that the School Board had

actual notice of the alleged sexual harassment, and because we

grant a new trial on that basis, we need not and do not address

Doe’s alternative arguments.

Title IX provides: “No person in the United States

shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected

to discrimination under any education program or

activity receiving Federal financial assistance.” 20

U.S.C. § 1681(a). To establish a Title IX claim based

on student-on-student sexual harassment, a plaintiff

must show that:

(1) they were a student at an educational

institution receiving federal funds;

(2) 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;

(3) 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

(4) the school acted with deliberate indifference to the alleged harassment.

See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,

646–52 (1999); Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274, 290–92 (1998); Jennings v. Univ. of

North Carolina, 482 F.3d 686, 695 (4th Cir. 2007) (en

banc).6

In Jennings, we set forth a nearly identical test to the one we

articulate here, based on the Supreme Court’s decisions in Davis

and Gebser. See 482 F.3d at 695, 700. We explained that a

plaintiff seeking to establish a Title IX sexual harassment claim

must show, among other things, that “the harassment was suffi-

10a

At the center of this case is the third prong—

the actual notice requirement—which the jury found

was not met. Doe argues that a school’s receipt of a

report that can objectively be understood as alleging

sexual harassment is sufficient to establish actual

notice—regardless of whether the school in fact construed such a report as one alleging sexual harassment, or whether the school believed the allegations

to be true. In contrast, the School Board contends

that such notice exists only where a school official with

corrective authority becomes subjectively aware that

the alleged sexual harassment has occurred or is

occurring. Thus, the critical issue we must decide is:

What establishes a school’s actual notice in Title IX

cases? This is a question of law subject to de novo

review. See Fonner v. Fairfax Cnty., 415 F.3d 325, 330

(4th Cir. 2005).

Although the Fourth Circuit has not explicitly ruled

on this issue, our en banc decision in Jennings v.

University of North Carolina compels us to agree

with Doe’s position—which, as explained below, is

ciently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity.” Id. at 695. This

formulation differs slightly from the language that the Supreme

Court used to articulate the same requirement in Davis—i.e., “a

plaintiff must establish sexual harassment . . . that is so severe,

pervasive, and objectively offensive[] . . . that [they are] effectively

denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. 651 (emphasis added). Because Davis, like

this case and unlike Jennings, involved student-on-student harassment, we have modified the Jennings test to more precisely

track Davis for purposes of this case. Compare Jennings, 482 F.3d

at 691, with Davis, 526 U.S. at 632–33.

11a

consistent with relevant Supreme Court precedent

and that of our sister circuits.7

In Jennings, a former student and soccer player

at the University of North Carolina at Chapel Hill

brought a Title IX claim against the university,

alleging that the school had “allow[ed] . . . the women’s

soccer coach[] to subject her to severe and pervasive

sexual harassment.” 482 F.3d at 694. She met with

a high-ranking university official responsible for dealing with Title IX grievances during her freshman year

and lodged a complaint against the coach, describing

multiple instances of sexual harassment and the hostile and abusive environment in the women’s soccer

program. See id. at 693–94, 700. The official, however,

“dismissed these concerns and suggested that [the

plaintiff] simply ‘work it out’ with [the coach].” Id. at

694. Accordingly, the university took no action on the

plaintiff’s complaint. See id. at 700.

We held in Jennings that the fact that the plaintiff

filed a complaint alleging sexual harassment with

an official with authority to address the alleged

harassment and to institute corrective measures was

“sufficient to establish that” the plaintiff had given

that official—“and[,] by extension,” the university—

”actual notice of the hostile environment created by

[the soccer coach].” Id. at 700–01; see also id. at

701 (noting as to the plaintiff’s § 1983 supervisory

liability claim against the same university official that

Although Jennings involved harassment by a coach, rather

than by a fellow student, that distinction is irrelevant to the

actual-notice inquiry. As Davis makes clear, the actual-notice

requirement adopted in Gebser—which dealt with teacher-onstudent harassment—is equally applicable in Title IX cases

involving student-on-student harassment. See Davis, 526 U.S. at

642–43, 647, 650.

12a

“[her] evidence would allow a jury to find that [the

official] had actual knowledge of [the coach’s] misconduct”). Importantly, nothing in our discussion of

actual notice indicated that the analysis turned on

whether the university official subjectively understood

that the plaintiff was making an allegation of sexual

harassment or that the alleged harassment was actually occurring. Rather, we concluded that by alleging

facts that objectively amounted to sexual harassment,

the plaintiff put the university on actual notice of the

alleged harassment. See id. at 700–01.

In arguing that allegations of harassment alone

cannot establish actual notice, the School Board

repeatedly cites our decision in Baynard v. Malone,

268 F.3d 228 (4th Cir. 2001). But its reliance on

Baynard is misplaced for two reasons. First, Baynard

held that even where a school was informed of allegations that one of its teachers had a history of sexually

abusing his students in the past, such that the school

was aware of allegations supporting a general, “substantial risk” of—or “the potential” for—ongoing or

future misconduct by that teacher, an awareness of

such possibilities did not constitute actual notice of the

teacher’s current abuse for Title IX purposes. 268

F.3d at 237–38. Rather, to establish such notice, the

plaintiff had to show that the school was aware of

an allegation that the teacher was currently abusing a

student—although the school did not need to know

the identity of the student allegedly being abused. See

id. 237–38 & n.9. Thus, nothing in Baynard suggested

that a report alleging a specific act or instance of

sexual harassment suffered by the plaintiff would

be insufficient to establish actual notice. Moreover,

regardless of what we held in Baynard, our subsequent en banc decision in Jennings is the controlling

law.

13a

Therefore, in keeping with our decision in Jennings,

we hold that when a school official with authority

to address complaints of sexual harassment and to

institute corrective measures receives a report that

can objectively be construed as alleging sexual harassment, that receipt establishes actual notice of such

harassment for Title IX purposes.

Our understanding of the actual-notice standard is

consistent with applicable Supreme Court precedent.

The actual-notice requirement originates from the

Supreme Court’s decision in Gebser v. Lago Vista

Independent School District, 524 U.S. 274, 285 (1998).

There, the Court rejected the plaintiff’s argument

that an educational institution could be liable under

Title IX via respondeat superior or constructive notice.

Id. Instead, “to avoid diverting education funding

from beneficial uses where a recipient was unaware of

discrimination in its programs,” the Supreme Court

held that “a damages remedy will not lie under Title

IX” unless the defendant school or school district had

“actual notice” or “actual knowledge” of the alleged

misconduct. Id. at 288–90.

The Gebser decision buttresses our holding today.

First, we deem it significant that Gebser used the

terms “actual notice” and “actual knowledge” interchangeably. See generally id. “Knowledge” is a broad

and somewhat ambiguous term. For instance,

“knowledge” can mean merely “[a]n awareness . . . of

a fact or circumstance” or the “condition of having

information” about something, but it can also denote

“a state of mind in which a person has no substantial

doubt about the existence of a fact.” Knowledge,

Black’s Law Dictionary (11th ed. 2019); Knowledge,

Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/knowledge. In other words,

14a

the word “knowledge” may describe either an objective

condition of having information about something or

a subjective condition of understanding or believing

in the existence of that thing. In contrast, “notice” has

a more specific definition that describes the objective

“condition of being warned or notified” of, or having

“received information about,” a fact or circumstance.

Notice, Merriam-Webster Dictionary, https://www.

merriam-webster.com/dictionary/notice; Notice, Black’s

Law Dictionary.

Given that “knowledge” has several meanings, one

of which denotes “notice,” the Supreme Court’s interchangeable use of those two words in Gebser suggests

that the more specific term, “notice,” is what the

Court really meant. Thus, the Gebser Court seems to

have used both “actual knowledge” and “actual notice”

to mean information or notification regarding a fact or

condition “given directly to, or received personally by,

a party.” Actual Notice, Black’s Law Dictionary.

This reading is reinforced by the Supreme Court’s

explanation in Gebser that to be liable under Title

IX, an appropriate school official must be “advised of”

the alleged misconduct. Gebser, 524 U.S. at 290 (emphasis added). To be “advised” of something means to

be “inform[ed]” or “give[n] information or notice” about

it. Advise, Merriam-Webster Dictionary, https://www.

merriam-webster.com/dictionary/advise

(emphasis

added). Thus, Gebser indicates that a school has actual

notice or knowledge when it is informed or notified of

the alleged harassment—most likely via a report.

The Supreme Court’s application of the actualnotice standard to the facts in Gebser confirms this

understanding. The Court held that the defendant

school district lacked actual notice because a complaint from parents of students other than the plain-

15a

tiff regarding a teacher’s inappropriate comments

during class “was plainly insufficient to alert the

principal to the possibility that [the teacher] was

involved in a sexual relationship with [the plaintiff].”

Gebser, 524 U.S. at 291 (emphasis added). If actual

notice means being “alerted” to the “possibility” of

sexual harassment occurring, a report alleging such

harassment surely is sufficient to establish it.

The Supreme Court’s subsequent decision in Davis

v. Monroe County Board of Education further bolsters

this conclusion. There, the Court addressed for the

first time a Title IX claim involving studenton-student harassment. See 526 U.S. 629 (1999).

Importantly, in discussing the deliberate-indifference

requirement for Title IX claims, the Court asked

“whether [the] petitioner can show that the Board’s

response to reports of [the harasser’s] misconduct was

clearly unreasonable.” Id. at 649 (emphasis added).

Ultimately, the Court reversed the dismissal of

the plaintiff’s complaint, finding that she “may be

able to show both actual knowledge and deliberate

indifference” based on the school board’s failure to

adequately respond to repeated “complaints” and

“allegations” of misconduct. Id. at 649, 653–54. Thus,

the Supreme Court again indicated that complaints,

allegations, or reports of gender-motivated harassment (including sexual harassment) are sufficient to

show actual notice for Title IX purposes. See also

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

180 (2005) (explaining that a school board acting

indifferently to a complaint alleging sexual harassment “would likely be liable for a Title IX violation”);

id. at 181 (“Title IX’s enforcement scheme . . . depends

on individual reporting because individuals and agencies may not bring suit under the statute unless

16a

the recipient has received ‘actual notice’ of the

discrimination.”).

Our understanding of actual notice comports with

the nearly unanimous view of our sister circuits. The

Seventh Circuit has held that “[t]o have actual

knowledge of an incident, school officials must have

witnessed it or received a report of it.” Doe v. Galster,

768 F.3d 611, 614 (7th Cir. 2014) (emphasis added).

Likewise, nearly all other courts of appeals have

found actual notice established where the plaintiff or

another interested person reported the alleged sexual harassment to a school official with authority to

address the alleged harassment and to institute

corrective measures. See, e.g., I.F. v. Lewisville Indep.

Sch. Dist., 915 F.3d 360, 372 (5th Cir. 2019); Papelino

v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d

81, 89–90 (2d Cir. 2011); Santiago v. Puerto Rico, 655

F.3d 61, 74 (1st Cir. 2011); Doe v. Sch. Bd. of Broward

Cnty., 604 F.3d 1248, 1255 (11th Cir. 2010); Oden v. N.

Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006);

Warren ex rel. Good v. Reading Sch. Dist., 278 F.3d

163, 173 (3d Cir. 2002); Vance v. Spencer Cnty. Pub.

Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000); Murrell

v. Sch. Dist. No. 1, 186 F.3d 1238, 1247 (10th Cir.

1999); see also Escue v. N. Okla. Coll., 450 F.3d 1146,

1154 (10th Cir. 2006) (“[T]he actual notice standard

does not set the bar so high that a school district is

not put on notice until it receives a clearly credible

report of sexual abuse from the plaintiff-student.”

(citation omitted)). But see Shrum ex rel. Kelly v.

Kluck, 249 F.3d 773, 780, 782 (8th Cir. 2001) (suggesting that actual knowledge requires conclusive

evidence of misconduct).

As a final note, common sense and public policy

considerations further counsel us to hold that a

17a

school’s receipt of a report or complaint alleging sexual harassment is sufficient to satisfy the actualnotice requirement. As Doe and the amici civil rights

groups correctly point out, “[a]ny other rule would

lead to absurd results.” Opening Br. at 32; see also

Amicus Br. of Nat’l Women’s L. Ctr. at 23–33. If, as the

School Board and the amici school board associations

claim, actual notice required that an appropriate

school official subjectively understood the plaintiff’s

complaint as one alleging sexual harassment, schools

involved in Title IX lawsuits could avoid liability

simply by arguing that they did not know that the

report described sexual harassment. Such a rule

would undermine Congress’s goal of protecting students from sex discrimination in education, as it would

create “perverse incentives” for schools to refrain from

training their staff to better identify instances of

sexual harassment as well as from investigating

reports of harassment—in order to avoid ever acquiring actual notice. Amicus Br. of Nat’l Women’s L. Ctr.

at 28–29. Furthermore, “[t]he consequences of [a subjective actual-notice standard] are especially concerning as applied to children, who cannot be expected to

articulate the sexual abuse and harassment they

suffer in the same words as adults.” Id. at 25.

To the extent that the School Board suggests that

actual notice means a school official’s subjective

knowledge or conclusion that the alleged sexual

harassment actually occurred, such a standard would

be even more nonsensical. Under Title IX, a school’s

actual notice of the alleged sexual harassment is what

triggers its duty to investigate. See Davis, 526 U.S. at

649–50. It would be illogical to require a school to

investigate a complaint alleging sexual harassment

only if it has already determined that such harassment did in fact occur. See Amicus Br. of Nat’l

18a

Women’s L. Ctr. at 23–25. As Doe correctly notes, a

school’s determination as to whether the alleged harassment actually occurred is relevant only to the

deliberate-indifference prong, not the actual-notice

requirement.

Nor would it make sense to require a student alleging sexual harassment to bear the burden of substantiating their claim with adequate evidence at the

time of their initial report, before the school undertakes an investigation. The School Board and the

amici school board associations contend that allowing

a student’s unsubstantiated complaint to establish

actual notice would mean that schools would be

“liabl[e] based on mere gossip or rumor.” Response

Br. at 40 (emphasis added); see also Amicus Br. of Sch.

Bd. Ass’ns at 4. This argument is meritless for two

reasons. First, it is a straw man. Doe has never argued

that a school acquires actual notice whenever a faculty member simply overhears gossip or a rumor

concerning sexual harassment. Rather, she asserts

that a school has actual notice when it receives a report

or complaint directly alleging sexual harassment.

But more importantly, the School Board’s concern is

unfounded. Title IX liability requires not only actual

notice but also proof of deliberate indifference, which

is a high bar. 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.

For the foregoing reasons, we hold that a school’s

receipt of a report or complaint alleging sexual harassment is sufficient to establish actual notice under

Title IX. This is an objective inquiry which asks

whether an appropriate official in fact received such a

19a

report or complaint and whether a reasonable official

would construe it as alleging misconduct prohibited

by Title IX. Having established the appropriate standard, we now proceed to analyze Doe’s claim.

Doe argues that the district court erred in denying

her motion for a new trial because no evidence in the

record supports the jury’s verdict that the School

Board lacked actual notice of the sexual assault

allegations. We agree.

Under Federal Rule of Civil Procedure 59(a), a

“court may, on motion, grant a new trial on all or

some of the issues . . . after a jury trial, for any reason

for which a new trial has heretofore been granted in

an action at law in federal court.” Fed. R. Civ. P.

59(a)(1)(A). Despite the permissive language of this

Rule, we have interpreted it to require district courts

to “set aside the verdict and grant a new trial” where

“(1) the verdict is against the clear weight of the

evidence, or (2) is based upon evidence which is false,

or (3) will result in a miscarriage of justice, even

though there may be substantial evidence which

would prevent the direction of a verdict.” Minter v.

Wells Fargo Bank, N.A., 762 F.3d 339, 346 (4th Cir.

2014) (quoting Knussman v. Maryland, 272 F.3d 625,

639 (4th Cir. 2001)); see also Atlas Food Sys. & Servs.,

Inc. v. Crane Nat. Vendors, Inc., 99 F.3d 587, 594 (4th

Cir. 1996) (labeling this the “duty” of the district

court (quoting Aetna Casualty & Sur. Co. v. Yeatts, 122

F.2d 350, 352–53 (4th Cir. 1941), overruled on other

grounds by Gasperini v. Ctr. for Human., Inc., 518 U.S.

415 (1996))).

Doe asserts that the jury’s finding on actual notice

was against the clear weight of the evidence and

20a

therefore that the district court should have granted

her a new trial. As a general matter, this Court

reviews a district court’s denial of a motion for a new

trial for abuse of discretion. See Minter, 762 F.3d at

346. But where, as here, a party did not move for

judgment as a matter of law before moving for a new

trial, this Court’s “scope of review is exceedingly confined, being limited to whether there was any evidence to support the jury’s verdict, irrespective of its

sufficiency.” Id. at 348 (quoting Bristol Steel & Iron

Works v. Bethlehem Steel Corp., 41 F.3d 182, 187 (4th

Cir. 1994)). In other words, we must affirm the district court’s denial of Doe’s motion for a new trial

unless “there was an absolute absence of evidence to

support” the jury’s finding that the School Board

lacked actual notice. Id. (quoting Bristol Steel, 41 F.3d

at 187).

While we acknowledge that the applicable standard

of review is an extremely stringent one, our review of

the trial record leaves no doubt that under the correct

actual-notice standard, the jury’s finding wholly lacks

evidentiary support. The record brims with unrebutted evidence demonstrating that the School Board,

through appropriate officials, received multiple reports

that objectively provided notice of an allegation that

Doe had been sexually assaulted by Smith. To summarize just some of this uncontradicted evidence:

 On March 13, 2017, Doe wrote a statement at

Assistant Principal Hogan’s request. In that

statement—which was later published to the

jury at trial—Doe described that Smith “started

rubbing [her] legs” and then “proceeded to

move [her] hands close to his genitals and

then pulled down his pants.” J.A. 2515. Doe

“moved [her] hand away but he moved [her]

21a

hand back onto his genitals.” Id. She wrote: “I

was so shocked and scared that I did not

know what to say or do.” Id. Smith “then

started to move his hands towards [her] and

[Doe] tried to block him but he still put his

hands up [her] shirt and down [her] pants.” Id.

 At trial, Hogan testified that during the

March 13 meeting, Doe stated that she did

not think the sexual contact with Smith was

consensual—which was also documented in

Hogan’s own notes from that meeting. During

her testimony, Hogan admitted that this statement indicated “a lack of consent.” J.A. 1208.

 Shortly after her meeting with Doe, Assistant

Principal Hogan met with Doe’s mother. Both

Hogan and Doe’s mother testified at trial

that during their meeting, Doe’s mother stated

explicitly that Smith’s touching of Doe was

nonconsensual and that the incident was “a

sexual assault.” J.A. 1298–99, 1613.

 School officials also received reports from

other members of the school community explicitly alleging that Smith had sexually harassed Doe—including an email from a band

student, a written statement from another

band student, and an email from a concerned

parent of an Oakton alumnus. For example,

one bandmate of Doe and Smith sent an email

titled “Need to Report Peer Pressure and

Sexual Harassment” to an Oakton counselor,

who then forwarded the email to Assistant

Principals Hogan and Taylor. J.A. 2523–24.

The email alleged that Smith pressured Doe

into nonconsensual sexual activity.

22a

If these facts do not show that the School Board

had actual notice, we don’t know what would. Doe

clearly conveyed that Smith’s touching was unwelcome and nonconsensual, and that she was “shocked

and scared.” J.A. 2515. And reports from other concerned individuals, including Doe’s mother, explicitly

described the bus incident as “sexual assault” or “sexual harassment.” J.A. 1298–99, 1613, 2523–24. There

can simply be no debate that a reasonable official

would understand explicit reports of a “sexual assault”

or “sexual harassment” as, well, reports of sexual

harassment.8

In sum, our review of the record compels us to

conclude that no evidence supports the jury’s finding

that the School Board lacked actual notice of the

alleged sexual harassment. To the contrary, the record

Indeed, while officials’ subjective understanding that an allegation involves sexual harassment is not required, here, it is clear

that Hogan actually understood the reports she received as

alleging “sexual assault”—providing further proof that a reasonable official would certainly have understood Doe to be alleging

sexual harassment. At trial, Hogan admitted that within a few

days of the bus incident, she was aware of a “possible” sexual

assault. J.A. 1186–87. And according to her testimony, Hogan

understood, at the time of her interview with Doe, that if Doe

were to press charges, it would be for “[s]exual harassment.” J.A.

1213. Hogan also testified that she and Principal Banbury

“talked about” whether they “could call [the incident] a sexual

assault” based on “the evidence that [they] had.” J.A. 1291.

Finally, when Doe’s mother asserted that Smith’s nonconsensual

touching was “a sexual assault,” Hogan responded that she and

the other school administrators “did not come to that same

conclusion, that it was a sexual assault.” J.A. 1299. All of this

evidence indicates that the School Board was both objectively and

subjectively aware that there was an allegation of a sexual

assault.

23a

contains extensive evidence confirming that the

School Board, through appropriate officials including

Assistant Principal Hogan, received multiple reports

alleging Smith’s sexual assault of Doe.9 Therefore, Doe

is entitled to a new trial under Rule 59 unless we find

alternative grounds for affirming the judgment below.

III.

The School Board offers two such grounds, both of

which it presented to the district court in its unsuccessful motion for judgment as a matter of law.

Specifically, the School Board argues that we should

affirm the denial of Doe’s motion for a new trial

because no reasonable jury could find that (1) the

School Board acted with deliberate indifference; or (2)

the sexual harassment Doe suffered was so severe,

pervasive, and objectively offensive that it deprived

her of equal access to the educational opportunities or

benefits provided by her school.

We review de novo the district court’s denial of the

School Board’s motion for judgment as a matter of law.

Baynard, 268 F.3d at 234. In doing so, we “must view

the evidence in the light most favorable to [Doe], the

nonmovant, and draw all reasonable inferences in

[her] favor without weighing the evidence or assessing

the witnesses’ credibility.” Id. at 234–35. Ultimately,

we must reject the School Board’s arguments unless

no reasonable jury could rule in Doe’s favor on one or

both of the two issues raised—deliberate indifference

We emphasize that we do not impugn the seriousness with

which the jury approached this case, and our opinion should not

be read as a criticism of the jury. Rather, the jury very likely

reached a conclusion devoid of support in the record because it

was not properly instructed on the correct legal standard for

actual notice.

24a

and deprivation of access to educational opportunities

or benefits.10 Id.

As explained below, we conclude that a reasonable

jury could find for Doe on both issues. Therefore, neither of the two grounds offered by the School Board

precludes us from granting Doe a new trial.

The School Board did not cross-appeal from the district

court’s denial of its motion for judgment as a matter of law—

which makes sense, as it prevailed before the jury. Because the

School Board does not seek to modify the district court’s judgment, it may rely on “any matter appearing in the record in

support of the judgment” without filing a cross-appeal. Blum v.

Bacon, 457 U.S. 132, 137 n.5 (1982). But because the School

Board did not cross-appeal, we are not directly reviewing the

district court’s denial of judgment as a matter of law.

Nevertheless, we deem it appropriate to evaluate the School

Board’s alternative arguments as if the School Board were

appealing from that denial. Generally, a party can challenge the

jury’s verdict in one of two ways—”[t]he party may assert that

the proceeding was in some fashion so tainted with error that

the party should be given a new trial, or it may assert that its

opponent’s evidence failed to create an issue on which reasonable

persons could differ, and that as a matter of law the dissatisfied

party should be awarded judgment as a matter of law.” 20

Charles Alan Wright & Mary Kay Kane, FED. PRAC. & PROC.

DESKBOOK § 101 (2d ed.).

Here, we are faced with a unique posture, in which the School

Board—despite having prevailed at trial—challenges two specific

findings of the jury in its opposition to Doe’s appeal seeking a new

trial. Given that the School Board is obviously not seeking a new

trial, its attack on the jury findings should be construed as a

request for judgment as a matter of law. See id. Indeed, the

parties agree that we should apply the judgment-as-a-matter-oflaw standard here. Moreover, it would hardly be fair to affirm the

judgment below on an alternative ground—and effectively overturn a jury finding—unless no reasonable jury could find for Doe

on that issue.

25a

The School Board first argues that no reasonable

jury could find that it acted with deliberate indifference—a question that the jury below did not reach.

Under Title IX, a school acts with deliberate indifference where its “response to the [alleged] harassment

or [the] lack [of any such response] is clearly unreasonable in light of the known circumstances.” Davis,

526 U.S. at 648. While deliberate indifference is a high

standard that requires more than a showing of

mere negligence, see Baynard, 268 F.3d at 236, “halfhearted investigation or remedial action will [not]

suffice to shield a school from liability,” S.B. ex rel.

A.L. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 77

(4th Cir. 2016).

Here, various evidence in the record, when considered together in the light most favorable to Doe, could

persuade a reasonable jury to find that the School

Board acted with deliberate indifference. To summarize some of that evidence:

 Despite having received reports alleging that

Doe experienced nonconsensual sexual touching on the bus ride to Indianapolis, school

officials, including Assistant Principal Taylor,

took no action to protect Doe or to offer emotional support to her during the five-day trip.

Nor did any school official ever reach out to

Doe, check in on her, or notify her parents

about the alleged incident.

 Instead, school officials, including Principal

Banbury, made inappropriate jokes about the

reported incident. For example, when Assistant Principal Taylor emailed Banbury asking

how many inches of snow Oakton was expected

26a

to get in the coming days, Banbury responded,

“How many inches under the blanket or on

the ground?” J.A. 2494; see also J.A. 994–95

(Banbury admitting during trial that this

comment was alluding to “Doe stroking []

Smith’s penis” under the blanket and thus

was “inappropriate”).

 Doe testified at trial that when she met with

Assistant Principal Hogan and Safety and

Security Specialist Baranyk after the band

trip, Baranyk tried to dissuade her from taking

any legal action, telling her that “there was

really nothing [she] could do” and that “the

school wasn’t liable for anything.” J.A. 1745.

 Doe further testified that during the same

meeting, Baranyk asked her a number of

accusatory questions, including what she was

wearing and why she did not scream during

the bus incident. When Doe responded that

she did not scream because she “was on a bus

with . . . 60 people that [she] had known for

most of [her] high school years” and did not

want to be embarrassed, Baranyk asked her in

a sarcastic manner, “Oh, well, how do you feel

now?” J.A. 1745–46. While Baranyk was asking these questions, Hogan just “sat there for

the most part.” Id. At trial, Doe testified that

the school officials “made [her] feel like [she]

was in the wrong” and they did not believe her

story. Id. at 1747–48. Doe also described their

demeanor and tone toward her as “angry” and

“menacing.” Id.

 Despite the multiple reports that Smith had

sexually assaulted Doe, school officials, including Assistant Principal Hogan, discussed with

27a

Doe, but not with Smith, the possibility of

being disciplined for engaging in sexual activity on a school trip.

 Although Assistant Principal Hogan interviewed Doe, Smith, and two of their bandmates who also went on the trip, she never

spoke with other students who were identified

as potential sources of information about the

bus incident and Doe’s demeanor in the immediate aftermath of the incident.

 In concluding that there was insufficient evidence indicating Smith had sexually assaulted

Doe, Assistant Principal Hogan seemingly

relied in large part on the fact that at the time

Smith began to touch Doe, her head was rested

on his shoulder and she was wearing his

hat. During the trial, Hogan testified that

she believed “those things[,] . . . for an 18-yearold boy, [were] signs that [Doe was] a willing

participant.” J.A. 1286. Hogan’s testimony

suggested that the assistant principal either

gave little weight to or did not really believe

Doe’s vital statement that she tried to block

Smith from touching her and pulled her hand

away—presumably because Smith denied its

truth. But notably, Smith acknowledged at

trial that he was not entirely truthful during

his meeting with Hogan, as he initially denied

ever grabbing or touching Doe on the bus, only

to change his story and admit it later.

Based on this evidence, a reasonable jury could

draw any number of conclusions that would support a

finding of deliberate indifference. For instance, a jury

could reasonably conclude that the school officials

improperly trivialized and dismissed the reports of

28a

sexual assault; that they simply assumed, without

adequate investigation, that the bus incident was a

consensual sexual encounter between teenagers; that

they neglected to take even the minimal step of

checking in on Doe to make sure she was okay; that

they tried to sweep the reports under the rug so as not

to cause trouble for Smith, one of their star students

who went on to attend a prestigious public university;

that they engaged in a “blame-the-victim” mentality

in investigating and dealing with the bus incident; or

that their decision to believe Smith’s story over

Doe’s—even after Smith had initially lied to them

about whether he had touched Doe—was likely

attributable to bias.

Accordingly, we conclude that, faced with the evidence described above, a reasonable jury could find

that the School Board’s response to the alleged sexual

assault was clearly unreasonable.11 Even though the

jury, after a new trial, could weigh all of the evidence

and find there to be no deliberate indifference, we

believe affirming the denial of a new trial on this

alternative ground is unwarranted at this stage.

Therefore, we reject the School Board’s argument that

the lack of deliberate indifference provides an alternative ground for affirming the denial of Doe’s motion

for a new trial.

For his part, our dissenting colleague argues that as

a matter of law, the School Board cannot be found

We acknowledge that the record also contains evidence

showing that the school provided a number of accommodations

requested by Doe and her parents in the months after the alleged

sexual assault. However, when the record as a whole is viewed in

the light most favorable to Doe, such accommodations do not

provide us a sufficient basis for concluding that no reasonable

jury could find deliberate indifference here.

29a

deliberately indifferent under Title IX because school

officials received notice of the alleged sexual harassment “only after the fact,” and “no school conduct, or

lack thereof, caused any [further or continued] sexual

harassment” of Doe. Dissenting Op. at 38 (emphasis

removed). However, contrary to our dissenting colleague’s assertion, Title IX liability based on studenton-student harassment is not necessarily limited to

cases where such harassment “occur[s] after [the

school] receives notice” and is “caused” by the school’s

own post-notice conduct. Id.

In Davis, the Supreme Court explained that an

educational institution could be liable under Title IX

not only where its deliberate indifference “‘cause[s]

[students] to undergo’ harassment,” but also where

such indifference “make[s] them liable or vulnerable”

to harassment. Davis, 526 U.S. at 645 (second

alteration in original). And under the latter theory of

liability, “other courts have found (or countenanced

the possibility of finding) Title IX liability, even

though the plaintiff alleged only a single incident of

pre-notice harassment.” Fitzgerald v. Barnstable Sch.

Comm., 504 F.3d 165, 172 (1st Cir. 2007), rev’d and

remanded on other grounds, 555 U.S. 246 (2009);

Williams v. Bd. of Regents of Univ. Sys. of Ga., 477

F.3d 1282, 1295–97 (11th Cir. 2007).12 Notably, the

Courts of appeals have actually divided on the issue of

whether a single, isolated incident of pre-notice harassment may

be sufficient to trigger Title IX liability. The First and Eleventh

Circuits have indicated that such an incident, if serious enough,

would be sufficient. See Fitzgerald, 504 F.3d at 172–73 (1st Cir.);

Williams, 477 F.3d at 1295–97 (11th Cir.). On the other hand, the

Eighth, Ninth, and Tenth Circuits have held that post-notice

harassment is required to show a school’s deliberate indifference.

See K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir.

30a

First Circuit has emphasized that a single instance

of pre-notice, student-on-student harassment could

“form a basis for Title IX liability if that incident were

vile enough and the institution’s response, after learning of it, unreasonable enough to have the combined

systemic effect of denying access to a scholastic

program or activity.” Fitzgerald, 504 F.3d at 172–73.

We agree with the First and Eleventh Circuits

that a school may be held liable under Title IX based

on a single, pre-notice incident of severe sexual

harassment, where the school’s deliberate indifference

to that incident made the plaintiff more vulnerable to

future harassment, or otherwise had “the combined

systemic effect of denying [equal] access to a scholastic

program or activity.” Id. This reading of Title IX is

consistent with the plain language of the statute,

which reads: “No person in the United States shall,

on the basis of sex, be excluded from participation

in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). As the Supreme Court noted in Davis, “[t]he

statute makes clear that, whatever else it prohibits,

students must not be denied access to educational

benefits and opportunities on the basis of gender.”

Davis, 526 U.S. at 650 (emphasis added).

Even a single incident of sexual harassment, if

sufficiently severe, can inflict serious lasting harms

on the victim—physical, psychological, emotional, and

social. And where such harms deprive the victim of

the ability to fully participate in or to benefit from the

educational opportunities provided by their school,

2017); Escue, 450 F.3d at 1156 (10th Cir.); Reese v. Jefferson Sch.

Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000).

31a

and where this deprivation remains unremedied or is

compounded as a result of the school’s deliberate

indifference, the victim surely is “denied access to

educational benefits and opportunities on the basis

of gender”—which Title IX clearly prohibits. Id. In

such situations, the school’s inadequate response to

the alleged sexual harassment leaves the victim more

vulnerable to further harassment.

Thus, we hold that a school may be held liable under

Title IX if its response to a single incident of severe

sexual harassment, or the lack thereof, was clearly

unreasonable and thereby made the plaintiff more

vulnerable to future harassment or further contributed to the deprivation of the plaintiff’s access to

educational opportunities. Because we conclude that a

reasonable jury could make such a finding in this

case, we decline to affirm the district court’s judgment

based on a lack of deliberate indifference.

The School Board also asserts that we should affirm

the judgment below because, as a matter of law, Doe

was not deprived of equal access to the educational

opportunities or benefits provided by her school.

Because the jury specifically found that the alleged

sexual assault occurred and that it caused such a

deprivation for Doe, the School Board asks us to

conclude that the jury’s findings on those points were

unreasonable. Again, we reject the School Board’s

argument as meritless.

First, the School Board misconstrues the law by

claiming that its own response to the alleged sexual

harassment did not exclude Doe from any educational opportunities or benefits. But the Supreme

Court has explained that a Title IX plaintiff must

32a

establish “sexual harassment . . . that is so severe,

pervasive, and objectively offensive that it can be said

to deprive the [plaintiff] of access to the educational

opportunities or benefits provided by the school.” Id.

at 650–51 (emphasis added). In other words, the main

object of inquiry for this prong is the alleged sexual

harassment, rather than the defendant’s response

thereto. See id.; see also Jennings, 482 F.3d at 696–99.

Indeed, the latter is relevant only to the issue of deliberate indifference. Thus, to the extent that the School

Board claims it did not bar Doe’s access to educational

opportunities, its argument is misguided.

But more importantly, we conclude that the record,

viewed in the light most favorable to Doe, could lead

a reasonable jury to find in Doe’s favor on this issue.

In Jennings, we explained that a victim of sexual

harassment may be deprived of access to educational

opportunities or benefits in at least three different

ways: if the harassment (1) “results in the physical

exclusion of the victim from an educational program or

activity”; (2) “‘so undermines and detracts from the

victim[’s] educational experience’ as to ‘effectively

den[y her] equal access to an institution’s resources

and opportunities’”; or (3) “has ‘a concrete, negative

effect on [the victim’s] ability’ to participate in an

educational program or activity.” Jennings, 482 F.3d

at 699 (alterations in original) (quoting Davis, 526

U.S. at 650–51, 654). In assessing whether the alleged

harassment caused such a deprivation, the factfinder

must consider all of the “surrounding circumstances”

and use “[c]ommon sense[] and an appropriate sensitivity to social context” to “identify objectively hostile or abusive conduct.” Id. at 696 (first quoting Davis,

526 U.S. at 651; then quoting Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).

33a

Here, Doe’s testimony and evidence, if credited, indicate that she was a victim of a serious sexual assault,

during which Smith—without Doe’s consent—touched

her intimate body parts under her clothes, digitally

penetrated her vagina, and forced her to pleasure him

by stroking his penis. One can hardly dispute that

such sexual violence, which would constitute a criminal offense in most, if not all, jurisdictions, would have

a severe and traumatic impact on any high school

student.13 Indeed, in Jennings, we held that a jury

could reasonably find that the “verbal sexual abuse”

allegedly suffered by the college-student plaintiff “was

sufficiently severe or pervasive to” deprive her of equal

access to educational opportunities or benefits. Id. at

698–99. While the damaging effects of verbal sexual

harassment may equal or even exceed those of physical sexual assault in certain cases, we believe a

reasonable jury could conclude that the sexual violence Doe allegedly suffered was at least as severe,

offensive, and harrowing as the verbal harassment

experienced by the plaintiff in Jennings.14 See also

See 6A C.J.S. Assault § 73 (updated June 2021) (defining

“criminal battery” as “harmful or offensive touching”); 87 A.L.R.3d

1250 (originally published in 1978) (defining the offense of “sexual battery”); see also Rape, Fed. Bureau of Investigation,

https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/

violent-crime/rape (defining rape as the “[p]enetration, no matter

how slight, of the vagina or anus with any body part or object, or

oral penetration by a sex organ of another person, without the

consent of the victim”).

Generally speaking, while federal and state laws criminalize physical sexual assault, they prescribe only civil remedies for

verbal sexual harassment. See Overview of Rape and Sexual

Violence, Nat’l Inst. Just., U.S. Dep’t of Just. (Oct. 25, 2010),

https://nij.ojp.gov/topics/articles/overview-rape-and-sexual-violence;

Sexual Harassment, Rape, Abuse & Incest Nat’l Network, https://

www.rainn.org/articles/sexual-harassment.

34a

Davis, 526 U.S. at 653–54 (holding that the plaintiff

sufficiently alleged actionable sexual harassment

where her minor daughter suffered “objectively

offensive touching” that amounted to “criminal sexual

misconduct”).

Moreover, the record includes significant evidence

supporting a finding that the alleged sexual assault

had a concrete, negative effect on Doe’s ability to

participate in the educational opportunities or benefits

provided by her school. For example, the record

contains evidence from which a reasonable jury could

conclude that:



Doe’s academic performance and class attendance declined after the band trip. During her

sophomore year (i.e., before the alleged

assault), Doe was absent three times and

never tardy. But in her junior year, she was

absent seventeen times and tardy four times.

And whereas Doe received five A or A-’s and

one B on her final exams in her sophomore

year, she received three A or A-’s, a B, a B-, a

C, and a D+ on her final exams in her junior

year.



After the band trip, Doe felt so terrified of

Smith that she altered her behavior in school

and limited her participation in band activities to avoid him. At trial, Doe testified

that after the alleged assault, she “was so

uncomfortable being around . . . Smith that

[she] had to sit out of band class” until the

band director rearranged the seating to keep

Doe and Smith as far apart as possible. J.A.

1755. During that time, she sat alone in a

small, windowless practice room away from

her bandmates, which made her feel “iso-

35a

lated” and “very alone.” Id. Doe also missed

the band’s end-of-year concert because she

did not want to see Smith. Doe testified that

while band had long been an important part

of her life, she found it difficult to enjoy and

fully participate in band activities after the

alleged assault—even in her senior year, after

Smith had graduated.



As a result of the alleged sexual assault, Doe

suffered psychological and emotional trauma

that interfered with her daily functioning.

She experienced increased feelings of anxiety

and anger, nightmares, flashbacks, intrusive

thoughts about the assault and the meetings

with school administrators, and difficulty

eating, sleeping, and concentrating. Doe

sought and received professional counseling

for several weeks both in her junior and

senior years in an effort to cope with the

trauma caused by the alleged assault. She

was diagnosed with adjustment disorder with

anxiety.

Based on these and other concrete, negative effects

supported by the record, a jury could reasonably find

that the alleged sexual assault was severe enough to

deprive Doe of equal access to educational opportunities or benefits.15 Indeed, we held the same in

We respectfully disagree with our dissenting colleague’s

assertion that the sexual assault Doe allegedly suffered was not

sufficiently severe to be actionable under Title IX because it was

“an isolated, one-time incident.” Dissenting Op. at 34. Although

a single, isolated incident generally does not provide a basis for

Title IX liability, we have recognized that such an incident may

be sufficient if it is “extremely serious.” Jennings, 482 F.3d at 696

(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788

36a

Jennings where the plaintiff—just like Doe—presented evidence showing that the alleged harassment

made her “feel humiliated, anxious, and uncomfortable,” “caused her to suffer severe emotional distress,”

and thereby “had a negative impact on her participation . . . in [school programs] and on her academic

performance.” Jennings, 482 F.3d at 699–700. We see

no reason to treat this case differently. Therefore, we

reject the School Board’s invitation to affirm the

judgment below on this ground.

IV.

Because no evidence in the record supports the

jury’s finding that the School Board lacked actual

notice or knowledge of the alleged sexual harassment,

and because we find no alternative grounds for

affirming the judgment below, we conclude that Doe is

entitled to a new trial.16 Accordingly, we reverse the

(1998)); see also Fitzgerald, 504 F.3d at 172–73 (noting that a

single instance of sexual harassment could “form a basis for Title

IX liability if that incident were vile enough”). Here, we believe a

jury could reasonably conclude that the sexual assault allegedly

suffered by Doe as a high school student (including digital

penetration of her vagina) and the lasting trauma caused by that

incident were serious enough to trigger Title IX liability.

Curiously, the dissent claims that “[t]he majority opinion . . .

vacates the jury’s verdict [in part] because it concludes that the

school . . . refused to discipline the offending student.” Dissenting

Op. at 34. Our good colleague is mistaken. Nothing in our analysis rests on the fact that the school officials decided not to

discipline Smith.

Nor does our decision “improperly substitute the majority’s

finding for the jury’s,” as the dissent asserts. Id. Rather, we

merely vacate the jury’s finding on actual notice because it was

based on an incorrect legal standard for evaluating whether such

notice existed, and because we conclude that no evidence in the

record supports the jury’s finding under the correct standard. See

37a

district court’s denial of her Rule 59 motion and

remand for a new trial consistent with the legal

standard set forth in this opinion.

REVERSED AND REMANDED

supra note 9. Indeed, the dissent too acknowledges that “whether

the school received notice of the [bus] incident . . . could hardly

have been in dispute,” as it was “actually told of the incident.”

Dissenting Op. at 35.

38a

NIEMEYER, Circuit Judge, dissenting:

The jury in this case returned a verdict in favor of

the School Board, finding that it was not liable under

Title IX for a single incident of student-on-student

sexual harassment. The majority opinion nonetheless

vacates the jury’s verdict because it concludes that

the school received notice of the incident after the fact

and refused to discipline the offending student. Not

only does this conclusion improperly substitute the

majority’s finding for the jury’s, it does so based on a

fundamental misunderstanding of the school’s liability

under Title IX.

During a band trip to perform at a music festival, a

male student of Oakton High School in Vienna,

Virginia, engaged in sexual touching of a fellow female

student while the two were sitting together on a bus.

The female student told school officials that the

touching was not consensual. After the school was

notified of the incident and conducted an investigation, receiving somewhat conflicting accounts, it concluded that a “sexual assault” had not occurred and

imposed no discipline.

The incident occurred while the two students were

sitting together on a bus covered by a blanket, and no

school official or chaperone knew at the time that it

was taking place. It was an isolated, one-time incident,

and no evidence forecasted repetition. Indeed, there

was no suggestion at trial that any other such incident

took place thereafter, whether by the same male

student or by another of the female student’s peers.

In other words, the harassment was not systemic.

Moreover, there was no evidence that the school

39a

caused either the incident or any other sexual harassment.

The female student filed suit against the Fairfax

County School Board, alleging that the school violated

Title IX because it acted with deliberate indifference

to the report of her sexual assault and therefore was

liable to her for damages. The jury found that the male

student had, indeed, sexually harassed the female

student and that the incident was sufficiently severe

to deprive her of equal access to the educational

opportunities or benefits provided by the school. But

the jury returned a verdict in the School Board’s favor,

finding that the School Board did not have sufficient

knowledge of the sexual harassment to give rise to

liability.

The majority opinion focuses almost entirely on

whether the school received notice of the incident—

a fact that could hardly have been in dispute. The

school was actually told of the incident and conducted

an investigation. The majority opinion then ceremoniously concludes that the School Board had actual

knowledge of the incident, and because the jury had

found that the school did not receive knowledge

sufficient for liability, the majority opinion vacates

the jury verdict and orders a new trial. While the

majority opinion goes to great lengths to show that the

School Board received notice of the incident and therefore had actual knowledge of it, it barely addresses

whether such notice created liability under Title IX.

I conclude that the receipt of after-the-fact notice

does not impose liability on the School Board in the

circumstances of this case. While, unremarkably, I

agree with the majority that the school received notice

of the incident, the knowledge that was acquired did

not make the School Board liable under Title IX. To

40a

have liability, the school had to receive knowledge of

conduct such that the school’s indifference to the known

conduct actually caused the harassment that denied

the student the benefits of the educational programs

or activities of the school. In short, as explained in

detail by the Supreme Court, liability can be imposed

on the school only where it is shown that the school’s

own conduct “caused the [sex] discrimination.” Davis

v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999)

(emphasis added) (cleaned up). This requirement is

foundational, as a school is liable under Title IX only

when the school’s own deliberate conduct amounts to

or causes sex discrimination.

Title IX provides, “No person in the United States

shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). Although the provision does not mention

any private right of action against a school when such

discrimination occurs, the Supreme Court has found

an implied private right of action in the statute that

permits students to sue educational institutions for

damages. See Cannon v. Univ. of Chi., 441 U.S. 677,

688–89 (1979). But the Court carefully cabined that

cause of action in subsequent decisions, rejecting any

notion that schools face strict liability under Title IX

or can be imputed with liability under the principles of

agency or constructive notice. See Gebser v. Lago Vista

Indep. Sch. Dist., 524 U.S. 274, 285 (1998). In Gebser,

the Court held that only the school’s own conduct can

justify liability and that such conduct can be shown

only where a school has “actual knowledge” (i.e.,

“notice”) of the harassment in circumstances where it

41a

has an opportunity to rectify it and its deliberate

indifference to the knowledge causes harassment by

failing to end or prevent it. Id. at 289–90. As the Court

stated, the school must have “actual knowledge of

the [sexual] conduct” and also “have an opportunity to

take action to end the harassment or to limit further

harassment.” Id. at 289. In short, its deliberate

indifference must be “the cause of the violation.” Id. at

291 (emphasis added).

In Davis v. Monroe County Board of Education, the

Supreme Court again considered a school’s Title IX

liability—this time in the context of student-onstudent harassment—and reemphasized the kind of

notice that imposes liability on a school. After

reaffirming that Title IX did not permit imputed

liability based on agency principles or constructive

notice, the Court made clear that only the independent conduct of the school causing harassment could

result in the school’s liability. It explained, “recipients

[of federal funds] could be liable in damages only

where their own deliberate indifference effectively

caused the discrimination.” Davis, 526 U.S. at 642–43

(emphasis added) (cleaned up). And it repeated the

proposition more fully, giving emphasis to it:

If a funding recipient does not engage in

harassment directly, it may not be liable for

damages unless its deliberate indifference

subjects its students to harassment. That is,

the deliberate indifference must, at a minimum, cause students to undergo harassment

or make them liable or vulnerable to it.

Id. at 644–45 (cleaned up).

42a

As a consequence of its holdings in both Gebser and

Davis, the Davis Court observed:

Although, in theory, a single instance of

sufficiently severe one-on-one peer harassment could be said to have [a systemic] effect,

we think it unlikely that Congress would

have thought such behavior sufficient to rise

to this level in light of the inevitability of

student misconduct and the amount of litigation that would be invited by entertaining

claims of official indifference to a single

instance of one-on-one peer harassment.

Davis, 526 U.S. at 652–53. For a school that does not

directly discriminate, harassment must occur after

it receives notice—making it something that the

school can prevent. And “[b]y limiting private damages

actions to cases having a systemic effect on educational

programs or activities,” the Court “reconcile[d] the

general principle that Title IX prohibits official

indifference to known peer sexual harassment with

the practical realities of responding to student behavior.” Id. at 653 (emphasis added).

The Davis Court contrasted its doubt about a single

act of one-on-one peer harassment—which would not

have a systemic effect—with the facts before it. There,

a student was “the victim of repeated acts of sexual

harassment by [a peer] over a 5-month period,” during

which, the facts could show, the school had knowledge

of the conduct but “made no effort whatsoever . . . to

put an end to the harassment.” Davis, 526 U.S. at 653–

54. This case does not fit that mold. The incident here

was a one-time act of sexual misconduct by a male

student, and the school learned of the incident only

after the fact, with no opportunity to prevent it.

Moreover, there was no suggestion that the

43a

harassment continued and therefore no suggestion

that the school had failed to prevent any continuing or

additional harassment. In short, no school conduct, or

lack thereof, caused any sexual harassment, as is

required for the school’s liability under Title IX.

The jury in this case found that the school did not

have sufficient notice as required for liability under

Title IX, and this is well supported by the record.

While the school did receive after-the-fact notice of a

single incident, it did not have the type of notice

required by Title IX, i.e., notice that provided the

school with an “opportunity” to correct the situation.

See Kollaritsch v. Mich. State Univ. Bd. of Trustees,

944 F.3d 613, 622 (6th Cir. 2019), cert. denied, 141 S.

Ct. 554 (2020) (noting that the “critical point” for a

school’s liability under Title IX is “that the [school’s]

response must bring about or fail to protect against the

further harassment”); see also K.T. v. Culver-Stockton

Coll., 865 F.3d 1054, 1058–59 (8th Cir. 2017); Escue v.

N. Okla. Coll., 450 F.3d 1146, 1155–56 (10th Cir.

2006); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d

736, 740 (9th Cir. 2000).

Thus, I would affirm.

44a

APPENDIX B

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

[Filed August 30, 2021]

————

No. 19-2203

(1:18-cv-00614-LO-MSN)

————

JANE DOE,

Plaintiff-Appellant,

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellee.

NATIONAL WOMEN’S LAW CENTER; CHICAGO

ALLIANCE AGAINST SEXUAL EXPLOITATION;

CLEARINGHOUSE ON WOMEN’S ISSUES;

DESIREE ALLIANCE; FEMINIST MAJORITY

FOUNDATION; FORGE, INCORPORATED; GENDER

JUSTICE; GIRLS INC.; HUMAN RIGHTS CAMPAIGN;

IN OUR OWN VOICE: NATIONAL BLACK WOMEN’S

REPRODUCTIVE JUSTICE AGENDA; KWH LAW CENTER

FOR SOCIAL JUSTICE AND CHANGE; LEGAL AID AT

WORK; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S

FORUM; NATIONAL ASSOCIATION OF SOCIAL WORKERS,

AND ITS VIRGINIA CHAPTER; NATIONAL CRITTENTON;

NATIONAL NETWORK TO END DOMESTIC VIOLENCE;

NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES;

NATIONAL WOMEN’S POLITICAL CAUCUS; RELIGIOUS

COALITION FOR REPRODUCTIVE CHOICE; STOP

SEXUAL ASSAULT IN SCHOOLS; WOMEN’S LAW

45a

CENTER OF MARYLAND, INCORPORATED;

TRANSGENDER LAW CENTER; WOMEN LAWYERS

ASSOCIATION OF LOS ANGELES; WOMEN LAWYERS

ON GUARD INC.; WOMEN’S BAR ASSOCIATION OF THE

STATE OF NEW YORK; WOMEN’S LAW PROJECT,

Amici Supporting Appellant.

NATIONAL SCHOOL BOARDS ASSOCIATION;

VIRGINIA SCHOOL BOARDS ASSOCIATION;

MARYLAND ASSOCIATION OF BOARDS OF EDUCATION;

NORTH CAROLINA SCHOOL BOARDS ASSOCIATION;

SOUTH CAROLINA SCHOOL BOARD ASSOCIATION,

Amici Supporting Appellee.

————

ORDER

The court denies the petition for rehearing en banc.

A requested poll of the court failed to produce a

majority of judges in regular active service and not

disqualified who voted in favor of rehearing en banc.

Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge

Quattlebaum, Judge Richardson, and Judge Rushing

voted to grant rehearing en banc. Chief Judge Gregory,

Judge Motz, Judge King, Judge Keenan, Judge Wynn,

Judge Diaz, Judge Floyd, Judge Thacker, and Judge

Harris voted to deny rehearing en banc.

Entered at the direction of Judge Wynn.

For the Court

/s/ Patricia S. Connor, Clerk

46a

WYNN, Circuit Judge, concurring in the denial of

rehearing en banc:

Because this Court denies the petition for rehearing

en banc, this matter is decided by the opinions produced by the three-judge panel that fully considered

the issues after oral argument. Yet now, we confront

two advisory opinions that purport to dissent from

the denial of the petition to rehear this matter en

banc. But those opinions provide next to no explanation for why our colleagues are dissenting from the

denial of rehearing en banc, a procedural question

falling under Federal Rule of Appellate Procedure

35(a). Instead, both opinions focus entirely on the

underlying merits, and thus are no more than advisory

opinions that read like editorials or legal commentary

on the three-judge panel decision.

This is not a new practice, though until recently, it

was uncommon in our circuit. See Cannon v. Kroger

Co., 837 F.2d 660, 660 (4th Cir. 1988) (Murnaghan, J.,

dissenting from the denial of rehearing en banc)

(noting that, as of the late 1980s, this practice was

“unusual, if not extraordinary” in the Fourth Circuit).

For decades in other circuits, both panel and nonpanel members have issued merits opinions dissenting

from the denial of rehearing en banc. E.g., TahoeSierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency,

228 F.3d 998, 999 (9th Cir. 2000) (Kozinski, J.,

dissenting from the denial of rehearing en banc in a

case where he did not sit on the panel). “Since the

first [dissent from a denial of rehearing en banc] in

1943, appellate judges have employed them with

increasing regularity,” and the practice particularly

picked up steam after the turn of the century. Jeremy

D. Horowitz, Not Taking “No” for an Answer: An

Empirical Assessment of Dissents from Denial of Re-

47a

hearing En Banc, 102 Geo. L.J. 59, 60 (2013). The vast

majority of these dissents are written by judges other

than the panel dissenter.1 Id. at 74.

To be sure, the proliferation of dissents from the

denial of rehearing en banc has “sparked heated

debate among academics and judges alike.” Id. at 61.

Some have justified this practice by noting that

“there has been some indication from members of the

Supreme Court that they find [such] dissents useful in

deciding whether to take cases on certiorari,” and

that the dissents “inform the Supreme Court of the

importance of an issue and of arguments favoring one

side or the other that have not theretofore appeared in

print.” Marsha S. Berzon, Introduction, 41 Golden

Gate U. L. Rev. 287, 293 (2011); see also Indraneel Sur,

How Far Do Voices Carry: Dissents from Denial of

Rehearing En Banc, 2006 Wis. L. Rev. 1315, 1353

(2006) (“A crisp rehearing dissent may help a losing

party at the panel level write an analytically powerful

petition for certiorari. That may be why the Solicitor

General of the United States and private litigants

quote from rehearing dissents when petitioning or

fending off arguments in opposition to a petition.”

(footnotes omitted)). “[C]ircuit judges elsewhere in

the nation also take heed of rehearing dissents in

various degrees,” and there are even “instances of

Interestingly, by tradition in the Ninth Circuit, the panel

dissenter is not usually the judge to call for an en banc poll.

Marsha S. Berzon, Introduction, 41 Golden Gate U. L. Rev. 287,

290 (2011). In this case, the advisory opinions appended below

include opinions from both the panel dissenter who initiated the

poll (Judge Niemeyer) and a non-panel member (Judge Wilkinson).

I refer to Judge Wilkinson’s opinion as the “first” dissenting opinion and Judge Niemeyer’s opinion as the “second” dissenting

opinion.

48a

congressional reports citing” them. Sur, supra, at

1354, 1356.

But these dissents also come with serious drawbacks. They have been characterized as reading,

“inappropriately, like petitions for writs of certiorari,”

providing one judge’s blueprint for how the favored

party ought to frame the case before the Supreme

Court. Berzon, supra, at 294. Some have observed

that these advisory opinions involve circuit judges

engaging in “advocacy for further review [that] is

inappropriate” and comes at the cost of not “upholding

[the Court’s] decision-making processes once they

are completed.” Id.; see also Indep. Ins. Agents of Am.,

Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992)

(Randolph, J., separate opinion) (arguing that it is

“inappropriate” for judges to use dissents from denials

of rehearing en banc to “step[] out of the robe and

into the role of an advocate” and that these dissents

“rub[] against the grain of Article III’s ban on advisory

opinions”); Michael E. Solimine, Due Process and

En Banc Decisionmaking, 48 Ariz. L. Rev. 325, 328

(2006) (quoting Judge J. Clifford Wallace as stating

that he does not read dissents from denials of en banc

review because “[t]hey express a dissent from a nonopinion of the court” and are akin to “editorials after

the court has ruled”); cf. Berzon, supra, at 294 (noting

that some have argued that dissents from denials of

rehearing en banc waste judicial resources on nonprecedential opinions falling outside the traditional

three-judge-panel-or-en-banc-review dichotomy). To

the extent some “members of the Supreme Court” have

indicated “they find the[se] dissents useful in deciding

whether to take cases on certiorari,” Berzon, supra, at

293, this appears to extend an invitation for individual

judges to freely submit advisory opinions to the

Supreme Court.

49a

There is also a belief that such dissents may harm

the public image of the judiciary. Some commentators

suggest that these opinions can create an “overblown

appearance of internal dissension and disarray,” id.

at 294, while also “heighten[ing] the degree to which

politics overtly governs judicial activity” by “imply[ing]

an ideological preference so strong that it compels a

judge to interpose herself in a dispute in which she

has not been called to participate,” Horowitz, supra, at

85–86; see also id. at 83 (noting that “[t]he Supreme

Court grants review in cases with [dissents from

denial of rehearing en banc] by Republican affiliates

roughly 35% of the time, compared to a Democratic

affiliate success rate of only 17%”).

In particular, there has been criticism that a dissent

by a non-panel member that addresses the merits may

signal to the public disrespect for the hard work of the

panel and for the full court’s decision not to take a

case en banc, even though en banc review “is not

favored” by Rule 35(a). See Horowitz, supra, at 68

(“Readers of the Federal Reporter are left with the

impression of . . . an opinion entitled to less deference

than that which would ordinarily be accorded to circuit

precedent.”). And “[w]hen the rehearing dissenter

was not on the panel, . . . the judge has not ordinarily

read the entire record, participated in oral argument,

or discussed the case in conference with other judges.”

Sur, supra, at 1344–45. This may “call into question

the value of the judicial process as a whole” because

“[i]f a judge who did not read the parties’ briefs or hear

their oral arguments nevertheless feels free to give her

opinion on the merits of the case . . . [,] one might

reasonably wonder whether the judicial system places

too much emphasis on briefing and oral argument.”

Horowitz, supra, at 87.

50a

Whatever the value or cost of these advisory opinions, as a Court, we ought to acknowledge and be

transparent about what this practice entails. In our

circuit, any active judge may call for an en banc poll,

“with or without a petition” filed by a party. 4th Cir.

R. 35(b). That means that this practice permits nonpanel members to issue advisory opinions on any point

of disagreement they have with the merits of any

opinion issued by any panel, simply by calling for a poll

and, if it is denied, appending a dissent.

Rule 35, as presently written, does not explicitly

describe such a process. But given that our circuit

has begun to embrace this practice, I believe we should

modify Rule 35 to make explicit that individual judges

may submit advisory opinions attached to the denial

of rehearing en banc. And in doing so, the rule should

reflect that these types of opinions neither supplement

the panel decisional opinions nor “constitute the law

of the circuit.” Horowitz, supra, at 92.

Having expressed these considerations in the interest of the transparency that is so vital to our role as

judges and of providing some notice of the real purpose

of these types of opinions, I acknowledge again that

this practice appears to have secured a foothold in

our circuit. Accordingly, I offer the following equally

advisory opinion to respond to the two advisory

opinions in dissent of this court’s decision to deny

rehearing en banc.2

Our first dissenting colleague refers to my “reservations”

about dissents from the denial of rehearing en banc. Wilkinson

Dissenting Op. at 19. My colleague is mistaken. I merely have

endeavored to gather commentary from judges and legal scholars

describing the costs and benefits of these dissents and to provide

some suggestions as to how we might make their usage more

transparent going forward. I also note that nothing my good

51a

* * *

Today, our Court properly denies the petition for

rehearing en banc in this case. In doing so, we recognize that (1) an education free of discrimination on

the basis of sex is undoubtedly an important right of

all students, and (2) consistent with the statutory

text and applicable case law, the panel majority

opinion adequately safeguards that right. In short, the

panel majority opinion concluded that no evidence in

the record supported the jury’s verdict under the

correct actual-knowledge legal standard, so the panel

reversed and remanded for a new trial. Doe v. Fairfax

Cnty. Sch. Bd., 1 F.4th 257, 263 (4th Cir. 2021). The

panel majority opinion also considered, and rejected,

the School Board’s argument for affirmance on an

alternative ground: that no reasonable jury could find

that the School Board acted with deliberate indifference. Id. at 271.

Now, based on a single paragraph in the School

Board’s petition for rehearing that advances a new

argument, our first colleague in dissent from the

denial of rehearing en banc advises that this Court

should grant en banc review of an issue that was not

presented to the district court at trial and not presented subsequently to the panel on appeal. In that

single paragraph, the School Board argues that

because Spending Clause legislation must be clear

about potential liabilities, the School Board cannot be

held liable under the deliberate-indifference prong

because Title IX does not make clear that schools

may be held liable for their response to a single

instance of sexual harassment, no matter how

colleague has said changes the fact that these are advisory

opinions.

52a

egregious. And though that argument is at odds with

the School Board’s position at oral argument and is

raised only in passing in its petition for rehearing, our

first colleague in dissent believes that it meets the

criteria under Federal Rule of Appellate Procedure

35(a) for granting rehearing en banc. See Wilkinson

Dissenting Op. It surely does not. But even if it did,

the plain text of Title IX supports the panel majority’s

ruling in this matter.

This case involves a sexual assault that a jury

found took place on a school bus during a band trip.

Doe, 1 F.4th at 261, 263. The plaintiff, “Jane Doe,” sat

next to “Jack Smith,” an older student. Doe alleges

that Smith repeatedly touched her breasts and genitals and penetrated her vagina with his fingers despite

her efforts to physically block him, and that he also

repeatedly put her hand on his penis even after she

moved it away. She testified at trial that during

this incident, she felt so “confused,” “shocked,” and

“scared” that she was “frozen in fear the whole time.”

Id. at 261.

Doe, her friends, and her parents repeatedly

reported the incident to the school. Id. at 261–62. Yet

a reasonable jury could conclude that these reports

were met with deliberate indifference. To summarize

just a few pieces of evidence the jury could view in

Doe’s favor: school officials took no action to protect

Doe or to offer emotional support to her during the

five-day band trip; instead, the principal made an

inappropriate joke about the incident in an email;

after the band trip, the school’s Safety and Security

Specialist asked victim-blaming questions such as

what Doe was wearing and why she did not scream;

and school officials discussed with Doe (but not

with Smith!) the possibility of being disciplined for

53a

engaging in sexual activity on a school trip. Id. at 271–

72.

The jury found that Smith sexually harassed Doe

and that the harassment was severe, pervasive, and

offensive enough to deprive Doe of equal access to the

educational opportunities or benefits provided by her

school. But, applying the incorrect legal standard, the

jury found that the school lacked actual knowledge of

the harassment. Because of this, the jury did not

reach the question of whether the school had

responded to the harassment with deliberate indifference. The panel majority reversed and remanded this

matter for a new trial based on the plain language of

Title IX and applicable case law.

The panel majority also rejected the arguments

raised by the dissent and repeated here by our second

colleague in dissent from the denial of rehearing en

banc. See id. at 273–74, 277 n.16. For example, the

panel majority rejected the notion that its holding

was “based essentially on the school’s refusal to

discipline the male student.” Niemeyer Dissenting

Op. at 35; see Doe, 1 F.4th at 277 n.16. A school’s

decision about whether or not to discipline a harassing

student may form part of the deliberate-indifference

inquiry, but it is not, on its own, dispositive. Rather, it

is a fact for the jury to weigh in the first instance.

Our first dissenting colleague advises that he

would affirm on the alternative ground that Doe cannot hold the school liable for its response to what he

terms “a single isolated incident of pre-notice sexual

harassment” because Title IX “does not begin to . . .

unambiguously” provide for such liability, no matter

how severe the incident or how ludicrous the school’s

response. Wilkinson Dissenting Op. at 18. That is

wrong. E.g., Farmer v. Kan. State Univ., 918 F.3d

54a

1094, 1098–1104 (10th Cir. 2019) (rejecting university’s argument that a plaintiff’s lawsuit must be

dismissed because, while she was raped several times

by two male students at a fraternity event in front of

other students who filmed one of the attacks, suffered

severe psychological effects that caused her grades to

“plummet[]” and her to lose her academic scholarship,

and was not assisted by the school in bringing the

men to justice, she was not raped again after notifying

the school of the initial incidents).

In crafting his erroneous interpretation of the statute, our first dissenting colleague creatively argues

that “[t]he concurrence suggests that liability can be

retroactively imposed [against the school] for the

initial assault.” Wilkinson Dissenting Op. at 21

(emphasis added). But he battles a strawman. No one

“suggests,” much less contends, that a school can face

“retroactive” liability for the assault itself when the

assault was committed by another student and the

school had no prior warning it would occur. Id. at 21–

22.

Nor may a school be held liable “when it hasn’t a

clue” about the harassment. Id. at 22. The school’s

actual notice or knowledge is an element of a Title IX

claim based on student-on-student sexual harassment. Doe, 1 F.4th at 263–64. For a claim like the

one at hand, where liability is premised on the school’s

after-notice response to a pre-notice instance of peeron-peer harassment, the school is liable only for its

decisions after it, indeed, has “a clue.” Wilkinson

Dissenting Op. at 22.

That is, as Doe’s counsel noted at oral argument

and as the panel majority opinion explained, a school

may be held liable for its own behavior in response to

a peer assault. See Doe, 1 F.4th at 263 (noting that

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Doe’s lawsuit was premised on the assertion “that

her school had acted with deliberate indifference to

reports of her sexual assault”); id. at 266 (one of the

necessary questions in Title IX cases involving

student-on-student harassment is “whether [the]

petitioner can show that the Board’s response to

reports of [the harasser’s] misconduct was clearly

unreasonable” (emphasis omitted) (quoting Davis v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999)));

Oral Arg. at 11:35–45 (Doe’s counsel noting that “[t]he

injury in question in a Title IX suit is an educational

deprivation . . . [,] not the sexual assault itself”);

see also Davis, 526 U.S. at 642 (“Pennhurst does not

bar a private damages action under Title IX where

the funding recipient engages in intentional conduct

that violates the clear terms of the statute.” (emphasis

added)); Department of Justice Statement of Interest

at 4, Thomas v. Bd. of Regents of the Univ. of Neb.,

No. 4:20-cv-03081-RFR-SMB (D. Neb. June 11, 2021)

(“Post-assault claims, like the claim in Davis, focus

on how a [federal funding] recipient responded

after it re

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