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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR45685

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** April 12, 2019
- **Citation:** R45685

## Text

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.
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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

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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

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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).

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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”).

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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

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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.

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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

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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”).

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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.

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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.

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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).

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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.

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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’”).

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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).

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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

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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).

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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”).

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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

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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.

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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 r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45685. Public record. Not legal advice.