Title IX and Sexual Harassment: Private Rights of Action, Administrative Enforcement, and Proposed Regulations

Title IX and Sexual Harassment:

Private Rights of Action, Administrative

Enforcement, and Proposed Regulations

Jared P. Cole

Legislative Attorney

Christine J. Back

Legislative Attorney

April 12, 2019

Congressional Research Service

7-....

www.crs.gov

R45685

SUMMARY

Title IX and Sexual Harassment: Private Rights

of Action, Administrative Enforcement, and

Proposed Regulations

R45685

April 12, 2019

Jared P. Cole

Legislative Attorney

-re-acte--@crs.loc.gov

Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for

Christine J. Back

victims of sexual abuse and harassment at educational institutions. It bars discrimination “on the

Legislative Attorney

basis of sex” in an educational program or activity receiving federal funding. Although Title IX

-re-acte--@crs.loc.gov

makes no explicit reference to sexual harassment or abuse, the Supreme Court and federal

agencies have determined that such conduct can sometimes constitute discrimination in violation

For a copy of the full report,

of the statute; educational institutions in some circumstances can be held responsible when a

please call 7-.... or visit

www.crs.gov.

teacher sexually harasses a student or when one student harasses another. Title IX is mainly

enforced (1) through private rights of action brought directly against schools by or on behalf of

students subjected to sexual misconduct; and (2) by federal agencies that provide funding to educational programs.

To establish liability in a private right of action, a party seeking damages for a Title IX violation must satisfy the standards

set forth by the Supreme Court in Gebser v. Lago Vista Independent School District, decided in 1998, and Davis Next Friend

LaShonda D. v. Monroe County Board of Education, decided the next year. Gebser provides that when a teacher commits

harassment against a student, a school district is liable only when it has actual knowledge of allegations by an “appropriate

person,” and so deficiently responds to those allegations that its response amounts to deliberate indifference to the

discrimination. Davis instructs that, besides showing actual knowledge by an appropriate person and deliberate indifference,

a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was “so severe,

pervasive, and objectively offensive” that it denied the victim equal access to educational opportunities or benefits. Taken

together, the Supreme Court’s decisions set forth a high threshold for a private party seeking damages against an educational

institution based on its response to sexual harassment. In turn, federal appellate courts have differed in how to apply the

standards set in Gebser and Davis, diverging on the nature and amount of evidence sufficient to support a claim.

In each of the last several presidential administrations, the Department of Education (ED) issued a number of guidance

documents that instruct schools on their responsibilities under Title IX when addressing allegations of sexual harassment.

These documents—while sometimes subject to change—generally reflected a different standard than the Supreme Court case

law addressing private rights of action for damages for sexual abuse or harassment (the Court in Davis acknowledged that the

threshold for liability in a private right of action could be higher than the standard imposed in the administrative enforcement

context). Those guidance documents had, among other things, established that sometimes a school could be held responsible

for instances of sexual harassment by a teacher, irrespective of actual notice; and schools could be held responsible for

student-on-student harassment if a “responsible employee” knew or should have known of the harassment (constructive

notice). ED’s previous guidance also instructed educational institutions that they sometimes could be responsible for

responding to incidents of sexual harassment occurring off campus. ED also cautioned schools on the use of mediation to

resolve allegations of sexual harassment. With regard to the procedures used by schools to resolve sexual harassment

allegations, ED informed schools that they must use the preponderance of the evidence standard to establish culpability, and

the agency strongly discouraged schools from allowing parties in a hearing to personally cross-examine one another. In

response to guidance from ED, as well as increased oversight from the department’s Office for Civil Rights (OCR) between

2011 and 2016, schools developed several procedures to ensure that their responses to allegations of sexual harassment and

assault complied with Title IX. A number of students faced with disciplinary action by public universities raised

constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that

universities violated the Due Process Clause in handling their case.

ED issued a notice of proposed rulemaking in late 2018, after revoking some of its previous guidance to schools in 2017. The

proposed regulations would, in several ways, tether the administrative requirements for schools to the standard set by the

Supreme Court in Gebser and Davis. In doing so, the proposed regulations would depart from the standards set by ED in

previous guidance documents (some of which have since been rescinded). The new regulations would require “actual notice,”

rather than constructive notice, of harassment by an education institution to trigger a school’s Title IX responsibilities, and

provide that a school’s response to allegations of sexual harassment will violate Title IX only if it amounts to deliberate

indifference. In addition, the new regulations would more narrowly define what conduct qualifies as sexual harassment under

Title IX, and also impose new procedural requirements, which appear to reflect due process concerns, when schools

investigate sexual harassment or assault allegations and make determinations of culpability.

Congressional Research Service

Title IX and Sexual Harassment

Contents

Background ..................................................................................................................................... 1

A Private Right of Action to Enforce Title IX ................................................................................. 3

Gebser and Davis: The Supreme Court’s Title IX Liability Standard ...................................... 4

Deliberate Indifference ....................................................................................................... 6

“Actual” Notice of Discrimination by “An Appropriate Person” ....................................... 7

Student-to-Student Harassment: “Substantial Control,” “Severe, Pervasive, and

Objectively Offensive” Harassment, Denial of Educational Access ............................... 8

Federal Courts’ Application of Gebser and Davis to Title IX Claims for Sexual

Harassment or Abuse ............................................................................................................. 9

What Knowledge Gives Rise to “Actual” Notice? ........................................................... 10

Who Constitutes an “Appropriate Person”?...................................................................... 12

Deliberate Indifference: A “Clearly Unreasonable” Response ......................................... 15

Administrative Enforcement of Title IX........................................................................................ 19

1997 ED Guidance and Subsequent Supreme Court Decisions Regarding Sexual

Harassment ........................................................................................................................... 21

ED’s Guidance Documents Regarding Sexual Harassment Subsequent to Gebser and

Davis .................................................................................................................................... 23

2001 Sexual Harassment Guidance .................................................................................. 23

2011 Dear Colleague Letter Regarding Sexual Violence Between Peers ......................... 27

2014 Q&A Document: Investigating Allegations of Sexual Violence .............................. 28

Legal Challenges to University Title IX Procedures ..................................................................... 30

Due Process Clause: Background Principles .......................................................................... 30

Due Process Rights for Students at Public Universities .......................................................... 32

Due Process Challenges to Procedures Used by Public Universities in Sexual Assault

Investigations ....................................................................................................................... 34

Claims Alleging Inadequate Notice of the Charges .......................................................... 35

Claims Relating to Cross-Examination of Witnesses and Exculpatory Evidence ............ 36

Claims Alleging Biased Decisionmakers in Disciplinary Proceedings............................. 39

Claims Alleging Unfair Rehearing or Appeal Processes................................................... 40

ED’s Proposed Title IX Regulations Regarding Sexual Harassment ............................................ 41

Conduct That Constitutes Sexual Harassment Under Title IX ................................................ 42

Adopting “Actual Notice” Requirement ................................................................................. 43

Adopting the “Deliberate Indifference” Standard to Evaluate a School’s Response .............. 44

Protocols for Fact-Finding and Determining Culpability........................................................ 45

Procedures for Handling Formal Complaints ................................................................... 46

Determinations of Responsibility ..................................................................................... 47

Considerations for Congress.......................................................................................................... 48

Contacts

Author Contact Information .......................................................................................................... 49

Congressional Research Service

Title IX and Sexual Harassment

Background

Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for

victims of sexual abuse and harassment committed by professors, teachers, coaches, and others at

educational institutions.1 The statute prohibits discrimination “on the basis of sex” of any person

in an educational program or activity receiving federal funding.2 Though Title IX makes no

explicit reference to sexual abuse or harassment,3 the Supreme Court has held that a school

district can violate the statute, and be held liable for damages, based on a deliberately indifferent

response to a teacher’s sexual abuse or harassment of a student.4 The Court has also held that a

school board may be liable under Title IX for a deliberately indifferent response to student-onstudent sexual harassment.5 Meanwhile, federal agencies that administratively enforce the statute,

such as the Department of Education (ED), have also determined that educational institutions can

be held responsible for instances of sexual harassment under Title IX in certain circumstances.

Title IX is thus primarily enforced in two ways: (1) through private rights of action directly

against schools by or on behalf of students subject to such harassment in certain circumstances;6

and (2) by federal agencies that provide funding to educational programs.7

With respect to the latter enforcement prong, like several other federal civil rights statutes,8 Title

IX makes compliance with its antidiscrimination mandate a condition for receiving federal

funding in any education program or activity.9 Title IX applies to federal-funded schools at all

1 Pub. L. No. 92-318, 86 Stat. 373 (1972) (codified at 20 U.S.C. § 1681). See generally Office for Civil Rights, Dep’t of

Educ., Sex-based Harassment, https://www2.ed.gov/about/offices/list/ocr/frontpage/pro-students/issues/sexissue01.html (last visited Apr. 9, 2019) (“Title IX protects all students from sex-based harassment, regardless of the sex

of the parties, including when they are members of the same sex.”).

2 20 U.S.C. § 1681(a) (“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”). The statute defines “educational institution” as “any public or private preschool, elementary, or

secondary school, or any institution of vocational, professional, or higher education, except that in the case of an

educational institution composed of more than one school, college, or department which are administratively separate

units, such term means each such school, college, or department.” 20 U.S.C. § 1681(c). See also 34 C.F.R. § 106.2(h),

(i). For ease of reference, this report uses the terms educational institution and school interchangeably.

3 See id.

4 See Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 75 (1992) (reading Title IX to “[u]nquestionably” place on the

school district the duty not to discriminate based on sex, including in the form of a teacher’s sexual harassment of a

student) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).

5 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999).

6 The Supreme Court has interpreted Title IX to contain an implied right of action allowing aggrieved individuals to

bring suit in federal court for money damages and injunctive relief. Cannon v. Univ. of Chicago, 441 U.S. 677, 691

(1979); Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 73 (1992). Accepting federal funds in this context waives

the Eleventh Amendment immunity of states against suits from private individuals. Therefore, both state actors, such as

public universities, as well as private actors, such as a private college, who do not enjoy Eleventh Amendment

immunity, are subject to suits for damages for violations of Title IX if they receive federal education funds. See, e.g.,

Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016); Pederson v. La. State Univ., 213 F.3d 858, 875 (5th Cir. 2000)

(“We find that LSU waived its Eleventh Amendment sovereign immunity by accepting federal funds under Title IX.”).

7 It bears mention that Title IX is not the exclusive legal remedy for victims of sexual harassment in schools. 42 U.S.C.

§ 1983 provides an avenue of legal relief against state actors who deprive individuals of a constitutional right. The

Supreme Court has held that Title IX does not displace the availability of § 1983 claims based on the Equal Protection

Clause for plaintiffs alleging gender discrimination in schools. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 248

(2009). However, the subject of liability under § 1983 is beyond the scope of this report.

8 See, e.g., 29 U.S.C. §§ 791, 794; 42 U.S.C. §§ 2000d, 6101.

9 20 U.S.C. § 1681(a). Title IX contains a number of exceptions, such as exemptions for educational institutions

Congressional Research Service

1

Title IX and Sexual Harassment

levels of education.10 For instance, all public school districts receive some federal financial

assistance, as do most institutions of higher education through participation in federal student aid

programs.11 Notably, when any part of a school district or institution of higher education receives

federal funds, all of the recipient’s operations are covered by Title IX.12

The text of Title IX does not expressly mention sexual abuse or harassment, while current

regulations implementing the statute also do not explicitly address sexual harassment (although

the regulations do require schools to designate at least one employee to function as a Title IX

Coordinator).13 In each of the last several presidential administrations, however, the Department

of Education (ED) has issued guidance documents that instruct schools regarding their

responsibilities under Title IX when addressing allegations of sexual harassment.14 In response,

educational institutions have developed procedures and practices to investigate and respond to

allegations of sexual harassment and assault.15 And ED recently issued another notice of proposed

rulemaking, after having revoked some of its prior guidance to schools in 2017.16 As discussed in

this report, if adopted, the regulations would significantly change educational institutions’

responsibilities for responding to sexual harassment allegations.

To place the proposed Title IX regulations in context, this report provides background on the legal

landscape that informs the proposal. First, the report examines how federal courts have

understood Title IX’s requirements in the context of private rights of actions brought by students

directly against educational institutions seeking damages for sexual abuse or harassment. The

report continues by examining how federal agencies have enforced Title IX, with particular focus

on ED’s guidance documents that direct schools on how to respond to sexual harassment and

assault allegations. The report then considers various constitutional challenges brought by

students against public universities, which claim that some universities’ responses to allegations

controlled by a religious organization and those whose primary purpose is training for military service or the merchant

marine. Id. §§ 1681(a) (1) –(9). Employees of educational institutions are protected from sexual harassment by Title

VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e–3. Employees may also be protected by Title IX as well. See

OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., REVISED SEXUAL HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS

BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES 1 n.1 (2001), https://www2.ed.gov/about/offices/list/ocr/

docs/shguide.pdf [hereinafter 2001 GUIDANCE].

10 OFFICE FOR CIVIL RIGHTS, DEP’T OF EDUC., TITLE IX RESOURCE GUIDE (Apr. 2015),

https://www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ix-coordinators-guide-201504.pdf; 34 C.F.R. §§ 106.2(h), (i).

11 See Office for Civil Rights, Dep’t of Educ., Sex Discrimination: Frequently Asked Questions,

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/sex.html (last visited Mar. 5, 2019). Title IX applies to schools

that benefit indirectly from federal funds due to student receipt of federal financial aid, meaning that most public and

private universities are subject to Title IX’s requirements. 34 C.F.R. §§ 106.2(i), 106.4. Grove City Coll. v. Bell, 687

F.2d 684, 693 (3d Cir. 1982). See Dep’t of Justice, Civil Rights Div., Title IX Legal Manual (updated Aug. 6, 2015),

https://www.justice.gov/crt/title-ix (explaining that “this document is not intended to be a guide for Title IX

enforcement with respect to traditional educational institutions such as colleges, universities, and elementary and

secondary schools, which have been subject to the Department of Education’s Title IX regulations and guidance for 25

years. Rather, this Manual is intended to provide guidance to federal agencies concerning the wide variety of other

education programs and activities operated by recipients of federal financial assistance”).

12 20 U.S.C. § 1687;OFFICE FOR CIVIL RIGHTS, DEP’T OF EDUC., TITLE IX RESOURCE GUIDE (Apr. 2015),

https://www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ix-coordinators-guide-201504.pdf; 34 C.F.R. § 106.2(h), (i).

13 34 C.F.R. § 106.8(a).

14 See infra “Administrative Enforcement of Title IX.”

15 See Emma Ellman-Golan, Saving Title IX: Designing More Equitable and Efficient Investigation Procedures, 116

MICH. L. REV. 155, 176 (2017).

16 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,

83 Fed. Reg. 61,462 (proposed Nov. 29, 2018).

Congressional Research Service

2

Title IX and Sexual Harassment

of sexual harassment have violated the due process rights of the accused.17 With this backdrop set,

the report examines ED’s proposed regulations with an emphasis on how they would alter the

responsibilities of schools in complying with Title IX.

A Private Right of Action to Enforce Title IX

Title IX of the Education Amendments of 1972 states that “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,”18

subject to certain exemptions.19 In other words, recipients of federal funding, which administer an

educational program or activity, are prohibited from discriminating on the basis of sex.20

The statute, however, does not expressly provide for a private right of action by which victims of

sex discrimination may recover for a Title IX violation.21 Nor does the statute expressly prohibit

sexual harassment, abuse, or molestation as forms of unlawful sex discrimination, or otherwise

define unlawful sexual abuse or harassment.22 Title IX also does not delineate the circumstances

in which a school or educational program may be liable for such conduct.23

Given the absence of statutory text “to shed light on Congress’ intent,”24 federal courts have

played a primary, if not exclusive, role in establishing the remedial scheme by which victims of

sexual harassment or abuse may seek relief under Title IX through a private right of action. The

Supreme Court first interpreted Title IX to provide for a judicially implied private right of action

against a federal-funded educational institution for sexual harassment,25 and later, an implied

damages remedy in such actions.26 Since then, and in the absence of legislative amendments to

Title IX on those issues,27 the Court has also created the legal standard for establishing liability

17 Although private colleges are not subject to the requirements of the Due Process Clause of the Fourteenth

Amendment, they may, nonetheless, sometimes be subject to similar restrictions under applicable state laws. See, e.g.,

Doe v. Univ. of S. Cal., 29 Cal. App. 5th 1212, 1232 (Ct. App. 2018) (describing the principle of fundamental fairness

that must attend disciplinary decisions for college students and concluding that the university did not accord the

plaintiff a fair hearing when it expelled him for sexual misconduct).

18 20 U.S.C. § 1681(a).

19 Id. § 1681(a)(1)–(9). Exceptions include, for example, educational institutions controlled by a religious organization

“if the application of this subsection would not be consistent with the religious tenets of such organization,” and

membership practices of certain social fraternities or sororities.

20 See id.

21 See 20 U.S.C. §§ 1681–88.

22 See id.

23

See id.

24 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285 (1998).

25 Cannon v. Univ. of Chi., 441 U.S. 677, 709, 717 (1979) (concluding that the text, history, and purpose of Title IX

“counsel implication of a cause of action in favor of private victims of discrimination”; and holding that the private

plaintiff in that case could maintain her Title IX lawsuit).

26 Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 76 (1992) (concluding that “a damages remedy is available for an

action brought to enforce Title IX”).

27 See, e.g., Gebser, 524 U.S. at 290 (creating legal standard for establishing liability under Title IX for teacher-student

harassment or abuse “in the absence of further direction from Congress”).

Congressional Research Service

3

Title IX and Sexual Harassment

under Title IX for sexual abuse or harassment committed by a teacher,28 and other students.29 The

Court, and numerous federal courts of appeals, have described this judicially created liability

standard—which draws upon the “deliberate indifference” standard as applied under 42 U.S.C.

§ 198330—as a “high bar for plaintiffs to recover under Title IX.”31

Critically, in a Title IX private right of action for damages, an educational institution (or other

federally funded program or activity) is not strictly liable for a principal’s or teacher’s sexual

harassment or abuse of a student.32 In other words, the fact that sexual harassment or abuse

occurred and was committed by these individuals is not the basis for a funding recipient’s liability

under the Supreme Court’s remedial scheme.33 Rather, Title IX liability turns on the recipient’s

response to its actual knowledge of that conduct. A recipient will be liable only when its response

was so deficient as to amount to “deliberate indifference” to the alleged harassment or abuse.34

Gebser and Davis: The Supreme Court’s Title IX Liability Standard

The private right of action currently available under Title IX is one of judicial implication—that

is, the Court has interpreted the statute to imply such a right, in the absence of express statutory

language providing for it.35 A private right of action provides a personal legal remedy for victims

of sex discrimination in the form of specific relief or damages.36 In contrast, and as discussed in a

28 Id. at 290–93 (setting out legal standard and analysis for determining liability under Title IX against an educational

recipient of federal funds, for harassment by a teacher of a student, in a private right of action brought by the alleged

victim).

29 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999).

30 Gebser, 524 U.S. at 290–91 (holding that a Title IX violation for damages requires a showing of “deliberate

indifference,” and stating that “[c]omparable considerations” had also led to its “adoption of a deliberate indifference

standard for claims under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation of federal

rights was the cause of the violation”) (citing its § 1983 precedent). As general context, 42 U.S.C. § 1983 provides for a

private right of action against “those acting under color of state law for violations of federal constitutional and statutory

provisions.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007) (discussing 42

U.S.C. § 1983). To prevail on a § 1983 claim, a plaintiff, among other evidence, “must demonstrate that the municipal

action was taken with ‘deliberate indifference’ as to its known or obvious consequences.” Bd. of Cty. Com’rs of Bryan

Cty., Olk. v. Brown, 520 U.S. 397, 407 (1997). Neither “simple [n]or even heightened negligence” will suffice. Id. As

noted earlier, a victim of sexual harassment or abuse may bring both a Title IX claim and § 1983 claim seeking relief

for that misconduct. See supra note 7.

31 Davis, 526 U.S. at 643 (characterizing the “deliberate indifference” standard it had adopted in Gebser as a “high

standard” that was intended to “to eliminate any ‘risk that the recipient would be liable in damages not for its own

official decision but instead for its employees’ independent actions’” (quoting Gebser, 524 U.S. at 290–91)); Stiles ex

rel. D.S. v. Grainger Cty., Tenn., 819 F.3d 834, 848 (6th Cir. 2016) (“The deliberate indifference standard set forth in

Davis sets a high bar for plaintiffs to recover under Title IX.”); see also, e.g., I.F. v. Lewisville Indep. Sch. Dist., 915

F.3d 360, 368 (5th Cir. 2019) (“Deliberate indifference is an extremely high standard to meet.” (quoting Domino v.

Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001))); Doe v. Galster, 768 F.3d 611, 619 (7th Cir. 2014)

(“The standard of deliberate indifference sets a high bar for plaintiffs under Title VI and Title IX.”); Zeno v. Pine

Plains Cent. Sch. Dist., 702 F.3d 655, 665 (2012) (“The deliberate indifference standard outlined by the Supreme Court

in Davis v. Monroe County Board of Education is a narrow one.”); Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d

1248, 1259 (11th Cir. 2010) (stating that in the context of a private right of action under Title IX, “[d]eliberate

indifference is an exacting standard”).

32 See Gebser, 524 U.S. at 290–93.

33 See id.

34 See id.

35 See Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979) (creating private right of action for damages under Title IX,

“despite the absence of any express authorization for it in the statute”). Cf. 20 U.S.C. §§ 1681–88.

36 See Cannon, 441 U.S. at 704–05 (in analyzing whether Title IX could be interpreted to provide for an implied private

cause of action, observing that termination of funds to an agency “often may not provide an appropriate means of

Congressional Research Service

4

Title IX and Sexual Harassment

later section, administrative enforcement of the statute makes its general focus the institutional

policies and practices of the recipient educational institution.37

Two Supreme Court decisions, together, set out the requirements for establishing an educational

funding recipient’s liability under Title IX for damages for sexual abuse or harassment: Gebser v.

Lago Vista Independent School District38 and Davis Next Friend LaShonda D. v. Monroe County

Board of Education.39 The Court’s liability standard premises an institution’s Title IX liability for

sexual harassment or abuse based on the institution’s “deliberate indifference” in responding to

knowledge of that conduct.40 Thus—and critical to understanding a Title IX private right of action

for damages—an educational institution (or other federally funded program or activity) is not

strictly liable for a principal’s or teacher’s sexual harassment or abuse of a student. Indeed, the

Supreme Court in Gebser expressly rejected such arguments urging it to apply agency principles

to Title IX such that a school would be vicariously liable for such harassment.41

Instead, liability attaches only if a plaintiff establishes that the funding recipient’s response to its

“actual” knowledge of the discrimination was deliberately indifferent.42 Put another way, under

the Court’s remedial scheme, liability under Title IX is based on the funding recipient’s “own

failure to act” adequately in response to known misconduct,43 not the misconduct itself. Thus, an

institution will not be liable absent a showing of deliberate indifference, regardless of whether the

conduct committed by a principal or teacher could be characterized as egregious.44

In creating this standard in Gebser, the Court had attempted to “‘infer how the [1972] Congress

would have addressed the issue had the . . . action been included as an express provision in the’

statute.”45 That task, the Court observed, “inherently entail[ed] a degree of speculation.”46 To

accomplishing the statute’s purpose and describing a private cause of action as one that awards “individual relief to a

private litigant who has prosecuted her own suit”).

37 See id.; see also supra section “Administrative Enforcement of Title IX,” p. 18. A school’s response under Title IX

to an allegation of sexual harassment, however, may at times include accommodations that are personal to a student.

ED’s Office of Civil Rights (OCR), which has primary responsibility for administratively enforcing Title IX has

sometimes reached resolution agreements with schools that require compensatory payment of university expenses to a

complainant. See, e.g., Voluntary Resolution Agreement, Southern Methodist University, OCR Case Nos. 06112126,

06132081, and 06132088, at 15 (Nov. 16, 2014), https://www2.ed.gov/documents/press-releases/southern-methodistuniversity-agreement.pdf.

38 524 U.S. 274 (1998).

39 526 U.S. 629 (1999).

40 See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (requiring a showing that the school district

acted with “deliberate indifference” in responding to such discrimination to establish liability for damages).

41 Id. at 281–83, 285, 287–88 (discussing two arguments raised by the United States as amicus curiae, regarding the

application of common law agency principles or constructive notice as possible bases for holding a school district liable

under Title IX for sexual harassment committed by one of its teachers, and rejecting both arguments). Cf. id. at 300–01

(Stevens, J., dissenting) (with respect to agency principles, describing the majority’s refusal to apply that common law

doctrine as “a rather dramatic departure from settled law,” which the Court failed to justify).

42 See id. at 290.

43 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 645 (1999).

44 See, e.g., Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 381–82, 384, 388 (5th Cir. 2000) (finding no

Title IX liability on the part of the school district for third grade teacher’s sexual molestation of numerous male

students over a four-year period; explaining that under the Supreme Court’s “high” standard for liability, a school

district is liable for damages under Title IX only when a plaintiff can show the school district acted with deliberate

indifference in response to its knowledge of the alleged abuse).

45 Gebser, 524 U.S. at 285 (quoting Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164,

178 (1994)).

46 Id. at 284.

Congressional Research Service

5

Title IX and Sexual Harassment

inform its analysis, the Court relied significantly on the statute’s administrative enforcement

provision because, in its view, the provision “contain[ed] important clues” from which to infer

legislative intent regarding Title IX liability.47 The Court observed that, pursuant to that provision,

agencies that disburse federal funds may suspend or cut funds to a funding recipient for violating

Title IX, but only after they “ha[ve] advised the appropriate person or persons of the failure to

comply with the requirement and ha[ve] determined that compliance cannot be secured by

voluntary means.”48 Because the statute’s administrative procedure “require[s] notice to the

recipient and an opportunity to come into voluntary compliance,”49 the Court reasoned that it too

would similarly require “actual notice” to an “appropriate person” to establish liability for

damages in a private right of action under Title IX.50

The Court also concluded that a recipient would be liable under Title IX only where a school

official responds to that “actual” notice so deficiently that its response amounts to “deliberate

indifference.”51 In so holding, the Court again looked to Title IX’s administrative enforcement

scheme and observed that it “presupposes that an official who is advised of a Title IX violation

refuses to take action to bring the recipient into compliance.”52 The Court found “a rough parallel

in the standard of deliberate indifference,” from case law arising under 42 U.S.C. § 1983

addressing claims “alleging that a municipality’s actions in failing to prevent a deprivation of

federal rights” caused a violation.53

The Court thus held that “[u]ntil Congress speaks directly on the subject . . . we will not hold a

school district liable in damages under Title IX for a teacher’s sexual harassment of a student

absent actual notice and deliberate indifference”54—a conclusion that elicited a strong dissent.55

Deliberate Indifference

Deliberate indifference is a “high standard,” as described by the Supreme Court in Davis,56 and

must “at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or

–90 (discussing 20 U.S.C. 1682). Cf. id. at 303–04 (Stevens, J., dissenting) (contending that the fact that

Congress specified an agency enforcement process “does not illuminate the question” of the proof a victim of

harassment or abuse must establish in an implied private right of action under Title IX).

48 Id. at 288 (quoting 20 U.S.C § 1682).

49 Id. at 289.

50 Id. at 290–91 (“Because the express remedial scheme under Title IX is predicated upon notice to an ‘appropriate

person’ and an opportunity to rectify any violation, 20 U.S.C. § 1682, we conclude, in the absence of further direction

from Congress, that the implied damages remedy should be fashioned along the same lines.”). See also id. at 287 (also

stating that because Title IX was enacted pursuant to Congress’s spending power, its “central concern” in such contexts

is the funding recipient’s awareness of the unlawful condition for which it is liable for monetary damages).

51 Id. at 290 (discussing its earlier adoption of the “deliberate indifference” standard to § 1983 claims challenging a

locality’s failure to prevent a deprivation of federal rights) (citing Bd. of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397

(1997); Canton v. Harris, 489 U.S. 378, 388–92 (1989); Collins v. Harker Heights, 503 U.S. 115, 123–24 (1992)).

52

Gebser, 524 U.S. at 290.

53 Id. at 290–91 (also stating its view that “[u]nder a lower standard, there would be a risk that the recipient would be

liable in damages not for its own official decision but instead for its employees’ independent actions.”).

54 Id. at 292–93.

55 See id. at 293, 304 (Stevens, J., dissenting, joined by Justices Souter, Ginsburg, and Breyer) (stating that the

majority’s “assertion of lawmaking authority is not faithful either to our precedents or to our duty to interpret, rather

than to revise, congressional commands” and characterizing the legal standard created by the majority as “an

exceedingly high standard” few victims of intentional discrimination will be able to meet).

56 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 643 (1999).

47 Id. at 288

Congressional Research Service

6

Title IX and Sexual Harassment

vulnerable’ to it.”57 Notably, the “deliberate indifference” standard does not require funding

recipients to “remedy” the harassment.58 Rather, under Davis, a recipient’s response to

harassment will amount to deliberate indifference only if it is “clearly unreasonable in light of the

known circumstances.”59 Because this standard is not “a mere ‘reasonableness’ standard,”60 a

plaintiff must show more than the unreasonableness of a funding recipient’s response to sexual

abuse or harassment. The plaintiff must show that the recipient was clearly unreasonable in its

response.61 Accordingly, a funding recipient is not liable under Title IX if it responds to sexual

abuse or harassment “in a manner that is not clearly unreasonable.”62

In addition to the requisite showing of “deliberate indifference,” the Court’s standard also

requires a plaintiff to establish other threshold showings to prevail in a Title IX suit for

damages—both before reaching the question of “deliberate indifference” and after establishing

“deliberate indifference” on the part of the school or entity.

“Actual” Notice of Discrimination by “An Appropriate Person”

Before reaching the issue of whether a funding recipient acted with “deliberate indifference,”

Gebser requires that a plaintiff establish that “an appropriate person” at the funding recipient had

“actual knowledge of discrimination.”63 Failure to show either “actual” notice or that such notice

was provided to “an appropriate person” of the funding recipient may constitute the sole basis for

a court’s dismissal of a Title IX claim seeking damages for sexual harassment or abuse.64 An

“appropriate person,” under Gebser, is “an official who at a minimum has authority to address the

alleged discrimination and to institute corrective measures on the recipient’s behalf.”65 As

57 Id. at 645 (quoting definitions of “subject” from the RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1415

(1966) and WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2275 (1961)). See also, e.g., Hill v. Cundiff, 797 F.3d

948, 973 (11th Cir. 2015) (“A clearly unreasonable response causes students to undergo harassment or makes them

more vulnerable to it.”).

58 See Davis, 526 U.S. at 648 (rejecting the dissent’s “mischaracterize[ation]” that the standard requires funding

recipients to remedy peer harassment). See, e.g., Gabrielle M. v. Park Forest-Chicago Heights, IL. Sch. Dist. 163, 315

F.3d 817, 824 (7th Cir. 2003) (“According to Davis, this is not a mere reasonableness standard, nor does it require

funding recipients to remedy peer harassment.”); Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir.

2000) (“The recipient is not required to ‘remedy’ sexual harassment nor ensure that students conform their conduct to

certain rules . . . .”) (citing Davis, 526 U.S. at 648–49).

59 Davis, 526 U.S. at 648 (emphasis added).

60 Id. at 649.

61 Id.

62 Id.

63 See, e.g., J.F.K. v. Troup Cty. Sch. Dist., 678 F.3d 1254, 1260 (11th Cir. 2012) (“The first step for the Appellants to

defeat summary judgment as to their Title IX claim is to identify a person with the authority to take corrective measures

in response to actual notice of sexual harassment.”).

64 See, e.g., P.H. v. Sch. Dist. of Kansas City, Mo., 265 F.3d 653, 659–60 (8th Cir. 2001) (though it was undisputed that

the teacher had engaged in “persistent and ongoing” sexual abuse of his student for two years, dismissing Title IX

claim in the absence of evidence creating a triable issue that the school district had actual notice of the conduct);

Baynard v. Malone, 268 F.3d 228, 239 (4th Cir. 2001) (dismissing Title IX claim seeking damages for sexual

molestation committed by a sixth grade teacher, because plaintiff failed to show “actual notice” by an “appropriate

person”).

65 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). Cf. id. at 300–01, 303–04 (Stevens, J., dissenting)

(contending that the requirement of “actual” notice by an appropriate person incentivizes behavior by school districts to

“insulate themselves from knowledge” concerning sexual harassment or abuse and would preclude liability even if all

teachers knew about harassment but lacked the authority to constitute “an appropriate person”).

Congressional Research Service

7

Title IX and Sexual Harassment

discussed later in this report, what constitutes “actual” notice, and who may constitute an

“appropriate person,” have caused substantive splits among the circuits.66

Student-to-Student Harassment: “Substantial Control,” “Severe, Pervasive,

and Objectively Offensive” Harassment, Denial of Educational Access

Even where “deliberate indifference” is established, the Supreme Court’s liability standard further

requires a plaintiff alleging student-to-student or peer harassment to make several additional

showings: (1) that a funding recipient exercised “substantial control” over the harasser and the

context in which the harassment occurred;67 (2) that the harassment itself was “severe, pervasive,

and objectively offensive”;68 and (3) the denial of educational access resulting from the

harassment.69

With respect to “substantial control,” Davis limits a school’s liability for damages to

circumstances in which the funding recipient exercised “substantial control” over the harasser and

in which the harassment took place in a context subject to the recipient’s control.70 If “the

harasser is under the school’s disciplinary authority,” a recipient of federal funding may be liable

for its deliberate indifference to the harassment,71 as the Court in Davis particularly emphasized

the recipient’s authority to take “remedial action” against the harassment.72 As for “substantial

control” over the environment, “the harassment must take place in a context subject to the school

district’s control.”73

As to the nature of the sexual harassment itself, Davis requires that the plaintiff show that the

conduct “is so severe, pervasive, and objectively offensive, and [] so undermines and detracts

from the victims’ educational experience, that the victim-students are effectively denied equal

access to an institution’s resources and opportunities.”74 Whether the conduct rises to this level

depends, as the Court stated in Davis, “on a constellation of surrounding circumstances,

expectations, and relationships,”75 “including, but not limited to, the ages of the harasser and the

victim and the number of individuals involved.”76

66 See supra section “Federal Courts’ Application of Gebser and Davis to Title IX Claims for Sexual Harassment or

Abuse,” pp. 9–18.

67 Davis, 526 U.S. at 645–46.

68 Id. at 650–51.

69 Id. at 652–53.

70 Id. at 644–47 (discussing the limitation of a recipient’s liability based on whether it exercises “substantial control

over both the harasser and the context in which the known harassment occurs”).

71 Id. at 646–47.

72 Id. at 644 (“A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial

action.”).

73 Id. at 645 (emphasis added). The Court pointed to the allegations in Davis as one example of misconduct occurring in

a context in which the school district exercised substantial control: the harassment “occur[ed] during school hours and

on school grounds,” with much of the alleged harassment occurring in the classroom. See id. at 646.

74 Id. at 651. Cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993) (discussing actionable harassment under Title

VII of the Civil Rights Act, which will violate the statute if sufficiently “severe or pervasive”) (emphasis added);

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

75 Davis, 526 U.S. at 651 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)) (internal

quotation marks omitted).

76 Id.

Congressional Research Service

8

Title IX and Sexual Harassment

Finally, for harassment to have sufficiently affected the victim’s education, the Court in Davis

made two additional observations. On the one hand, the Court noted that evidence of a decline in

the victim’s grades—as was alleged there—“provides necessary evidence of a potential link

between her education” and the alleged harassment.77 Yet, the Court also concluded that

harassment is actionable under Title IX only when it is “serious enough to have the systemic

effect of denying the victim equal access to an educational program or activity.”78 Without

defining what might constitute a “systemic effect,” the Court offered one example of harassment

that does not have such effect: “a single instance” of harassment, even when “sufficiently

severe.”79

Federal Courts’ Application of Gebser and Davis to Title IX Claims

for Sexual Harassment or Abuse

The Supreme Court’s Gebser and Davis decisions establish that a school or other educational

program that receives federal funding will be liable under Title IX for damages for the sexual

abuse or harassment of a student only if it acted with “deliberate indifference” in its response to

known discrimination.80 Deliberate indifference, the Fifth Circuit81 has recently observed, “‘is an

extremely high standard to meet.’”82

Applying this and other components of the Supreme Court’s Title IX liability standard, lower

federal courts have varied in their formulations of the evidence required to prove a Title IX claim.

Some courts, for example, have interpreted Gebser and Davis to adopt a “hostile environment”

analysis of Title IX claims alleging teacher-to-student harassment, in light of precedent analyzing

harassment claims in the workplace context under Title VII of the Civil Rights Act.83 Meanwhile,

77 Id. at 652. The Court went on to hold that the complaint had sufficiently alleged “that the harassment had a concrete,

negative effect on [the victim]’s ability to receive an education”—at least to survive a motion to dismiss. Id. at 654.

78 Id. at 652–53 (emphasis added). See also id. at 653 (indicating that it was “limiting private damages actions to cases

having a systemic effect on educational programs or activities”).

79 Id. at 652–53. The Court based this conclusion on its view that it was “unlikely that Congress would have thought

such behavior sufficient to rise to this level.” Id. (citing “the inevitability of student misconduct and the amount of

litigation” that would result, as support for its conclusion that Congress would not have intended statutory coverage of

a single, sufficiently severe, act of sexual harassment). See, e.g., K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1059

(8th Cir. 2017) (affirming dismissal of a Title IX complaint, including on the basis that because the plaintiff alleged “a

single sexual assault,” she did not sufficiently plead actionable peer harassment under Title IX).

80 Davis, 526 U.S. at 633; Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

81 This report refers to a significant number of decisions by federal appellate courts of various circuits. For purposes of

brevity, a reference to a particular circuit in the body of this report (e.g., the Fifth Circuit) refers to the U.S. Court of

Appeals for that particular circuit.

82 I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 368 (5th Cir. 2019) (“Deliberate indifference is an extremely high

standard to meet.” (quoting Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001))).

83 See generally, Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200. 204–06 (3d Cir. 2001) (discussing Title IX liability

for sexual harassment in a private right of action and stating that “[t]he concept of ‘hostile environment’ harassment

originated in a series of Title VII cases involving sexual harassment in the workplace”). See, e.g., Jennings v. Univ. of

North Carolina, 482 F.3d 686, 696–700 (4th Cir. 2007) (en banc) (in Title IX claim alleging sexual harassment by

college soccer coach of female players, analyzing whether the harassment was “sufficiently severe or pervasive to

create a hostile or abusive environment” and whether that “severe and pervasive sexual harassment concretely and

negatively affected her ability to participate in the soccer program”); Hayut v. State Univ. of N.Y., 352 F.3d 733,

737–38 (2d Cir. 2003) (in Title IX claim alleging sexual harassment by a professor, requiring plaintiff to establish that

the professor’s conduct created a hostile “educational environment” that deprived her of access to educational

opportunities or benefits, and that one or more of the individual defendants with the “‘authority to address the alleged

discrimination and to institute corrective measures’ [on the plaintiff’s] behalf, had ‘actual knowledge of [the]

discrimination . . . and fail[ed] adequately to respond’”) (internal citations omitted). But see Sauls v. Pierce Cty. Sch.

Congressional Research Service

9

Title IX and Sexual Harassment

other federal courts have focused their teacher-to-student analysis on whether a plaintiff has

established the following elements:







“actual” notice of discrimination;

by an “appropriate person” authorized to take corrective measures; and

“deliberate indifference” by the funding recipient in response to known

discrimination.84

Where a Title IX claim alleges sexual harassment or assault committed by a student against

another student, courts have additionally required the plaintiff to establish that:







the harassment was “so severe, pervasive, and objectively offensive”;

the “victim-students [were] effectively denied equal access to an institution’s

resources and opportunities”;85 and

the recipient exercised “substantial control” over the harasser and the context in

which the harassment occurred.86

As discussed in further detail below, federal courts of appeals vary—and at times directly

conflict—regarding the evidence sufficient to satisfy these elements. Failure to satisfy any one of

the elements may be the sole basis for dismissal of a Title IX claim.87

What Knowledge Gives Rise to “Actual” Notice?

Under Gebser, a plaintiff must show that the funding recipient had “actual” notice of the

discrimination;88 therefore, it is not enough to present evidence that a funding recipient

reasonably should have known about the alleged sexual misconduct.89 Under the standard, then,

what type of allegations reported to a school give rise to “actual” notice? Is it enough, for

Dist., 399 F.3d 1279, 1284 (11th Cir. 2005) (holding that it was error for the district court to additionally require that a

plaintiff alleging teacher-student harassment under Title IX establish that the harassment was sufficiently severe).

84 Gebser, 524 U.S. at 277 (in instances of teacher-student harassment, holding that a Title IX claim will not prevail

“unless an official of the school district who at a minimum has authority to institute corrective measures on the

district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.”). See, e.g., Doe v. St.

Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012) (“The plaintiff must prove that ‘an official of the school district

who at a minimum has authority to institute corrective measures . . . has actual notice of, and is deliberately indifferent

to, the teacher’s misconduct.’”) (citing Gebser, 524 U.S. at 277).

85 Davis, 526 U.S. at 651 (holding that “a plaintiff must establish sexual harassment of students that is so severe,

pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that

the victim-students are effectively denied equal access to an institution’s resources and opportunities”). See, e.g.,

Gabrielle M., 315 F.3d at 823 (stating that a Title IX action requires a showing that “the behavior at issue denies a

victim equal access to education” and listing as examples “dropping grades,” “becoming homebound or hospitalized

due to harassment” or physical violence) (citing cases).

86 Davis, 526 U.S. at 645 (liability for damages is limited to circumstances “wherein the recipient exercises substantial

control over both the harasser and the context in which the known harassment occurs”). See, e.g., Feminist Majority

Found. v. Hurley, 911 F.3d 674, 687–88 (4th Cir. 2018) (discussing requisite “substantial control” and explaining that

the analysis, among other features, “requires us to consider the educational institution’s control over the harasser,

especially its ‘disciplinary authority’”).

87 See, e.g., Salazar v. S. San Antonio Indep. Sch. Dist., 690 F. App’x 853, 854–56 (5th Cir. 2017) (dismissing Title IX

claim on the basis that the actual notice element had not been satisfied).

88 See Gebser, 524 U.S. at 277.

89 See, e.g., P.H. v. Sch. Dist. of Kansas City, Mo., 265 F.3d 653, 663 (8th Cir. 2001) (“The Supreme Court has refused

to impose Title IX liability in situations where the school district failed to react to teacher-student harassment of which

it should have known.”) (citing Davis, 526 U.S. at 642).

Congressional Research Service

10

Title IX and Sexual Harassment

example, if a funding recipient has actual knowledge of a “substantial risk of abuse”?90 Does it

require knowledge of specific allegations of harassment or abuse91 or—perhaps most narrowly—

require knowledge of “severe, pervasive, and objectively offensive” conduct?92 Meanwhile, if a

school is notified of a perpetrator’s previous acts of sexual harassment or abuse, may that

constitute actual notice of that individual’s conduct as to others?

Federal courts differ93 on these questions of actual notice, with some courts further differentiating

between evidence that establishes actual notice of a teacher’s sexual abuse versus actual notice of

sexual violence or harassment committed by a student.94 As reflected below, which standard a

court applies to evaluate “actual notice” is determinative—the claim may either proceed to the

next phase of the analysis or be foreclosed altogether.

In Doe v. School Board of Broward County,95 the Eleventh Circuit addressed the question of

whether complaints of two separate students about the same teacher were “sufficient in substance

to alert [the principal] to the possibility” of that teacher’s sexual assault of a third student.96 The

court held in the affirmative, emphasizing the similarity between the two preceding reports,

which alleged multiple occasions of the teacher’s propositions for sex and dates, sexual touching,

and sexual comments about their bodies.97 These reports, the court held, raised a triable issue that

the principal had actual notice “of a pattern of harassment.”98 And where the analysis of “actual

90 See, e.g., K.T. Culver-Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017) (describing its precedent as requiring a

plaintiff to show that the funding recipient had actual knowledge of a “substantial risk” of harassment). Cf. Doe v. St.

Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012) (discussing earlier precedent stating that actual notice requires

“‘actual knowledge of misconduct, not just actual knowledge of the risk of misconduct’”) (emphasis added). See also,

e.g., I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 372–73 (5th Cir. 2019) (concluding that the school district had

actual notice of the alleged sexual assaults and cyberbullying, where the evidence reflected that the principal and

assistant principal had actual knowledge of those particular allegations). But see Kelly v. Allen Indep. Sch. Dist., 602

F. App’x 949, 953 (5th Cir. 2015) (describing requisite showing as the funding recipient’s knowledge of facts that

would permit the inference that the student faced a “substantial risk” of serious harm or harassment).

91 See, e.g., Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89–90 (2d Cir. 2011) (holding that

evidence created triable issue that college had actual notice of a professor’s alleged sexual advances and harassment; in

its analysis, citing among other evidence, that the plaintiff had provided “detailed” information regarding the conduct).

Cf. Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 457 (8th Cir. 2009) (holding that complaints of teacher’s prior

conduct were too “vague” to support a finding of actual knowledge of teacher’s sexual harassment of plaintiff).

92 See Hill v. Cundiff, 797 F.3d 948, 963, 969–70 (11th Cir. 2015) (rejecting the argument that knowledge of a

substantial risk of harassment is sufficient; rather, holding that “a Title IX plaintiff must prove the funding recipient

had actual knowledge that the student-on-student sexual harassment was severe, pervasive, and objectively offensive”

and concluding that a reasonable jury could find in favor of the plaintiff on the school board’s actual notice in that

case).

93 See supra notes 86–88. See also, e.g., Escue v. N. Okla. Coll., 450 F.3d 1146, 1154 (10th Cir. 2006) (“Lower courts

differ on whether notice sufficient to trigger liability may consist of prior complaints or must consist of notice

regarding current harassment in the recipient’s programs.”) (citing and discussing cases).

94

Cf., e.g., Hill, 797 F.3d at 969 (in a case involving student-to-student assault, requiring evidence showing a

recipient’s actual knowledge that the harassment was “severe, pervasive, and objectively offensive”); Doe v. Sch. Bd.

of Broward Cty., Fla., 604 F.3d 1248, 1258–59 (11th Cir. 2010) (in a case involving teacher-to-student sexual assault,

approvingly discussing cases in which actual notice was established by the funding recipient’s knowledge that a teacher

poses a “substantial risk” of sexual abuse).

95 604 F.3d 1248 (11th Cir. 2010).

96 Broward Cty., 604 F.3d at 1250 n.1.

97 Id. at 1258–59.

98 Id. at 1259.

Congressional Research Service

11

Title IX and Sexual Harassment

notice” looks to knowledge of the risk of sexual abuse or harassment, the court further observed,

“lesser harassment may [] provide actual notice of sexually violent conduct.”99

In Baynard v. Malone, however, the Fourth Circuit held that the school principal had no “actual”

notice that a sixth grade teacher was sexually abusing a student in his class,100 despite receiving

multiple prior reports that he molested children. There, the evidence reflected that before the

plaintiff started sixth grade at the school, the principal had met with one of this teacher’s former

students, who reported that he had been sexually molested by the teacher while in the sixth grade,

warned that the teacher was a pedophile, and that the principal should watch for certain

behaviors.101 In addition, another teacher at the school told the principal about allegations that this

teacher sexually molested children.102 Separately, the school librarian reported to the principal

that she had walked in on the teacher with the plaintiff sitting in his lap, with his arm around the

student, and their faces very close together, and that when the teacher saw her, he jumped up and

the plaintiff fell to the floor.103 In relaying the incident, the librarian told the principal the

behavior had been “inappropriate.”104 Though the court noted that the principal “certainly should

have been aware of the potential for abuse,” it held that there was “no evidence in the record to

support a conclusion that [the principal] was in fact aware that a student was being abused.”105

The court dismissed the Title IX claim on the basis that no appropriate person had actual notice of

the abuse of the plaintiff student.106

As the above cases reflect, in the absence of a clear definition—either in the statute or from the

Supreme Court—courts vary with respect to the nature, specificity, and frequency of allegations

sufficient to constitute “actual” notice for the purpose of satisfying the first prong of the analysis

for Title IX liability for sexual abuse or harassment.

Who Constitutes an “Appropriate Person”?

The Supreme Court’s liability standard for Title IX not only requires actual notice, but also that

this notice be made to “an appropriate person”—that is, “an official who at a minimum has

authority to address the alleged discrimination and to institute corrective measures on the

recipient’s behalf.”107 Generally, federal appellate case law reflects that rather than treating an

individual’s title as dispositive,108 courts engage in fact-specific determinations that appear to

99 Id. at 1258.

100 Baynard v. Malone, 268 F.3d 228, 238 (4th Cir. 2001). The plaintiff alleged that Lawson molested him from when

he was in the sixth grade until he was a freshman in college. Id. at 234. The alleged abuse occurred on school grounds,

before, during, and after school, and at the teacher’s home. Id. at 233.

101 Id. at 233.

102 Id.

103 Id.

104 Id.

105 Id. at 238.

106 See id. at 238–39. Cf. id. at 235–36 (in analyzing the same evidence and allegations at issue in the plaintiff’s Title

IX claim, holding that for the purposes of the plaintiff’s § 1983 claim, the evidence would allow a reasonable jury to

conclude that the principal had “at least constructive knowledge of an unreasonable risk of constitutional injury” to

students).

107 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

108 See, e.g., Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1256 (11th Cir. 2010) (noting that “that the ultimate

question of who is an appropriate person is ‘necessarily a fact-based inquiry’ because ‘officials’ roles vary among

school districts’”).

Congressional Research Service

12

Title IX and Sexual Harassment

focus principally on whether an individual had the ability to halt or address the misconduct109 or

whether the individual occupied a position high enough within the hierarchy of the funding

recipient to be fairly said to act in a representative capacity for the recipient.110

Because the Court’s opinions in Gebser and Davis do not clearly delineate which individuals may

constitute “appropriate person[s],”111 federal courts have reached varying—and at times

conflicting—determinations.

In the elementary or secondary school context, for example, courts vary as to which individuals—

a principal, teacher,112 or guidance counselor113—have the requisite “authority to address the

alleged discrimination” and “institute” corrective action to constitute “an appropriate person.”114

Some federal courts of appeals have held that a public school principal may—but not always—

constitute “an appropriate person.”115 In Warren ex rel. Good v. Reading School District,116 the

Third Circuit held, in a Title IX case alleging sexual abuse by a fourth grade teacher,117 that the

school principal was an “appropriate person” in light of her authority to investigate a teacher’s

misconduct, which in turn implied her authority to “initiate” corrective measures such as

reporting her findings to the school board.118 The Fourth Circuit, however, reached the opposite

109 See, e.g., Plamp v. Mitchell Sch. Dist. No. 17-2, 565 F.3d 450, 458 (8th Cir. 2009) (holding that evidence was

insufficient to establish that a school guidance counselor constituted an “appropriate person,” citing the absence of

evidence to indicate that counselor could suspend the teacher engaging in the sexual abuse, “curtail[]” his teaching or

other “school-related privileges,” or “requir[e] him to attend sessions or meetings about his behavior”).

110 See, e.g., Hill v. Cundiff, 797 F.3d 948, 956, 959–63, 971 (11th Cir. 2015) (in holding that teacher’s aide was not an

“appropriate person” for the purpose of reporting student-to-student harassment or assault, stating that “she was not

high enough on the chain-of-command” for her acts to constitute an official decision by the school district).

111 See, e.g., Hawkins v. Sarasota Cty. Sch. Bd., 322 F.3d 1279, 1287 (11th Cir. 2003) (“In Davis, the Supreme Court

majority did not directly address who must have notice even in the face of Justice Kennedy’s dissent, and there is scant

persuasive authority from the other circuits”) (emphasis added); Broward Cty., 605 F.3d at 1254–55 (“The Supreme

Court has not clearly delineated which school officials are appropriate persons for purposes of Title IX actual notice.”).

112 Cf., e.g., Plamp, 565 F.3d at 457–59 (in Title IX claim alleging a teacher’s sexual harassment of his student,

rejecting argument that other teachers in that case were “appropriate person[s]” based on their role as mandatory

reporters of sexual misconduct and in light of their ability to institute corrective measures; stating, among other

reasons, that it would be contrary to Title IX’s purposes to hold that the duty of school staff to report potential

discrimination “amount[s] to an authority to take a corrective measure or institute remedial action within the meaning

of Title IX”); Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1243–44, 1248 (10th Cir. 1999) (in Title IX

claim alleging that student had sexually assaulted and battered another, stating that teachers could possibly constitute

“appropriate persons” if the misconduct, for example, occurred during school hours on school grounds).

113 See, e.g., Plamp, 565 F.3d at 458 (holding that guidance counselor did not constitute an “appropriate person,” in the

absence of evidence that the counselor could take corrective action with respect to the teacher, such as suspending him

or requiring him to attend training); Warren ex rel. Good v. Reading Sch. Dist., 278 F.3d 163, 173–74 (3d Cir. 2002)

(holding that evidence was “clearly insufficient” in that case to create a triable issue that the guidance counselor was an

“appropriate person”; stating that though the counselor “handled referrals of abuse and assumed the role of principal”

in the principal’s absence, the counselor was not acting as a principal when he became aware of the teacher’s alleged

sexual abuse of his student).

114

See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

115 Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1256 (11th Cir. 2010) (citing cases and stating that “the

majority of our sister circuits addressing the issue have interpreted the Gebser and Davis opinions as standing for the

proposition that at least in some circumstances, if not generally, a principal enjoys ample authority to ‘take corrective

measures’ in response to allegations of teacher or student sexual harassment”).

116 278 F.3d 163 (3d Cir. 2002).

117 Id. at 164–65.

118 Id. at 172–73 (also citing testimony reflecting that the principal “was in charge of every aspect of the daily

operations” of the elementary school, including the supervision and discipline of teachers).

Congressional Research Service

13

Title IX and Sexual Harassment

conclusion in Baynard v. Malone,119 holding that the principal—despite being responsible for

supervising and evaluating teachers—was not an “appropriate person.”120 The court emphasized

that the principal could not “be considered the functional equivalent of the school district” and

lacked the authority to “hire, fire, transfer, or suspend teachers.”121

Meanwhile, at least one federal court of appeals has held that a principal who engages directly in

sexual abuse or harassment may not constitute an “appropriate person.” In Salazar v. South San

Antonio Independent School District, the Fifth Circuit interpreted Gebser122 to hold that where a

school official sexually abuses a student, he or she cannot be considered an “appropriate person,”

even if he would otherwise constitute an “appropriate person.”123 That case involved allegations

that a vice principal, who later became principal, sexually abused a student from his third grade to

seventh grade year.124 Though “uncontroverted testimony at trial” established that the school

official had corrective authority to address sexual harassment during the time he molested the

plaintiff, the Fifth Circuit reasoned that it was “highly unlikely” that he would take corrective

measures or report his own behavior so as to provide actual notice to the funding recipient.125 The

court further rejected the argument that the principal’s abuse should be treated as an official

action of the school district for Title IX liability purposes, given the Supreme Court’s rejection of

agency principles to Title IX.126 The Fifth Circuit concluded that the “goals and purpose” of Title

IX “would not be accomplished or effectuated by permitting damage awards” in such

circumstances.127

In the higher education context, federal courts of appeals have engaged in similarly fact-specific

analyses to determine whether a university employee—for example, a college dean,128 university

counsel,129 or athletics director130—constitutes an “appropriate person” for the purposes of a Title

119 268 F.3d 228 (4th Cir. 2001).

120 Id. at 239.

121 Id. at 238–39 (also stating its agreement “with the Fifth Circuit that whether a supervisory employee may be viewed

as the proxy of the school district depends upon whether the district has delegated to that employee the traditional

powers of an employer, e.g., the authority to hire and terminate employees”).

122 Salazar v. S. San Antonio Indep. Sch. Dist., 690 F. App’x. 853, 857 (5th Cir. 2017) (concluding that the statement in

Gebser regarding actual notice by a wrongdoer “was part of the Supreme Court’s holding in Gebser, not dicta”). See

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998) (in response to the dissenting opinion’s assertion that

the teacher who engaged in sexual abuse had knowledge of his own actions, stating that “the knowledge of the

wrongdoer himself is not pertinent to the analysis” of actual notice).

123 Salazar, 690 F. App’x at 854–55 (“We conclude that the judicially implied private right of action under Title IX

does not impose liability on a school district when the only employee or representative of the district with actual

knowledge of the molestation was the perpetrator himself, even if the perpetrator had authority to institute corrective

measures on behalf of the district to end discrimination by other individuals or in the school’s programs.”).

124 Id. at 855.

125 Id. at 858–59.

126 Id. at 859–60.

127 Id. at 862–63.

128 See, e.g., Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89–90 (2d Cir. 2011) (analyzing

whether student’s report of harassment to a dean of the college constituted actual notice to the college).

129 See, e.g, Jennings v. Univ. of N.C., 482 F.3d 686, 700–01 (4th Cir. 2007) (en banc) (holding that evidence was

sufficient to establish that the university had actual notice of sexual harassment, where the plaintiff reported the

conduct to the assistant to the chancellor, who was also counsel to the university).

130 See, e.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1294–95 (11th Cir. 2007) (analyzing

whether the university’s president and the university’s athletic director were “appropriate persons”); Simpson v. Univ.

of Colo. Boulder, 500 F.3d 1170, 1184–85 (10th Cir. 2007) (emphasizing the actual knowledge of the head coach of the

university’s football team, of the sexual assaults occurring during the recruitment of college football players, and noting

Congressional Research Service

14

Title IX and Sexual Harassment

IX private right of action. The analyses in these cases appear to emphasize evidence relating to

the individual’s ranking in the university hierarchy, responsibilities involving receiving

allegations of harassment, and ability to correct or halt the misconduct.131

Yet, even when there arguably is such evidence, it may not be sufficient to render that individual

an “appropriate person.” In Ross v. University of Tulsa, for example, the Tenth Circuit held that

campus security officers were not “appropriate person[s]” through whom the university could

have actual notice of an on-campus sexual assault.132 The court rejected the contention that the

officers’ mandatory reporting of sexual assaults to university personnel rendered them

“appropriate person[s],” instead likening mandatory reporting to a “clerical act” rather than taking

corrective action.133 The court also rejected the argument that the officers’ participation in

investigations of campus violence rendered them “appropriate person[s],” as that contention, as

presented, “would assume that anyone participating in the initiation of a corrective process” is an

“appropriate person.”134

Given the variability of courts’ analyses as to who may constitute an “appropriate person,” it is

unlikely that a school’s or university’s Title IX Coordinator will categorically constitute an

“appropriate person.”135 Rather, as reflected in the above decisions, a court’s determination—

based on the legal standard set out in Gebser—will likely depend on the characteristics it finds

indicative of an “appropriate person” and the evidence relating to the individual’s responsibilities

in that institution.

Deliberate Indifference: A “Clearly Unreasonable” Response

As discussed earlier, after establishing “actual notice” of the discrimination to an “appropriate

person,” a plaintiff must additionally prove that the funding recipient acted with deliberate

indifference in its response—that is, that the entity acted in a manner that was “clearly

unreasonable in light of the known circumstances.”136 Federal appellate courts interpret this

standard to require more than a showing that the school or institution failed to respond or act

that his rank in the university hierarchy “was comparable to that of a police chief in a municipal government”).

131 See, e.g., Papelino, 633 F.3d at 89–90 (in concluding that the college had actual notice of a professor’s sexual

harassment, citing evidence that the dean to whom the student reported the harassment was “a high-ranking member of

the College’s administration who was ‘responsible for the administration of the Student Code’”); Jennings, 482 F.3d at

700–01 (en banc) (holding that evidence was sufficient to establish that the university had actual notice, where the

student reported coach’s sexual harassment to the assistant to the chancellor, who was also the University’s “highest

ranking lawyer” and responsible for “fielding sexual harassment complaints”); Williams, 477 F.3d at 1294–95 (holding

that plaintiff had sufficiently pled facts that the university president and athletic director were both “appropriate

person[s],” where it was undisputed that both officials had “the authority to take corrective measures” for the university

and its athletics program “to end the alleged discrimination”).

132 859 F.3d 1280, 1289–92 (10th Cir. 2017) (rejecting several arguments asserting that campus security officers

constitute “appropriate person[s]”). In that case, two students called campus security to report that their friend had been

sexually assaulted, after which the officers contacted the plaintiff and she reported the alleged rape directly to them. Id.

at. 1284–86.

133 Id. at 1289–90.

134 Id. at 1291. The court declined to address the question of whether an investigation itself is a “form of corrective

action” that might render campus police an “appropriate person,” on the basis that the plaintiff’s argument on this point

had been “perfunctory.” See id. The court noted, however, that its holding was “limited to the evidence and arguments

before us,” and did not “foreclose consideration of campus-security officers as appropriate persons.” Id. at 1292 n. 9.

135 See, e.g., Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1256 (11th Cir. 2010) (noting that “that the ultimate

question of who is an appropriate person is ‘necessarily a fact-based inquiry’ because ‘officials’ roles vary among

school districts’”).

136 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 648 (1999) (emphasis added).

Congressional Research Service

15

Title IX and Sexual Harassment

reasonably, or was negligent.137 Nor is a school required to remedy the harassment to avoid

liability in a private right of action based on “deliberate indifference.”138

In these highly fact-intensive analyses, courts examine the nature of the allegations the funding

recipient had knowledge of, and what actions the recipient took, if any, in response to that

information to determine whether the response was so “clearly unreasonable” as to amount to

“deliberate indifference” to the alleged sexual harassment or abuse.139 The clearest cases of

“deliberate indifference” generally concern evidence that the recipient made no effort to respond

at all to “actual” notice of sexual harassment or abuse.140 Evidence of such circumstances might

include, for example, a funding recipient’s failure to initiate an investigation into serious

allegations,141 or take any disciplinary actions in light of repeated reports of sexual harassment.142

Where there is evidence that the funding recipient responded in some manner, however, federal

case law reflects what appear to be divergent and variable analyses as to whether a response is so

deficient as to amount to deliberate indifference. Federal appellate courts have commonly

described the requisite showing for deliberate indifference as a “high” bar to meet.143

137 See, e.g., Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir. 2011) (to show

deliberate indifference in a Title IX private right of action, stating that “neither negligence nor mere unreasonableness

is enough”); Hawkins v. Sarasota Cty. Sch. Bd., 322 F.3d 1279, 1287 n.11 (11th Cir. 2003) (“This is not a mere

‘reasonableness’ standard or a failure to use reasonable care standard similar to negligence.”) (citing Davis, 526 U.S. at

649).

138 See Davis, 526 U.S. at 648 (rejecting the dissent’s “mischaracterize[ation]” that the standard requires funding

recipients to remedy peer harassment). See, e.g., Sanches, 647 F.3d at 167–68 (describing the requisite showing for

deliberate indifference and stating that “[s]chools are not required to remedy the harassment”); Gabrielle M. v. Park

Forest-Chicago Heights, IL. Sch. Dist. 163, 315 F.3d 817, 824 (7th Cir. 2003) (“According to Davis, this is not a mere

reasonableness standard, nor does it require funding recipients to remedy peer harassment.”); Vance v. Spencer Cty.

Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000) (“The recipient is not required to ‘remedy’ sexual harassment nor

ensure that students conform their conduct to certain rules . . . .”) (citing Davis, 526 U.S. at 648–49).

139 See generally, e.g., McCoy v. Bd. of Educ. Columbus City Sch., 515 F. App’x 387, 391–92 (6th Cir. 2013)

(explaining that when assessing “deliberate indifference” in the Title IX context, “the proportionality of the school’s

response in light of available information lies at the heart of the indifference analysis”; discussing two cases to

“illustrate the relationship between school officials’ level of knowledge and the reasonableness of their actions”).

140 See Davis, 526 U.S. at 654 (holding that complaint sufficiently alleged a Title IX claim to survive a motion to

dismiss; on deliberate indifference, pointing to allegations that the school board “made no effort whatsoever either to

investigate or to put an end to the harassment”). See also, e.g., Papelino v. Albany Coll. of Pharmacy of Union Univ.,

633 F.3d 81, 90 (2d Cir. 2011) (concluding that a reasonable jury “could surely find” deliberate indifference from

evidence that the college dean who received the sexual harassment allegations against a professor did not speak to

anyone about the complaint and “did nothing to investigate” it); Jennings v. Univ. of N.C., 482 F.3d 686, 700–01 (4th

Cir. 2007) (en banc) (holding that the university’s “failure to take any action to remedy the situation would allow a

rational jury to find deliberate indifference to ongoing discrimination”).

141 Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1243–44, 1248 (10th Cir. 1999) (where Title IX

complaint alleged repeated sexual assaults of developmentally disabled student, of which the principal had been

notified, stating that the principal’s “complete refusal to investigate known claims of the nature advanced by [the

plaintiff], if true, amounts to deliberate indifference”).

142 See, e.g., McCoy, 515 F. App’x at 391 (“A failure to take any disciplinary action despite reports of repeated sexual

harassment rises to the level of deliberate indifference.”) (emphasis in original). See also, e.g., Vance, 231 F.3d at 261

(holding that “deliberate indifference” may be shown by evidence that a school district has actual knowledge that its

corrective efforts have been ineffective, and continues to use those same methods “to no avail”; explaining that such a

response reflects a failure “to act reasonably in light of the known circumstances”).

143 See, e.g., I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 368 (2019) (“Deliberate indifference is an extremely

high standard to meet.” (quoting Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001))); Doe v.

Galster, 768 F.3d 611, 619 (7th Cir. 2014) (“The standard of deliberate indifference sets a high bar for plaintiffs”).

Congressional Research Service

16

Title IX and Sexual Harassment

In Doe ex rel. Doe v. Dallas Independent School District, for example, the Fifth Circuit held that

the school district’s response did not amount to deliberate indifference,144 despite evidence that

could arguably be described as reflecting a deficient response. In that case, the plaintiffs, a group

of former students, alleged that the same third grade teacher had sexually abused numerous male

students, over the course of four years.145 The plaintiffs presented evidence that in response to a

report of sexual molestation,146 the principal told the parent that the alleged perpetrator was a

“good teacher” and that he knew her son was lying; failed to report the allegation to Child

Protective Services; did not monitor the teacher further or require him to attend any training; and

never raised the issue of sexual abuse again with the teacher until he was ultimately arrested.147 In

the court’s view, this evidence failed to create a triable issue of deliberate indifference, as the

principal had nonetheless interviewed the student, spoken with his mother, and warned the

teacher that if the allegations were true, “he would be ‘dealt with.’”148 It could not say, the court

concluded, that these actions “were an inadequate response” to the student’s allegation.149

When faced with apparently similar evidence of a school’s response to allegations of teacher

sexual misconduct, the Eleventh Circuit held that, given “serious deficiencies,” the district court

had erred in holding that defendant’s response, as a matter of law, was not deliberately

indifferent.150 There, the principal had received sexual harassment complaints by two students

about the same teacher.151 In its analysis, the court highlighted the response to the second

complaint, because by that time, the principal had notice of a possible pattern.152 The principal,

however, “effectively did nothing other than obtain a written statement” from the student and the

teacher.153 In addition, though the principal, as he had with the first complaint, reported the

second complaint to the school board’s special investigative unit, he nonetheless failed to notify

the unit that the allegation concerned “the same teacher who had been the subject of a formal

investigation just months earlier.”154 It could not be said, the court concluded, that “merely

because school officials ‘confronted [the teacher],’ ‘obtained statements’ from the complaining

students, and ‘informed the [unit] of the sexual misconduct allegations’ (while omitting material

details),” that this response was reasonable.155 Rather, the “failure to institute any corrective

144 220 F.3d 380, 388–89 (5th Cir. 2000).

145 Id. at 381.

146 Id. at 387 (reflecting that parent of a student reported that the teacher “had fondled” her son, and that the student had

relayed to the principal that the teacher had touched him “‘in his private place’”).

147 Id. at 388.

148 Id.

149 Id.

150 Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1263 (11th Cir. 2010).

151 Id. at 1250–53 (describing both complaints and the sexual harassment alleged in each report).

152 Id. at 1260–63 (concluding that though actions taken in response to first complaint did not amount to deliberate

indifference, the response to the second complaint, “in light of the known circumstance that a prior female student had

also accused [the same teacher] of sexual harassment in the same school year,” created a triable issue of deliberate

indifference).

153 Id. at 1261 (noting the absence of any formal or informal investigation, and no interviews of any other relevant

witnesses). Cf. Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 387–89 (5th Cir. 2000).

154 Broward Cty., 604 F.3d at 1261–62 (reflecting that the principal had also “recommended that no further

investigation occur” and noting that corrective measures such as monitoring the teacher’s classroom were not taken).

155 Id. at 1263.

Congressional Research Service

17

Title IX and Sexual Harassment

measures aimed at ferreting out the possibility of [the teacher]’s sexual harassment of his students

could constitute deliberate indifference.”156

Meanwhile, some courts of appeals have analyzed allegations of deliberate indifference that, in

their view, the Court’s Gebser and Davis decisions did not directly address.157 In Simpson v.

University of Colorado, Boulder, for example, the Tenth Circuit addressed allegations that a

university had an “official policy of deliberate indifference” by failing to provide adequate

training or guidance in light of an “obvious” need for such actions.158 There, the head coach and

other staff of the university’s football program selected current players to host high school

recruits on campus, for the purpose of “‘show[ing] the recruits a good time.’”159 During one such

football recruiting visit, the plaintiffs, who had agreed to meet with them, alleged that university

football players and high school recruits sexually assaulted them.160

In analyzing the issue of deliberate indifference, the court highlighted evidence that the university

coaching staff had prior and ongoing knowledge of sexual assaults occurring during football

recruitment and by football players, including the rape of a female student by a university football

player two months before the plaintiffs were assaulted.161 The university had also been previously

advised by the local district attorney to implement changes and training to its football recruiting

program in light of such sexual assaults.162 In addition, the head coach “continued to resist

recruiting reforms.”163 One player testified that he received little guidance on his responsibilities

as a “player-host”; and a handbook provided by the school to the players, the court observed, did

not “provide guidance to player-hosts on appropriate behavior by themselves and recruits.”164

The court emphasized that the evidence would support findings that, before the plaintiffs had

been assaulted, the head coach had both general and specific knowledge of sexual assaults

occurring during recruiting visits, that there had been no change in the recruiting program to

lessen the likelihood of such assaults, and that the university “nevertheless maintained an

unsupervised player-host program.”165 The evidence, the court held, created a triable issue of

deliberate indifference.166

As with the other components of the Supreme Court’s standard for a Title IX private right of

action—“actual” notice to an “appropriate person”—federal case law reflects fact-intensive,

156 Id. at 1261.

157 See Simpson v. Univ. of Colo., Boulder, 500 F.3d 1170, 1175–79 (10th Cir. 2007) (stating that the Davis decision

provided an “imperfect” framework by which to analyze plaintiffs’ Title IX claim, but discussing and looking to

Gebser and Davis for guidance as to the appropriate requirements to apply in the case). See also, e.g., Williams v. Bd.

of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1295 (11th Cir. 2007) (in Title IX claim alleging university liability for

the rape of a student by university football players, noting the “factual distinctiveness” of the Title IX claim, and that

“to the extent that we deal with a scenario that is factually distinct” from Gebser and Davis, it would analyze the claim

in light of circuit precedent addressing municipal liability under § 1983 claims).

158 Simpson, 500 F.3d at 1178.

159 Id. at 1173, 1180.

160 Id. Evidence included that at least one player understood the purpose of meeting with the alleged victims was “to

provide recruits another chance to have sex.” Id.

161 Id. at 1181–83.

162 Id. at 1181–82.

163 Id. at 1184.

164 Id. at 1183.

165 Id. at 1184.

166 Id. at 1184–85.

Congressional Research Service

18

Title IX and Sexual Harassment

variable determinations with respect to the evidence necessary to meet the “high” bar167 for

showing deliberate indifference on the part of a funding recipient.

Administrative Enforcement of Title IX

In addition to the private rights of action discussed above, Title IX is also enforced by federal

agencies that provide funding to educational programs. Title IX makes nondiscrimination based

on sex a condition for receiving federal financial assistance in any education program or

activity.168 In this administrative enforcement context, if a school is found to have violated Title

IX, the ultimate sanction is termination or suspension of federal funds, rather than a legal

judgment requiring payment of damages to a particular student.169 Agencies are authorized to

issue regulations (subject to presidential approval) and orders to enforce the statute and are

responsible for monitoring recipients’ compliance with Title IX.170 While a number of federal

agencies issue funds for educational programs, and thus are responsible for enforcing the statute

with respect to recipients of financial assistance for educational programs, two agencies play

particularly prominent roles in enforcing Title IX.

Pursuant to the Education Amendments of 1974, the Secretary of Education (ED) is specifically

directed to promulgate regulations concerning the prohibition of sex discrimination at education

programs that receive federal assistance.171 Because ED is, among other things, “the primary

administrator of federal financial assistance to education,”172 the agency plays a lead role in

enforcing Title IX against educational institutions.173 And according to an executive order, the

Attorney General coordinates the implementation and enforcement of Title IX across the

executive branch.174 Subject to the coordinating function of the Attorney General, the Department

of Justice’s Civil Rights Division and OCR collaborate in enforcing Title IX consistent with a

167 See supra note 30.

168

20 U.S.C. § 1681(a). Title IX contains a number of exceptions, such as exemptions for educational institutions

controlled by a religious organization and those whose primary purpose is training for military service or the merchant

marine. Id. §§ 1681(a) (1)–(9). Employees of educational institutions may also be protected from sexual harassment

under Title IX, although they are also protected by Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq.

169 It bears mention that at least some resolution agreements reached between OCR and universities have required

reimbursement to complainants of university expenses. See, e.g., Voluntary Resolution Agreement, Southern Methodist

University, OCR Case Nos. 06112126, 06132081, and 06132088, at 15 (Nov. 16, 2014),

https://www2.ed.gov/documents/press-releases/southern-methodist-university-agreement.pdf.

170 20 U.S.C. § 1682; Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal

Financial Assistance; Final Common Rule, 65 Fed. Reg. 52,858 (2000) (incorporated throughout the Code of Federal

Regulations) [hereinafter Final Common Rule].

171 Education Amendments Act of 1974, Pub. L. No. 93-380, § 844, 88 Stat. 484 (1974) (codified at 20 U.S.C. § 1681

note.)

172 Grove City Coll. v. Bell, 687 F.2d 684, 688 (3d Cir. 1982).

173 ED’s Title IX regulations served as the model for the comprehensive “common rule” implementing Title IX by 21

other executive branch agencies, including DOJ. This common rule recognized ED’s lead role in enforcing Title IX

through guidance and investigations. See Final Common Rule, supra note 170. While various federal agencies that

issue federal funds to education programs enforce Title IX with respect to those programs, some agencies also play

another role in indirectly interpreting Title IX. For instance, the Affordable Care Act bars discrimination in any health

program or activity that receives federal funds on the grounds prohibited by various civil rights statutes, including Title

IX. 42 U.S.C. § 18116. The Secretary of the Department of Health and Human Services (HHS) is authorized to issue

regulations implementing this provision. Id. § 18116(c). HHS did so in 2016, but these regulations were enjoined by a

federal district court (insofar as they prohibited discrimination on the basis of gender identity and termination of

pregnancy). Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 670 (N.D. Tex. 2016).

174 Leadership and Coordination of Nondiscrimination Laws, Exec. Order No. 12,250 (1980).

Congressional Research Service

19

Title IX and Sexual Harassment

memorandum of understanding reached between the agencies, which notes that OCR has primary

responsibility for enforcing the statute directly against recipients of financial assistance from ED

through complaint investigations and compliance reviews.175

Accordingly, ED has promulgated regulations implementing Title IX that apply to traditional

educational institutions of all levels that receive federal assistance, including elementary and

secondary schools, as well as institutions of higher education.176 Those regulations specifically

bar educational institutions from excluding individuals or denying the benefits of any education

program or activity on the basis of sex.177 ED regulations also require that recipients of federal

financial assistance that operate education programs designate an employee (commonly referred

to as the Title IX Coordinator) to coordinate efforts to comply with ED regulations regarding sexbased discrimination.178 Further, schools must establish grievance procedures that provide

“prompt and equitable resolution” of complaints alleging prohibited actions.179

Pursuant to its role in enforcing Title IX, OCR may conduct periodic reviews of institutions, or

directed investigations, to ensure that recipients of federal funds are complying with applicable

requirements.180 OCR also receives complaints from individuals alleging violations of Title IX by

educational institutions and investigates allegations. When violations of the statute are found

through these means, the office can seek informal resolution through a resolution agreement.181

According to OCR, if negotiations do not reach a resolution agreement, it may then take more

175 Memorandum of Understanding Between the United States Department of Education, Office for Civil Rights, and

the United States Department of Justice, Civil Rights Division (2014),

https://www.justice.gov/sites/default/files/crt/legacy/2014/04/28/ED_DOJ_MOU_TitleIX-04-29-2014.pdf.

176 34 C.F.R. § 106.2. See Dep’t of Justice, Civil Rights Div., Title IX Legal Manual (updated Aug. 6, 2015),

https://www.justice.gov/crt/title-ix (explaining that the document is not a guide for Title IX enforcement regarding

“traditional educational institutions such as colleges, universities, and elementary and secondary schools [that] have

been subject to the Department of Education’s Title IX regulations and guidance for 25 years,” but is instead intended

for other federal agencies that fund educational programs such as “police academies, job training programs, vocational

training for prison inmates, and other education programs”).

177 34 C.F.R. § 106.31(a). The predecessor of the Department of Education was the Department of Health, Education,

and Welfare (HEW), which originally issued Title IX regulations in 1975. Congress created the Department of

Education in 1980. Department of Education Organization Act, Pub. L. No. 96-88, § 201, 93 Stat. 668 (1979) (codified

at 20 U.S.C. § 3411). All of HEW’s regulations continued and all functions of HEW’s Office for Civil Rights were

transferred to the Secretary of Education. 20 U.S.C. § 3441(a)(3). HEW’s Title IX regulations were recodified at 34

C.F.R. pt. 106. See Establishment of Title and Chapters, 45 Fed. Reg. 30,802, 30,955–56 (1980).

178 34 C.F.R. § 106.8(a). See also OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., NOTICE OF LANGUAGE ASSISTANCE

DEAR COLLEAGUE LETTER ON TITLE IX COORDINATORS (Apr. 24, 2015), https://www2.ed.gov/about/offices/list/ocr/

letters/colleague-201504-title-ix-coordinators.pdf.

179 34 C.F.R. § 106.8(b). In addition, under the Clery Act and its implementing regulations, schools that receive funding

under Title IV of the Higher Education Act of 1965 must report certain crimes to ED and the campus community. 20

U.S.C. § 1092(f). A covered institution must also prepare an annual security report that contains a statement of policy

regarding its procedures for disciplinary action in the case of alleged dating violence, domestic violence, sexual assault,

or stalking. 34 C.F.R. § 668.46(k).

180 34 C.F.R. § 106.71 (incorporating by reference the procedures applicable under 34 C.F.R. § 100.7(a)). See OFFICE

FOR CIVIL RIGHTS, DEP’T OF EDUC., CASE PROCESSING MANUAL 22 (2018), https://www2.ed.gov/about/offices/list/ocr/

docs/ocrcpm.pdf [hereinafter CASE PROCESSING MANUAL] (“In appropriate circumstances, OCR may conduct a directed

investigation when information indicates a possible failure to comply with the laws and regulations enforced by OCR,

the matter warrants attention and the compliance concern is not otherwise being addressed through OCR’s complaint,

compliance review or technical assistance activities.”).

181 See CASE PROCESSING MANUAL15–17. See, e.g., Departments of Justice and Education Reach Settlement to Address

and Prevent Sexual Assault and Harassment of Students at the University of Montana in Missoula, U.S. DEP’T OF

EDUC. (May 9, 2013), http://www.ed.gov/news/press-releases/departments-justice-and-education-reach-settlementaddress-and-prevent-sexual-assault-and-harassment-students-university-montana-missoula.

Congressional Research Service

20

Title IX and Sexual Harassment

formal enforcement measures, including seeking to suspend or terminate an institution’s

funding.182

Notably, neither Title IX’s text nor ED’s current regulations directly address sexual harassment.

In the administrative context, ED’s OCR has issued a series of guidance documents that have

interpreted Title IX to bar sexual harassment and define distinct responsibilities for educational

institutions with regard to such allegations.183

These documents—while sometimes subject to change—generally reflect a different analysis for

assessing a school’s Title IX liability for harassment than the Supreme Court case law addressing

private rights of action for damages for sexual abuse or harassment. In particular, ED has applied

a constructive notice requirement that prompts a school’s Title IX responsibility to respond, rather

than “actual notice” to “an appropriate person” as required in the context of suits for damages. In

addition, while the Supreme Court has explained that a school’s response will result in liability

only where “clearly unreasonable,” ED has articulated baseline standards for how schools must

respond to comply with Title IX.184 Finally, while the Supreme Court rejected holding schools

responsible for sexual harassment under theories of vicarious liability, ED has held schools

responsible for sexual harassment under Title IX where a teacher commits misconduct in the

scope of their employment.185

1997 ED Guidance and Subsequent Supreme Court Decisions

Regarding Sexual Harassment

In 1997, OCR released a guidance document stating that sexual harassment of students by school

employees, other students, or third parties is a form of sex discrimination prohibited by Title

IX.186 The guidance explained that two general types of conduct constituted sexual harassment:

1. Quid pro quo harassment: wherein a school employee “explicitly or implicitly

conditions a student’s participation in an education program or activity or bases

an educational decision on the student’s submission to unwelcome sexual

advances, requests for sexual favors, or other verbal, nonverbal, or physical

conduct of a sexual nature”; or

2. Hostile environment harassment: wherein sexual harassing conduct by a

school’s employee, another student, or a third party “is sufficiently severe,

persistent, or pervasive to limit a student’s ability to participate in or benefit from

an education program or activity, or to create a hostile or abusive educational

environment.”187

In the former case, the 1997 Guidance explained that a school would be liable for quid pro quo

harassment by an employee in a position of authority whether or not it knew or should have

182 See CASE PROCESSING MANUAL15–17. See 20 U.S.C. § 1682; 34 C.F.R. § 106.71 (incorporating by reference the

procedures applicable under 34 C.F.R. § 100.8).

183 See Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, 104 CAL. L. REV. 881, 898–905 (2016) (noting how the

Department of Education’s expectations for educational institutions’ responsibilities regarding allegations of sexual

harassment have evolved).

184 See, e.g., 2001 GUIDANCE, supra note 11, at 5–14.

185 Id. at 10.

186 Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62

Fed. Reg. 12,034 (Mar. 13, 1997).

187 Id. at 12,038.

Congressional Research Service

21

Title IX and Sexual Harassment

known of the harassment.188 In the latter case, the 1997 Guidance explained that, in instances of

hostile environment harassment by employees, a school would be liable for harassment if the

employee acted with apparent authority or was aided in carrying out the harassment due to his or

her position.189

With respect to sexual harassment by other students or third parties, a school would be liable for

harassment if “(i) a hostile environment exists in the school's programs or activities, (ii) the

school knows or should have known of the harassment, and (iii) the school fails to take

immediate and appropriate corrective action.”190 The Guidance explained that while Title IX does

not render a school responsible for the actions of its students, it does make schools responsible for

their “own discrimination in failing to remedy [harassment] once the school has notice.”191

Following the release of OCR’s 1997 Guidance, the Supreme Court shortly thereafter recognized

a substantively different standard for establishing liability in a private suit for damages directly

against a school.192 As discussed above, in 1998, in Gebser, the Supreme Court ruled that in cases

of harassment committed by a teacher, a school district is liable only when it has actual

knowledge of allegations by an “appropriate person,” and so deficiently responds to those

allegations that its response amounts to deliberate indifference to the discrimination.193 And the

next year in Davis, the Court held that in addition to a showing of actual knowledge by an

appropriate person, and deliberate indifference, a plaintiff suing for damages for sexual

harassment committed by a student must show that the conduct was “so severe, pervasive, and

objectively offensive” that it denied the victim equal access to educational opportunities or

benefits.194

Crucially, the Court in Gebser distinguished between actions by a school that could result in Title

IX liability for damages in a private right of action, and Title IX administrative requirements

imposed by a federal agency in implementing and enforcing the statute.195 According to the

Court, agencies possess authority to enforce requirements that effectuate Title IX’s mandate,

“even if those requirements do not purport to represent a definition of discrimination under the

statute.”196 In other words, agencies enforcing Title IX may administratively require recipients to

comply with certain procedures and rescind funding for violations, even though breaches of such

requirements might not subject a school to liability under a private suit for damages.

188 Id. at 12,039.

189 Id.

190 Id. at 12,039–40. The Guidance also indicated that “[e]ven in situations not involving (i) quid pro quo harassment,

(ii) creation of a hostile environment through an employee's apparent authority, or (iii) creation of a hostile

environment in which the employee is aided in carrying out the sexual harassment by his or her position of authority, a

school will be liable for sexual harassment of its students by its employees under the same standards applicable to peer

and third party hostile environment sexual harassment.” Id. at 12,039.

191 Id. at 12,040.

192 Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 74–75 (1992).

193 See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 289–90 (1998); Franklin, 503 U.S. at 75.

194 Davis v. Monroe Cnty. Bd. of Educ, 526 U.S. 629, 650–51 (1999).

195 Gebser, 524 U.S. at 291–92.

196 Id.

Congressional Research Service

22

Title IX and Sexual Harassment

ED’s Guidance Documents Regarding Sexual Harassment

Subsequent to Gebser and Davis

Following these Supreme Court decisions regarding the standard for liability in Title IX damages

suits alleging sexual harassment, ED issued a number of guidance documents generally

reaffirming its basic position outlined in its 1997 Guidance, including with respect to notice, a

school’s responsibilities under Title IX to comply with the statute, and the application of

vicarious liability in certain situations. In these documents, ED has indicated that the liability

standard imposed by the Supreme Court for Title IX sexual harassment violations is distinct from

the standards appropriate in the administrative enforcement context.197 In other words, a school’s

responsibilities in responding to sexual harassment allegations under Title IX have been treated

differently in the context of a suit for damages than in the administrative enforcement context.

2001 Sexual Harassment Guidance

In 2001, OCR issued a Revised Sexual Harassment Guidance document that—in light of the

intervening Supreme Court decisions that set a more stringent standard for obtaining relief

regarding private damages actions198—reaffirmed the standards of the agency’s 1997 Guidance as

grounded in Title IX regulations and distinct from private damages litigation.199 The guidance

explicitly applies to all educational institutions that receive federal funds, including

universities.200 It outlines the compliance standards OCR uses for enforcing and investigating

violations of Title IX.201

Required Response

As a threshold matter, schools are responsible for adopting grievance procedures that provide

prompt and equitable resolution of complaints of sexual harassment.202 Failure to do so will mean

that a school is in violation of Title IX.203 Generally speaking, when sexual harassment has

occurred, educational institutions must take “prompt and effective action calculated to end the

harassment, prevent its recurrence, and, as appropriate, remedy its effects.”204 If the “school, upon

notice of the harassment, responds by taking prompt and effective action to end the harassment

and prevent its recurrence, the school has carried out its responsibility under the Title IX

regulations.”205 Though framed as guidance, the 1997 and 2001 documents were promulgated by

197 2001 GUIDANCE, supra note 11, at i (noting that the revised guidance distinguishes the responsibilities of a school in

the administrative enforcement context from those applicable in private suits for damages).

198 See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 289–90 (1998) (recognizing that an institution may be

liable for money damages under Title IX when it is deliberately indifferent to known acts of sexual harassment by a

teacher); Davis, 526 U.S. at 650 (ruling that private Title IX damages action are available for student-on-student

harassment when harassment is so severe, pervasive, and objectively offensive that it deprives the victim of access of

educational opportunities or benefits, and the institution had actual knowledge of and was deliberately indifferent to the

harassment).

199 See 2001 GUIDANCE, supra note 11. The Guidance also described the interaction between the Family Educational

Rights and Privacy Act (FERPA), Title IX, and the Due Process Clause. Id. at vi–viii, 22.

200 Id. at i.

201 Id.

202 Id. at 19.

203 Id.

204 Id. at iii.

205 Id.

Congressional Research Service

23

Title IX and Sexual Harassment

ED after an opportunity for the public to comment on them.206 (This does not mean, however, that

the documents are legislative rules that carry the force of law; guidance documents generally

serve to inform the public about the agency’s approach to enforcement of the laws and

regulations it administers.207)

Types of Harassment

The 2001 Guidance stated that “unwelcome conduct of a sexual nature” constitutes sexual

harassment.208 It indicated, however, that it aimed to “move away from specific labels for types of

sexual harassment.” Instead, the 2001 Guidance explained that the crucial issue in each case “is

whether the harassment rises to a level that it denies or limits a student’s ability to participate in

or benefit from the school’s program based on sex.”209 In that situation, “harassment has occurred

that triggers a school’s responsibilities under, or violates, Title IX or its regulations.”210 That said,

it went on to describe types of harassment that largely tracked the categories outlined in the 1997

Guidance: quid pro quo harassment and hostile environment harassment. In the former situation,

wherein a teacher or employee conditions a benefit or educational decision on a student’s

submission to unwelcome sexual conduct, such harassment is automatically considered

harassment that limits or denies a student’s ability to participate in or benefit from the school’s

program and thus discriminates based on sex in violation of Title IX.211

Unlike so-called quid pro quo harassment, a case of hostile environment harassment requires a

further investigation into whether the conduct is sufficiently serious to limit or deny a student’s

ability to benefit from or participate in a school’s program because of sex.212 Because fellow

students do not generally have positions of authority, student-on-student harassment generally is

considered hostile environment harassment rather than quid pro quo harassment, although

teachers and employees may also create a hostile environment.213 The 2001 Guidance explained

that, in evaluating whether hostile environment harassment has occurred, OCR examines all

circumstances relevant to the situation.214 This includes whether the conduct in question was

welcome.215

206 See Sexual Harassment Guidance: Peer Sexual Harassment, 61 Fed. Reg. 42,728 (Aug. 16, 1996); Sexual

Harassment Guidance: Harassment of Students by School Employees, 61 Fed. Reg. 52,172 (Oct. 4, 1996); Revised

Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 65 Fed.

Reg. 66,092 (Nov. 2, 2000). Agency guidance documents typically do not go through the notice and comment

procedures required of binding legislative rules as required under the Administrative Procedure Act, 5 U.S.C. § 553.

Instead, guidance documents are intended to inform the public about the agency’s approach to a regulatory or statutory

scheme. See CRS Report R44468, General Policy Statements: Legal Overview, by Jared P. Cole and Todd Garvey.

They do not carry the force of law and may not be relied upon by an agency to bring an enforcement action. Nat’l Min.

Ass’n v. McCarthy, 758 F.3d 243, 251–52 (D.C. Cir. 2014) (Kavanaugh, J.). In order to support an enforcement action

against a regulated party, an agency must rely on an underlying substantive regulation or statute for support. Id.

207 See generally Am. Tort Reform Ass’n v. Occupational Safety & Health Admin. & Dep’t of Labor, 738 F.3d 387,

394 (D.C. Cir. 2013) (noting that publication in the Federal Register and the Code of Federal Regulations is “not

dispositive” as to whether the agency’s document carries the force of law as a legislative rule).

208 2001 GUIDANCE, supra note 11, at 2.

209 2001 GUIDANCE, supra note 11, at 5.

210 Id.

211 Id.

212 Id.

213 See id.

214 See 2001 GUIDANCE, supra note 11, at 5–7 (articulating relevant factors).

215 This inquiry may include the age of the student and whether the alleged harasser is in a position of authority. 2001

Congressional Research Service

24

Title IX and Sexual Harassment

Harassment by a Teacher or Employee

The 2001 Guidance also explained that, in the context of harassment by a teacher or school

employee, the extent of a school’s responsibilities to address harassment depends on whether the

harassment occurs within “the context of the employee’s provision of aid, benefits, or services to

students” (i.e., in the context of their job responsibilities).216 With respect to harassment by

teachers or employees in the scope of their job responsibilities (or who reasonably appear to be

acting in that capacity), assuming the harassment limits or denies a student’s ability to benefit

from or participate in a school program, a school is responsible for the discriminatory conduct

and must stop the behavior, prevent its recurrence, and remedy the effects of harassment for the

victim.217 In such situations, a school is responsible to do this “whether or not” it has notice of the

behavior.218

Whether sexual harassment occurs within the scope of an employee’s job responsibilities can

depend on a variety of factors. In cases of quid pro quo harassment, the behavior clearly occurs in

the scope of an employee’s job responsibilities.219 For hostile environment harassment, OCR will

evaluate a number of factors to determine whether the harassment occurred in the context of an

employee’s job responsibilities.220 The 2001 Guidance also indicates that sometimes harassment

that does not occur within an employee’s job responsibilities will be sufficiently serious to create

a hostile environment.221 In these cases, once a school has notice of the behavior, it has a duty to

stop the harassment and prevent its recurrence.222

Harassment by Other Students or Third Parties

Likewise, in the context of student-on-student harassment (or harassment by third parties) that

creates a hostile environment, the school is responsible for eliminating the environment and

preventing its recurrence.223 However, a school is in violation of Title IX if it has notice of the

environment and fails to take “prompt and effective action” to correct the situation.224 In that

case, the school is responsible for ending the harassment, preventing its recurrence, and

remedying the effects of harassment for the student that “could reasonably have been prevented”

if the school reacted appropriately.225

GUIDANCE, supra note 11, at 7–9.

216 See id. at 10.

217 See id.

218 See id. The Guidance made clear, however, that pursuant to the administrative enforcement by OCR, a school will

receive notice and an opportunity to take corrective action before an administrative finding of a violation or loss of

federal funds. Id.

219 See id.

220 See id. The Guidance notes that harassment by elementary and secondary school teachers or administrators during a

school activity “will generally lead to a conclusion that the harassment occurred in the context of the employee’s

provision of aid, benefits, or services.” Id. at 11.

221 Id.

222 Id. at 11–12.

223 Id. at 12.

224 See id. at 13.

225 See id. at 12.

Congressional Research Service

25

Title IX and Sexual Harassment

Notice of Sexual Harassment

As noted above, in certain situations of harassment by a teacher or employee, schools are

responsible for harassment even without notice.226 Otherwise, in cases of sexual harassment by

employees, students, or third parties, the 2001 Guidance explains that recipients have notice of a

sexually hostile environment if a responsible school employee “knew, or in the exercise of

reasonable care, should have known,” of the harassment.227 A responsible employee is “any

employee who has the authority to take action to redress the harassment, who has the duty to

report to appropriate school officials sexual harassment or any other misconduct by students or

employees, or an individual who a student could reasonably believe has this authority or

responsibility.”228 Even if a student fails to inform the school or use the appropriate grievance

procedures to complain of harassment, a school will be in violation of Title IX if it knows or

reasonably should know of a hostile environment. A school is in violation of Title IX if it has

notice of a hostile environment and fails to take immediate and effective corrective action.229

A School’s Responsibilities

Once a school has notice of potential sexual harassment of students, the 2001 Guidance explained

that “it should take immediate and appropriate steps to investigate or otherwise determine what

occurred and take prompt and effective steps reasonably calculated to end any harassment,

eliminate a hostile environment if one has been created, and prevent harassment from occurring

again.”230 In cases of reports of harassment by a student, parent of an elementary or secondary

student, or harassment observed by a responsible employee, regardless of whether the harassed

student, or student’s parents, decide to file a formal complaint, “the school must promptly

investigate to determine what occurred and then take appropriate steps to resolve the situation.”231

For situations where a school learns of harassment via other means, a variety of factors will

determine whether there are reasonable grounds for the school to investigate. If the allegations are

confirmed, then a school has a responsibility to respond as described above.232

The 2001 Guidance also noted that informal mechanisms may sometimes be used to resolve

complaints if the parties agree to do so.233 However, it made clear that certain informal

procedures, such as mediation, are not appropriate in certain cases, such as alleged sexual

assault.234 Finally, the Guidance noted that while “the rights established under Title IX must be

interpreted consistent with any federal guaranteed due process rights,” schools should

nevertheless “ensure that steps to accord due process rights do not restrict or unnecessarily delay

the protections provided by Title IX to the complainant.”235

226 See id. at 10.

227 See id. at 13 (quotation marks omitted).

228

Id.

229 See id.

230 See id. at 15.

231 See id.

232 See id. at 18.

233 Id. at 21.

234 Id.

235 Id. at 22.

Congressional Research Service

26

Title IX and Sexual Harassment

2011 Dear Colleague Letter Regarding Sexual Violence Between Peers

In 2011, OCR issued a Dear Colleague Letter that supplemented its 2001 Guidance and focused

on the obligations under Title IX for schools that focused exclusively on peer-to-peer harassment,

rather than harassment by a teacher.236 The Letter explained that sexual harassment “is

unwelcome conduct of a sexual nature,” and includes “unwelcome sexual advances, requests for

sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”237 Sexual

harassment also includes sexual violence, which refers to “physical sexual acts perpetrated

against a person’s will or where a person is incapable of giving consent due to the victim’s use of

drugs or alcohol.”238

Sexual harassment creates a hostile environment “if the conduct is sufficiently serious that it

interferes with or limits a student’s ability to participate in or benefit from the school’s

program.”239 When a school “knows or reasonably should know about student-on-student

harassment that creates a hostile environment, Title IX requires the school to take immediate

action to eliminate the harassment, prevent its recurrence, and address its effects.”240

The Letter also noted that schools will sometimes have an obligation to respond to incidents of

sexual harassment that occur “off school grounds, outside a school’s education program or

activity.”241 And whether or not the conduct occurred, if a student files a complaint, “the school

must process the complaint in accordance with its established procedures.”242 Because students

can experience the effects of off-campus sexual harassment at school, “schools should consider

the effects of the off-campus conduct when evaluating whether there is a hostile environment on

campus.”243

With respect to investigations of sexual harassment allegations, the Letter stated that the

standards for liability in the criminal context are distinct from Title IX, and therefore a criminal

investigation into allegations of sexual violence does not relieve a school of its duty to conduct a

Title IX investigation.244 It also instructed schools not to wait until the conclusion of a criminal

investigation or proceeding to begin their own investigation under Title IX, and if appropriate, to

take immediate steps to protect students while a criminal investigation occurs.245 Although a

school may need to temporarily delay an investigation while a criminal fact-finding occurs by

236 See OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., DEAR COLLEAGUE LETTER (2011),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf [hereinafter 2011 DEAR COLLEAGUE LETTER].

237 See id. at 3.

238 Id. at 1. The Letter noted that a person may also be unable to consent due to a disability. Id. at 1. The 2011 Letter

also noted the relationship between Title IX and the Family Educational Rights and Privacy Act (FERPA), which

prohibits nonconsensual disclosure of a student’s personally identifiable information from an education record, 20

U.S.C. §1221(d). See 2011 DEAR COLLEAGUE LETTER, supra note 236, at 5.

239 2011 DEAR COLLEAGUE LETTER, supra note 236, at 3.

240 Id. at 4.

241 Id.

242 Id.

243 Id.

244 Id. at 10. See also 2001 GUIDANCE, supra note 11, at 21 (“However, because legal standards for criminal

investigations are different, police investigations or reports may not be determinative of whether harassment occurred

under Title IX and do not relieve the school of its duty to respond promptly and effectively.”).

245 2011 DEAR COLLEAGUE LETTER, supra note 236, at 10.

Congressional Research Service

27

Title IX and Sexual Harassment

police, once the police have finished their fact-finding, the school must promptly resume and

complete its fact-finding for Title IX purposes.246

The 2011 Dear Colleague Letter also outlined various elements of a school’s grievance

procedures that are critical in order to provide “prompt and equitable resolution of sexual

harassment complaints,” including sexual violence.247 The Letter noted “in order for a school’s

grievance procedures to be consistent with Title IX standards, the school must use a

preponderance of the evidence standard.”248 This standard contrasted with the 2001 Guidance,

which did not impose an evidentiary standard on school investigations, as well as the prior

practice of some schools, which used a “clear and convincing” standard.249 A preponderance of

the evidence standard, which requires a showing that a fact or event is more likely than not, is

lower than a clear and convincing standard, which requires providing the “ultimate factfinder

[with] an abiding conviction that the truth of . . . factual contentions are ‘highly probable.’”250

The Letter also strongly discouraged schools from allowing the parties in a hearing to personally

cross-examine one another.251 It noted that if a school allows parties to appeal a finding or

remedy, it must do so for both parties.252

2014 Q&A Document: Investigating Allegations of Sexual Violence

Following requests by schools on how to adequately comply with the 2011 Dear Colleague

Letter,253 ED issued a forty-six-page supplemental Questions and Answers document in 2014

(2014 Q&A) that further explained the responsibilities of schools with regard to allegations of

student-on-student sexual violence.254 It provided more specific instructions to educational

institutions regarding their obligations under Title IX.255 Like the 2011 Dear Colleague Letter, the

2014 Q&A took the form of a guidance document, rather than a legally enforceable legislative

rule.256

The Q&A made clear that when “a school knows or reasonably should know of possible sexual

violence, it must take immediate and appropriate steps to investigate or otherwise determine what

occurred.”257 It clarified that, in cases of student-on-student sexual violence, a school violates

Title IX when (1) “the alleged conduct is sufficiently serious to limit or deny a student’s ability to

participate in or benefit from the school’s educational program” (creating a hostile environment)

246 Id.

247 Id. at 9.

248 Id. at 10–11.

249 See 2001 GUIDANCE, supra note 11; 2011 DEAR COLLEAGUE LETTER, supra note 236, at 11.

250 Colorado v. New Mexico, 467 U.S. 310, 316 (1984); Addington v. Texas, 441 U.S. 418, 423–24 (1979); United

States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994).

251 2011 DEAR COLLEAGUE LETTER, supra note 236, at 12.

252 Id.

253

Janet Napolitano, “Only Yes Means Yes”: An Essay on University Policies Regarding Sexual Violence and Sexual

Assault, 33 YALE L. & POL’Y REV. 387, 394 (2015) (“The April 2011 Dear Colleague Letter generated significant

compliance questions for campuses.”).

254 OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE

(2014) [hereinafter 2014 QUESTIONS AND ANSWERS].

255 See Emma Ellman-Golan, Saving Title IX: Designing More Equitable and Efficient Investigation Procedures, 116

MICH. L. REV. 155, 164–65 (2017).

256 See supra note 206.

257 2014 QUESTIONS AND ANSWERS, supra note 254, at 2.

Congressional Research Service

28

Title IX and Sexual Harassment

and (2) “the school, upon notice, fails to take prompt and effective steps reasonably calculated to

end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as

appropriate, remedy its effects.”258

The 2014 Q&A also explained that Title IX requires schools, upon notice of an allegation, to

protect complainants and ensure their safety through the use of interim steps before an

investigation is complete.259 Among other things, it further specified in detail the requirements of

Title IX with respect to the responsibilities of a school’s Title IX Coordinator (the employee

required by regulation to coordinate a school’s compliance with Title IX),260 the elements

expected in a school’s written grievance procedures for responding to complaints of sexual

violence,261 and which individuals qualify as responsible employees who are required to report

allegations of sexual violence to a school’s Title IX Coordinator.262

The document also detailed the requirements for schools in conducting investigations into alleged

sexual violence. It stressed that while a school is permitted to use its own “student disciplinary

procedures” to process complaints of sexual violence, that if a school chooses to do so, the

imposition of sanctions against a perpetrator, “without additional remedies, likely will not be

sufficient to eliminate the hostile environment and prevent recurrence.”263

The 2014 Q&A noted that because Title IX investigations will not result in the incarceration of

individuals, “the same procedural protections and legal standards are not required” in Title IX

investigations as are compelled in criminal proceedings.264 Even if a criminal investigation of

student-on-student sexual violence is ongoing, a school must conduct its own Title IX

investigation.265 Indeed, the conclusion of a criminal investigation without charges “does not

affect a school’s Title IX obligations.”266

The document also explained that schools were not required to conduct hearings to assess

allegations of sexual violence, but if they did, they could not require the complainant to attend.267

Further, in the 2014 Q&A, OCR “strongly discourage[d]” schools from allowing parties to

personally cross-examine one another because such actions “may be traumatic or intimidating,

and may perpetuate a hostile environment.”268 Instead, schools could allow parties to submit

questions to a trained third party to ask on their behalf. The third party was advised to screen

those questions “and only ask those it deem[ed] appropriate and relevant to the case.”269

258 Id. at 1. See also 2001 GUIDANCE, supra note 11, at 5.

259 2014 QUESTIONS AND ANSWERS, supra note 254, at 3. See also 2001 GUIDANCE, supra note 11, at 16 (explaining that

“[i]t may be appropriate for a school to take interim measures during the investigation of a complaint”).

260 2014 QUESTIONS AND ANSWERS, supra note 254, at 10–12. See 34 C.F.R. § 106.8(a).

261 2014 QUESTIONS AND ANSWERS, supra note 254, at 12–14.

262 Id.at 14–18.

263 Id.

264 Id.at 27.

265 Id.

266 Id. See 2001 GUIDANCE, supra note 11, at 21 (noting that “because legal standards for criminal investigations are

different, police investigations or reports may not be determinative of whether harassment occurred under Title IX and

do not relieve the school of its duty to respond promptly and effectively”).

267 2014 QUESTIONS AND ANSWERS, supra note 254, at 30.

268 Id.

269 Id. at 31.

Congressional Research Service

29

Title IX and Sexual Harassment

Legal Challenges to University Title IX Procedures

In response to the foregoing guidance from ED, as well as increased oversight from OCR

between 2011 and 2016,270 schools developed a variety of procedures to ensure that their

responses to allegations of sexual assault complied with Title IX.271 Generally speaking, the

specific type of procedures for investigating allegations of sexual harassment vary considerably

across educational institutions.272 While Title IX provides ED with some discretion in terms of

administrative enforcement of the statute’s bar on sex-based discrimination, including the ability

to require public and private schools to develop certain procedures for handling complaints (as

long as those schools receive federal funds),273 this discretion is constrained with respect to state

actors (including public universities) by due process protections that set a baseline for the

procedural protections afforded to the accused.

In the public university context, a number of students subject to disciplinary sanctions for

misconduct thus challenged the disciplinary procedures in state and federal courts as

unconstitutional.274 In particular, a number of students faced with disciplinary action by public

universities have raised constitutional challenges to the Title IX procedures used to find them

responsible for sexual misconduct, arguing that universities violated the Due Process Clause in

the handling of their case.

Due Process Clause: Background Principles

The Due Process Clause of the Fourteenth Amendment requires states to observe certain

procedures when depriving individuals of life, liberty, or property.275 In addition to protecting

270 See Naomi M. Mann, Taming Title IX Tensions, 20 U. PA. J. CONST. L. 631, 643 (2018) (“Between 2011 and 2016,

OCR dramatically increased the number of schools that it proactively investigated for Title IX compliance, and broke

with prior practice by publicly listing the names of schools under investigation.”).

271 See Gersen & Suk, supra note 183, at 901–03.

272 2001 GUIDANCE, supra note 11, at 20 (“Procedures adopted by schools will vary considerably in detail, specificity,

and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal

requirements, and past experience.”); see Emma Ellman-Golan, Saving Title IX: Designing More Equitable and

Efficient Investigation Procedures, 116 MICH. L. REV. 155, 179–80 (2017) (discussing different models for

investigations at universities).

273 See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291–92 (1998).

274 See Plummer v. Univ. of Houston, 860 F.3d 767, 779–80 (5th Cir. 2017) (Jones, J., dissenting) (discussing claims

and litigation prompted by issuance of the 2011 Dear Colleague Letter).

275 U.S. CONST. amend. XIV, § 1. The Due Process Clause of the Fifth Amendment of the Constitution prohibits the

federal government from depriving persons of life, liberty, or property with due process of law. U.S. C ONST. Amend.

V. The Due Process Clause of the Fourteenth Amendment bars the states from doing the same. U.S. CONST. Amend.

XIV. The due process procedural safeguards of the Fourteenth Amendment are no less stringent than those of the Fifth

Amendment. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954). The primary vehicle for bringing suit in federal court

alleging constitutional violations by state officials is via 42 U.S.C. § 1983 (authorizing suits for violations of federal

rights “under color” of state law). The Eleventh Amendment generally bars suits by private citizens against states

actors, U.S. CONST. amend. XI, including state universities, unless sovereign immunity has been waived or Congress

has abrogated such immunity pursuant to a valid exercise of constitutional authority. See, e.g., Regents of the Univ. of

Cal. v. Doe, 519 U.S. 425, 429 (1997); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55–72 (1996) (discussing the

limited justifications by which Congress may validly enact a law abrogating state sovereign immunity). However, the

Supreme Court in Ex Parte Young has permitted suits for prospective and injunctive relief against state officials under

the theory that when a state officer violates the federal Constitution, the official is “stripped of his official or

representative character and is subjected in his person to the consequences of his individual conduct.” Ex parte

Young, 209 U.S. 123, 123 (1908). 42 U.S.C. § 1983 thus provides a federal cause of action for violations of federal

rights, authorizing suits for injunctive and prospective relief against state officials acting under color of state law, as

Congressional Research Service

30

Title IX and Sexual Harassment

against the deprivation of an individual’s physical property, the Constitution guards against the

deprivation of certain “property interests” without due process.276 The property interests protected

by the Due Process Clause are not themselves created by the Constitution; instead, those interests

arise from an independent source, such as state or federal law.277 To have a protected property

interest in a government-created benefit, one must show a “legitimate claim of entitlement” that

originates in “existing rules or understandings that stem from an independent source such as state

law.”278 Likewise, when a state deprives an individual of liberty, states must afford due process to

the individual.279 In fact, when a “person’s good name, reputation, honor, or integrity is at stake

because of what the government is doing to him,”280 due process may be implicated. In these

circumstances, courts often require an accompanying state action that alters or removes a legal

status to constitute a deprivation of liberty.281

Precisely what procedures are constitutionally required before depriving individuals of a

protected interest can vary.282 When deciding what process is due, courts balance three factors

enunciated by the Supreme Court in Mathews v. Eldridge: (1) “the private interest that will be

affected by the official action”; (2) the risk of an erroneous deprivation and the probable value of

additional procedures; and (3) the interest of the government.283 In general, the Court has made

clear that individuals with a protected interest are entitled to notice of the proposed action284 and a

“meaningful opportunity to be heard” before the state may deprive them of that interest.285 The

Supreme Court has explained, however, that due process is not a “technical conception with a

fixed content unrelated to time, place, and circumstances.”286 Instead, the concept is “flexible and

well as damages actions against officials in their individual capacity. See generally Kentucky v. Graham, 473 U.S. 159,

166, 169 n.18 (1985); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (“Of course a state official in his

or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity

actions for prospective relief are not treated as actions against the State.’” (quoting Kentucky, 473 U.S., at 167 n.14)).

As explained in more detail below, a private right of action is available to enforce Title IX directly against educational

institutions that receive federal funds. For these suits, Congress has abrogated the states’ Eleventh Amendment

immunity, meaning that a damages remedy is available. 42 U.S.C. § 2000d-7. See Franklin v. Gwinnett Cty. Pub. Sch.,

503 U.S. 60, 72 (1992) (ruling that a damages remedy is available to enforce Title IX in part because “Congress

abrogated the States’ Eleventh Amendment immunity under Title IX”), id. at 75 n.8 (declining to decide whether a

money damages remedy is available pursuant to Congress’s Spending Clause powers or its powers arising under

Section 5 of the Fourteenth Amendment.). In other words, while a damages claim against a state entity is available for

violations of the Title IX statute, it is not available for constitutional violations brought under § 1983. For those claims,

prospective or injunctive relief may be available against state officials, and damages might be available against officials

in their individual capacities.

276 Bd. of Regents v. Roth, 408 U.S. 564, 576–78 (1972).

277 Id.

278 Id. at 577.

279 Goss v. Lopez, 419 U.S. 565, 574 (1975).

280 Roth, 408 U.S. at 573 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). The Supreme Court appears

to sometimes require a bare reputational liberty interest to be accompanied by a tangible protected property interest for

procedural due process to apply. See Siegert v. Gilley, 500 U.S. 228, 233, 234 (1991); Paul v. Davis, 424 U.S. 693,

711–12 (1976). Lower courts have required an alteration in legal status to accompany a reputational interest.

281 See, e.g., Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 315 (4th Cir. 2012).

282 Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“Due process is flexible and calls for such procedural protections as

the particular situation demands.”).

283 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

284 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); Goss v. Lopez, 419 U.S. 565, 579 (1975); Mullane

v. Cent. Hanover Trust Co., 339 U.S. 313 (1950).

285 Lachance v. Erickson, 522 U.S. 262, 266 (1998) (citing Loudermill, 470 U.S. at 542); Lopez, 419 U.S. at 579.

286 Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).

Congressional Research Service

31

Title IX and Sexual Harassment

calls for such procedural protections as the particular situation demands.”287 In conducting the

balancing of factors pursuant to Mathews v. Eldridge, the severity of the deprivation is a key

factor in determining what procedures are constitutionally required.288 In general, the stronger the

private interest at risk of deprivation, the more formal and exacting procedures will be required

by courts.289

The only Supreme Court case to focus on procedural due process in the (nonacademic) student

discipline context is Goss v. Lopez.290 In that case, high school students challenged their

suspension from school for up to 10 days without a hearing.291 The Court first ruled that the

public school students had a “legitimate entitlement to a public education,” which was a property

interest protected by due process; and that interest was deprived by the suspension.292 As to the

process required, the Court ruled that, at a minimum, “students facing suspension . . . must be

given some kind of notice and some kind of hearing.”293 The Court also clarified that cases of

more stringent sanctions, such as suspensions beyond 10 days or expulsions, “may require more

formal procedures.”294

Due Process Rights for Students at Public Universities

Generally speaking, because public universities constitute state actors subject to the Due Process

Clause, they must comply with constitutional standards when suspending or expelling students.295

Private universities, on the other hand, do not.296 The Supreme Court has assumed, without

287 Morrissey, 408 U.S. at 481.

288 Compare Loudermill, 470 U.S. at 543 (pretermination hearing required when deprivation is termination) with

Gilbert v. Homar, 520 U.S. 924, 930 (1997) (upholding immediate suspension of employee arrested and charged with

felony).

289 Lopez, 419 U.S. at 584; Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir. 2005) (“The stronger the private

interest, however, the more likely a formal written notice—informing the accused of the charge, the policies or

regulations the accused is charged with violating, and a list of possible penalties—is constitutionally required.”).

290 419 U.S. 565 (1975).

291 Id. at 567.

292 Id. at 574–76.

293 Id. at 579.

294 Id. at 584; see also id. at 584 (“Nor do we put aside the possibility that in unusual situations, although involving

only a short suspension, something more than the rudimentary procedures will be required.”).

295 See Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192 (1988) (“A state university without question is a

state actor.”); Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If a

defendant's conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes

action ‘under color of state law’ for § 1983 purposes.”). Beyond institutions that clearly qualify as state actors, such as

public universities, what characterizes a public entity engaged in state action depends on a variety of factors; the

Supreme Court has declined to deliver a “precise formula” for doing so. Instead, it instructs courts to “sift[] facts and

weigh[] circumstances” in each case. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961); Rendell-Baker v.

Kohn, 457 U.S. 830, 838 (1982) (examining relevant factors regarding what qualifies as state action and concluding

that a private university’s actions do not); Krynicky v. Univ. of Pittsburgh, 742 F.2d 94, 103 (3d Cir. 1984) (holding

“that a ‘symbiotic relationship’ exists between the Commonwealth of Pennsylvania on the one hand and Pitt and

Temple on the other. Actions taken by those two institutions are, therefore, actions taken under color of state law and

are subject to scrutiny under section 1983”).

296 See, e.g., Doe v. Wash. & Lee Univ., No. 6:14-CV-00052, 2015 WL 4647996, at *8 (W.D. Va. Aug. 5, 2015) (“Had

Plaintiff been enrolled at a public university, he would have been entitled to due process and the proceedings against

him might have unfolded quite differently. Unfortunately for Plaintiff, W & L is a private university, and as such, is

generally not subject to the constitutional protections of the Fifth Amendment.”); Doe v. Columbia Univ., 101 F. Supp.

3d 356, 368 n.5 (S.D.N.Y. 2015) (noting that “such constitutional claims may be brought only against ‘state actors’ and

Columbia University is a private university); Yu v. Vassar Coll., 97 F. Supp. 3d 448, 462 (S.D.N.Y. 2015); Bleiler v.

Congressional Research Service

32

Title IX and Sexual Harassment

deciding on the merits, that students of public universities enjoy a “constitutionally protectable

property right” in their continued enrollment in an educational institution.297 A number of federal

courts of appeals have ruled that students enrolled in public universities have liberty and/or

property interests in their education and that expulsion and certain suspensions can constitute a

deprivation of that interest.298

As discussed in further detail below, as a baseline matter, federal courts have held that due

process requires public schools to provide students with notice of the charges against them, the

evidence used to make a determination, and the ability to present their side of the story to an

unbiased decisionmaker.299 Of course, whether a public university has afforded a student due

process “is a fact-intensive inquiry and the procedures required to satisfy due process will

necessarily vary depending on the particular circumstances of each case.”300

Coll. of Holy Cross, No. CIV.A. 11-11541-DJC, 2013 WL 4714340, at *4 (D. Mass. Aug. 26, 2013) (“Since there is no

dispute that Holy Cross is a private school, the federal Constitution does not establish the level of due process that the

College had to give [the student] in his disciplinary hearing.”); Tsuruta v. Augustana Univ., No. 4:15-CV-04150-KES,

2015 WL 5838602, at *2 (D.S.D. Oct. 7, 2015); see generally Rendell-Baker v. Kohn, 457 U.S. 830, 841–42 (1982)

(ruling that the acts of a private school did not constitute state action, even though “virtually all of the school’s income”

was due to government funding); Hernandez–Loring v. Universidad Metropolitana, 233 F.3d 49, 51 (1st Cir.

2000) (observing that “a private university is not directly governed by the due process requirements of the Fifth and

Fourteenth Amendments”); But see Tamara Rice Lave, A Critical Look at how Top Colleges and Universities Are

Adjudicating Sexual Assault, 71 U. MIAMI L. R. 276 (2017) (arguing that due to the pressures exerted by OCR, private

colleges should qualify as state actors). That said, students at private colleges may have other legal remedies predicated

on state law grounds. See, e.g., Doe v. Univ. of S. Cal., 29 Cal. App. 5th 1212, 1232 (2018) (describing the principle of

fundamental fairness that must attend disciplinary decisions for college students required by California Code of Civil

Procedure; concluding that the university did not accord the plaintiff a fair hearing when it expelled him for sexual

misconduct). See also Doe v. Trs. of the Univ. of Pa., 270 F. Supp. 3d 799, 822 (E.D. Pa. 2017); Doe v. Brandeis Univ.,

177 F. Supp. 3d 561, 611 (D. Mass. 2016) (“The question at present is simply whether the complaint plausibly alleges

that the fact-finding process and its result violated the contractual relationship.”).

297 Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985).

298 See, e.g., Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988) (“[A] student facing expulsion or suspension from

a public educational institution is entitled to the protections of due process.”); Dixon v. Ala. State Bd. of Ed., 294 F.2d

150, 157 (5th Cir. 1961) (“Surely no one can question that the right to remain at the college in which the plaintiffs were

students in good standing is an interest of extremely great value.”); Woodis v. Westark Cmty. Coll., 160 F.3d 435, 440

(8th Cir. 1998) (“At the outset, we note that the expulsion proceedings entitled Woodis to some level of due process.”);

Nash v. Auburn Univ., 812 F.2d 655, 660 (11th Cir. 1987); Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 633 (6th Cir.

2005) (“In this Circuit we have held that the Due Process Clause is implicated by higher education disciplinary

decisions.”); Winnick v. Manning, 460 F.2d 545, 548 (2d Cir. 1972) (“While there remain many vexing questions as to

what due process requires in [university] disciplinary proceedings, a fundamental requirement is that a hearing must be

accorded before an impartial decision maker.”); Sill v. Penn. State Univ., 462 F.2d 463, 469 (3d Cir. 1972) (“Our

inquiry in this regard, therefore, is limited to the question whether the appointment of the special disciplinary panel by

the board of trustees and the submission to it of the charges against the appellants was a violation of the appellants’

right to procedural due process.”). But see Brown v. Univ. of Kan., 599 F. App’x 833, 837 (10th Cir. 2015) (assuming

without deciding that petitioner “had liberty or property interests implicated by his dismissal from the law school.”);

Tigrett v. Rector & Visitors of Univ. of Va., 290 F.3d 620, 627 (4th Cir. 2002) (assuming, without deciding, that

students of public universities have a constitutionally protected interest in continued enrollment); Charleston v. Bd. of

Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 772–73 (7th Cir. 2013) (“However, our circuit has rejected the proposition

that an individual has a stand-alone property interest in an education at a state university, including a graduate

education. . . . Instead of accepting a stand-alone interest, we ask whether the student has shown that he has a legally

protected entitlement to his continued education at the university.”).

299 See Goss v. Lopez, 419 U.S. 565, 581 (1975); Doe v. Univ. of Cincinnati, 872 F.3d 393, 399–400 (6th Cir. 2017).

300 Plummer v. Univ. of Houston, 860 F.3d 767, 777 (5th Cir. 2017), as revised (June 26, 2017).

Congressional Research Service

33

Title IX and Sexual Harassment

Due Process Challenges to Procedures Used by Public Universities

in Sexual Assault Investigations

While colleges and universities have developed various procedures to comply with OCR’s

guidance regarding an institution’s response to allegations of sexual harassment,301 a number of

individuals subject to these disciplinary processes have challenged some of these procedures in

federal court. Several courts have since issued decisions in cases brought by students asserting a

due process violation in the context of a Title IX investigation or adjudicatory proceeding.302

The following section discusses recent notable judicial rulings that address the constitutionality of

disciplinary proceedings in the context of sexual misconduct. The discussion below is organized

by the type of claim raised against the public university:

1. the university failed to provide adequate notice of the charges against the student;

2. the university did not permit the accused student to confront and challenge the

credibility of witnesses who testified against him;

3. the university allowed biased decisionmakers to oversee the proceedings; and

4. the university employed unfair review processes when rehearing an allegation

brought by a complainant.303

301 Since the issuance of the 2011 Dear Colleague Letter, many institutions of higher education have altered their

procedures for investigating allegations of sexual harassment and assault. See Emma Ellman-Golan, Saving Title IX:

Designing More Equitable and Efficient Investigation Procedures, 116 MICH. L. REV. 155, 176 (2017) (“OCR's

obligations have spurred schools to create quasi bureaucracies to adjudicate complaints of sexual violence, and these

creations have generated significant backlash. OCR dictates the process through which schools must carry out

investigations and has directed schools to revise their procedures in order to conform to OCR's very specific

guidelines.”); Gersen & Suk, supra note 183, at 909 (“Because the threat of lost federal funds is a big stick to wield,

and because the political climate makes being seen as not opposing sexual violence a public relations

nightmare, all universities have complied rather than challenge OCR’s actions even administratively, much less in

litigation.”); see, e.g., Joint Statement Between Tufts University and Representatives and Organizers of Today's

Undergraduate Student Action, TUFTS UNIV. (May 1, 2014), http://oeo.tufts.edu/sexualmisconduct/joint-statementbetween-tufts-university-and-representatives-and-organizers-of-today%E2%C80%99s-undergraduate-student-action;

U.S. Department of Education Reaches Agreement with the Ohio State University to Address and Prevent Sexual

Assault and Harassment of Students, U.S. DEP'T EDUC. (Sept. 11, 2014), http://www.ed.gov/news/press-releases/usdepartment-education-reaches-agreement-ohio-state-university-address-and-prevent-sexual-assault-and-harassmentstudents; Departments of Justice and Education Reach Settlement to Address and Prevent Sexual Assault and

Harassment of Students at the University of Montana in Missoula, U.S. DEP'T EDUC. (May 9, 2013),

http://www.ed.gov/news/press-releases/departments-justice-and-education-reach-settlement-address-and-preventsexual-assault-and-harassment-students-university-montana-missoula.

302 The constitutionality of the procedures used in campus sexual assault investigations has been the subject of debate.

Compare Jed Rubenfeld, Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process, 96

TEX. L. REV. 15, 68 (2017) (“This means that many of the post-2011 Title IX sexual assault trials that took place, and

still are taking place, all over the country were and are unconstitutional.”) with Michelle J. Anderson, Campus Sexual

Assault Adjudication and Resistance to Reform, 125 YALE L.J. 1940, 1945 (2016) (arguing that “we should support

campus adjudication for sexual assault, and oppose both unique procedural protections for those accused of sexual

assault and mandated penalties for those found responsible for the misconduct”). See also ABA CRIMINAL JUSTICE

SECTION TASK FORCE ON COLLEGE DUE PROCESS RIGHTS AND VICTIM PROTECTIONS, RECOMMENDATIONS FOR COLLEGES

AND UNIVERSITIES IN RESOLVING ALLEGATIONS OF CAMPUS SEXUAL MISCONDUCT 3 (2017),

https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2017/ABA-Due-Process-Task-ForceRecommendations-and-Report.authcheckdam.pdf.

303 Another potential due process issue is the standard of evidence used to adjudicate responsibility for a sexual

harassment allegation. At least one federal district court has rejected a motion to dismiss a claim alleging that the

preponderance of the evidence standard used to determine culpability violated due process. Doe v. Univ. of Miss., No.

3:18-CV-138-DPJ-FKB, 2019 WL 238098, at *10 (S.D. Miss. Jan. 16, 2019). See also Plummer, 860 F.3d at 782

Congressional Research Service

34

Title IX and Sexual Harassment

Importantly, some of the judicial rulings discussed below address whether a student’s stated claim

is sufficient to survive a motion to dismiss and do not reach conclusive determinations about the

evidence sufficient to establish a due process violation.304

Claims Alleging Inadequate Notice of the Charges

One type of legal challenge raised by students accused of sexual misconduct is that the public

universities failed to adequately notify them of the charges. As an initial matter, reviewing courts

have taken the view that there generally will be no due process violation on notice grounds when

the school (1) provides a student with timely notice of the actual, full charges against him; and (2)

provides the accused student with a meaningful opportunity to prepare for the disciplinary

hearing against him.305

The absence of such protocols, however, can form the basis of a viable due process claim. For

example, at one university, an accused student alleged that he was interviewed by a school staff

member assigned to investigate charges of sexual misconduct against him without first being

notified of the existence of the sexual misconduct allegation.306 The student was eventually

suspended from the university. A federal district court ruled that, given the severity of the

suspension (three years), the lack of notice could amount to a due process violation. The court

thus held that the student had stated a claim sufficient to survive a motion to dismiss.307

In another case, an accused student alleged that he was not given adequate notice of the scope of

charges against him.308 Rather, the school only notified him that his conduct on a particular day

was under review, but expelled him for sexual misconduct that occurred in relation to other

incidents and dates. The federal district court ruled that “[b]y conveying a limited scope of focus

(Jones, J., dissenting). But see Doe v. Cummins, 662 F. App’x 437, 449 (6th Cir. 2016) (“[A]s the district court

recognized, the facts alleged in appellants’ complaint tend to show that the ARC panel did not place the burden of

proof on either party. Rather, the panel functioned as a board of inquiry, reaching its conclusion based on a

preponderance of the evidence. Allocating the burden of proof in this manner—in addition to having other procedural

mechanisms in place that counterbalance the lower standard used (e.g., an adequate appeals process)—is

constitutionally sound and does not give rise to a due-process violation.”).

304 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007))).

305 See, e.g., Cummins, 662 F. App’x at 447 (“Appellants received adequate notice of the charges against them and a

sufficient opportunity to prepare a defense.”); Plummer, 860 F.3d at 776 (“[E]ven if the University could have provided

notice further in advance of the hearings of the identities of relevant witnesses and other evidence, the ultimate

disciplinary decisions were conclusively supported by the videos and photo, about which McConnell and Plummer had

full knowledge.”); Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d 242, 263 (D. Mass. 2018) (“These written and

oral communications are more than enough to satisfy the notice requirements of the due process clause of the

Fourteenth Amendment.”); Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 638 (6th Cir. 2005).

306 Sterrett v. Cowan, 85 F. Supp. 3d 916, 927 (E.D. Mich. 201

This text is long and has been trimmed here. Open the source document for the complete record.