Title IX: A Brief Overview of Schools’ Responsibility
By Vickie L. Henry
Youth Initiative Director & Senior Staff Attorney
Gay & Lesbian Advocates & Defenders
Harvard Law School
In the First Circuit, when has a school liable for damages for harassment under Title IX? What factors determine whether a Title IX action will survive summary judgment? These are important questions for a school to consider as it confronts issues of harassment based on sex. Of course, these are not the only questions for a school to consider. Schools also must consider obligations under state law as well, such as a state’s anti-bullying law, anti-discrimination law, and civil rights statutes. The practical litmus test is this: taking all the facts into account, does the school look like a good actor or a bad actor? Err on the side of caution. And if the school acts but the harassment continues, do something more and do something different, keeping at it to stop the harassment.
- Schools with better school climate have better student performance.
Schools are much like everyone else, you hope they do the right thing because it is the right thing to do (and the law requires it). But just in case, it is good to explain what’s in it for the school. In the context of harassment and bullying, the case is easy because it is what we all want – better student performance.
Too many lesbian, gay, bisexual, transgender and queer (LGBTQ) youth experience a hostile school climate. More than 85% percent of students have experienced harassment based on their sexual orientation or gender identity. LGBTQ black and Latino youth are especially victimized, with more than 20% of both black and Latino LGBTQ youth reporting experiencing physical harm. Likewise, two-thirds of transgender students report feeling unsafe in school because of their sexual orientation and how they express their gender. More than 20% of transgender young people say they have had to drop out of school due to harassment.
Despite the staggering levels of harassment and assault that LGBTQ students face in school, 57% do not report incidents to staff members. Students cite doubt about the effectiveness of interventions and fear of escalating the situation. Over 61% of students who did report say that staff did nothing in response.
Schools can take action to improve school climate and their learning environment. Students in schools with a gay/straight alliance (GSA) (or gender sexuality alliance or the like) report feeling safer and experiencing less victimization based on their actual or perceived sexual orientation or gender identity. GSAs are particularly important in middle schools. LGBT middle school students fare worse than LGBTQ high school students on every indicator of school climate, yet have less access to LGBTQ resources and supports.
Schools with better school climates exhibit better individual and school-wide academic outcomes, including higher standardized test scores. Schools with higher rates of bullying consistently perform worse on state tests. Students who experience higher levels of victimization and discrimination based on their sexual orientation or gender expression have lower GPAs and are three times as likely to have missed a day of school in the past month because of safety concerns.
- Introduction to Title IX
Title IX prohibits discrimination “on the basis of sex…under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX thus applies to any educational institution, public or private, that receives federal funding. Although the text refers only to harassment on the basis of sex, Title IX covers harassment based on gender identity or non-conformance with stereotypical gender norms. United States Dep’t. of Ed. Office for Civil Rights, Questions and Answers on Title IX 5 (Apr. 29, 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf. Harassment can come from members of the opposite sex or the same sex. See United States Dep’t of Educ. Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 25-26 (January 2001), http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf; see also Letter from Russalyn Ali, Asst. Sec’y, U.S. Dep’t of Educ., to State Educ. Dep’ts (Oct. 26, 2010), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
Title IX also can cover lesbian, gay, bisexual, or queer students if the harassment is based on failure to conform to sex stereotypes.United States Dep’t. of Ed. Office for Civil Rights, Questions and Answers on Title IX 5 (Apr. 29, 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf; see, e.g., Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1092 (D. Minn. 2000) (“[B]y pleading facts from which a reasonable fact-finder could infer that he suffered harassment due to his failure to meet masculine stereotypes, plaintiff has stated a cognizable claim under Title IX.”); see also Theno v.Tonganoxie Unified Sch. Dist., 377 F. Supp. 952, 965 (D. Kan. 2005) (“In this case, a rational trier of fact could infer that plaintiff was harassed because he failed to satisfy his peers’ stereotyped expectations for his gender because the primary objective of plaintiff’s harassers appears to have been to disparage his perceived lack of masculinity.”); Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 879-80 (N.D. Ohio 2003) (“[G]ender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination . . . .”). Cf. Roe v. Gustine Unified Sch. Dist., 678 F. Supp. 1008, 1027 (C.D. Cal. 2009) (indicating that “the use of gender-based or sexually loaded insults such as “fag” or “homo” can certainly be indicative of animus on the basis of gender, but the use of such terms without more is not necessarily sufficient to establish gender discrimination.”); Ray v. Antioch Unified School Dist., 107 F. Supp. 2d 1165, 1170 (N. D. Cal. 2000) (denying defendant-school district’s motion to dismiss on the ground that the harassers were members of the same sex as the victim and finding “no material difference between the instance in which a female student is subject to unwelcome sexual comments and advances due to her harasser’s perception that she is a sexual object, and the instance in which a male student is insulted and abused due to his harasser’s perception that he is a homosexual, and therefor a subject of prey”).
The text of Title IX does not explicitly authorize individuals to sue for damages, but the Supreme Court has recognized the existence of this right since shortly after Title IX’s inception. See Cannon v. Univ. of Chicago, 441 U.S. 677, 694 (1979). A school district can be held responsible for failure to intervene in both teacher-student harassment, Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274 (1998), and student-student harassment, Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).
To prevail under Title IX, a plaintiff must show that the school was deliberately indifferent to harassment of which it had actual knowledge, and the harassment was so severe and pervasive as to effectively deny the student access to an education. Recent First Circuit cases have mostly turned on the issue of deliberate indifference and whether a school’s actions or failure to act were reasonable. But before determining the reasonableness of the school’s actions, plaintiffs must first establish that an appropriate person at the school had actual knowledge of the harassment.
- An appropriate person must have actual knowledge of the harassment.
Under Title IX, an “appropriate person” must know about the harassment and have “an opportunity to rectify the violation.” Gebser, 524 U.S. at 290 (citing 20 U.S.C. § 1682). An appropriate person is “at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.” Id. Thus, a complaint must allege an appropriate person at the school had actual knowledge of the harassment. It also is critical to determinate which school employees are appropriate and that may vary depending on the facts of a given case.
For example, in a case where a bus driver who was not under the principal’s control allegedly assaulted a student, the court found that a school principal may not have been an “appropriate person” under the definition of the statute. Santiago v. Puerto Rico, 655 F.3d 61, 74 (1st Cir. 2011) (citation omitted). That is a factual matter that has to be pleaded and proved. In this case, even if the principal was an “appropriate person” with authority to take disciplinary action, the claim failed because the plaintiff failed to assert the principal had actual knowledge.
|Practice tip: Families tend to make reports of harassment by speaking with school personnel. Families or counsel should follow up in writing, either by email or letter, to establish actual knowledge. This is especially true if busy school personnel do not respond to a request for a meeting. Once counsel become involved, counsel also can sum up past reports to make a powerful record of a school’s failure to act or even make itself available to receive notice.|
In the case of student-student harassment, a teacher would likely be an appropriate person for students to report harassment to. See Montgomery v. Independent Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1099 (D. Minn. 2000) (“Because teachers ordinarily maintain at least some level of disciplinary control over their students, it is reasonable to infer that they had authority to take disciplinary action and to institute other corrective measures to end the harassment.”); see also Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1247 (10th Cir. 1999) (“Where the victim is complaining about a fellow student’s action during school hours and on school grounds, teachers may well possess the requisite control necessary to take corrective action to end the discrimination.”) (internal citation omitted). A state bullying law may make the case even stronger. In Massachusetts, school employees must report bullying incidents, including bullying based on sex. Mass. G.L. c. 71, § 37O(g).
- Where an appropriate person has actual knowledge of harassment, a school shows deliberate indifference when its response to the harassment is unreasonable.
A school is deliberately indifferent “only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. A school is not liable for the actions of the harasser but for its inability to stop the harassment once an appropriate person became aware of it. See id. at 641. Additionally, where a school’s actions were reasonable but more effective measures may have been available, “courts should refrain from second guessing the disciplinary decisions of school administrators.” Id. at 648 (citing New Jersey v. T.L.O., 469 U.S. 325, 342-43, n. 9 (1985)). If the response to the harassment is reasonable, the court will not fault the school for not using the most effective means. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 173 (1st Cir. 2007), rev’d on other grounds, 555 U.S. 246 (2009).
|Practice tip: While the law does not require the school district to take measures recommended by parents, a parent is more likely to perceive that the school has behaved reasonably if the school adopts the parent’s suggested measures. Furthermore, a parent who believes the school’s response was inadequate is more likely to want to hold the school liable if the harassment continues. For this reason, a prudent school may want to consider strategies advocated by parents to avoid creating this tension. At the least, a school should be able to explain to a parent why it is taking one course of action over another.|
- A reasonable response that protects a school from liability under Title IX may include separating the alleged harasser from the target student or taking other similar measures to protect the target student from continuing harassment.
In Porto v. Town of Tewksbury, the parents of a student in special education brought suit under Title IX. 488 F.3d 67 (1st Cir. 2007). The target student had “various sexually charged incidents” with another boy in his special education class for several years and, in fifth grade, he informed his parents that he had engaged in oral sex with this boy on the school bus. Id. at 70. The parents informed the school, and the school had the boys moved to different buses and told teachers and aides to keep the boys separated in school. Id. In seventh grade, the boys again started touching each other. Id. at 71. Classroom aides separated them, and the guidance counselor talked to the boys about inappropriate touching. Id. Finally, on one occasion, the boys were both permitted to leave the classroom unattended at the same time. A teacher found the two in the bathroom where they told the teacher they had just had sex. Id. Although the school had been warned about keeping the boys separate and not permitting them to be together unsupervised, the First Circuit reversed a jury award for the student, finding that “a claim that the school system could or should have done more is insufficient to establish deliberate indifference.” Id. at 73. Because the school took reasonable steps to keep the boys separate, they were not liable for what ultimately transpired between them.
|Practice tip: If the school separates students, it should be careful that any impact of separation is felt by the student committing the harassment and not by the target. Actions by the school that might further isolate the target student or force the target student to bear the impact of a move only exacerbate the harm rather than minimize it.|
- Schools can be held liable under Title IX where their response to harassment was unreasonable in light of the circumstances.
- A school that does not thoroughly investigate allegations of harassment risks a finding that it acted unreasonably.
Where teachers or administrators are alerted to ongoing harassment but do not thoroughly investigate, their actions may rise to the level of deliberate indifference. In a Massachusetts case involving teacher-student harassment, a school district was aware of allegations that a coach may have engaged in inappropriate conduct with a student. The school interviewed the coach and he denied the conduct. Doe v. Bradshaw, 2013 U.S. Dist. LEXIS 131915 (D. Mass. 2013). The coach subsequently raped a different student, Doe, and harassed her verbally and via text messages. Before the school learned of Doe’s rape, it received a report that the coach was having sex with a different (so third) female student. The school interviewed the coach, the girl with whom he allegedly had a relationship, and the girl’s friend; when all three denied the existence of the relationship, the school concluded its investigation. Id. at *5. More allegations arose. Then Doe came forward and eventually sued, alleging, inter alia, that the school’s response to the earlier allegations of inappropriate conduct with a student was unreasonable. The court found that there was a factual question of whether the school’s actions were unreasonable, denying the defendant’s motion for summary judgment on this claim. Id. at *34.
|Practice tip: Schools should consider whether the average parent or citizen/juror would be satisfied with an investigation. If there was an independent witness that the school chose not to interview, does that seem reasonable? If there are allegations the harasser sent harassing text messages or emails and the school does not try to view them, does that seem reasonable? If a school has actual knowledge that a student serially targeted different students and the school has not put in place measures to stop the pattern, does that seem reasonable? Careful counsel for students and their families will examine what the school knew and what it did to determine if the allegations are well-grounded.|
- A school that does not step in to stop harassment or that takes only minimal steps to intervene may be acting unreasonably.
Where school administrators do not appropriately handle students who are harassing others, the school’s minimal response likely rises to the level of deliberate indifference. In Doe v. Town of Stoughton, a student was harassed after a nude photo of her was disseminated to her classmates. 2013 U.S. Dist. LEXIS 167334 (D. Mass. 2013). The school knew who had disseminated the photographs and who may have had copies of them; school personnel gave some of the offenders “a stern ‘talking to’” but did not speak to all the students who they believed had copies of the photos. Id. at *7. The court denied the town’s motion for summary judgment, finding that a jury could find that the administrators’ decision not to discipline the offending students constituted deliberate indifference. Id. at *8.
- A school that continues to take measures which it knows are ineffective may be acting unreasonably.
If a school is aware that its efforts to address harassment are not succeeding and does not attempt to change or improve these methods, the school’s behavior may constitute deliberate indifference. Recent First Circuit cases have not dealt with this specific issue, but other circuits have found that a school that continues to follow a policy it knows to be unsuccessful is not responding reasonably to the harassment. See, e.g., Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir. 2000) (“Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.”); see also Zeno v. Pine Plains Central Sch. Dist., 702 F.3d 655, 669-70 (2d Cir. 2012) (upholding a $1 million jury award for school liability under Title VI of the Civil Rights Act for harassment based on race by different harassers against the same student where the school’s response to harassment was delayed and failed to stop the harassment).
|Practice tips: 1. Schools should be particularly concerned about students who serially harass several other students. Such a student is not getting the message that harassing behavior is not acceptable. The school should not just look at each individual incident but the pattern of behavior that is emerging. 2. Schools also should be concerned when one student is targeted by several others serially. This pattern of behavior indicates a school climate problem that needs to be address systemically.|
- Schools may be liable for failure to stop harassment that is so severe and pervasive as to deprive the target of access to an education.
Schools cannot be held liable for all instances of harassment. For example, “[d]amages are not available for simple acts of teasing and name-calling among school children…even when these comments target differences in gender.” Davis, 526 U.S. at 652. Schools are only liable for harassment that causes severe harm: “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.” Id. at 651.
“A wide variety of alleged harms” may be severe enough for Title IX liability. Julie Davies, Assessing Institutional Responsibility for Sexual Harassment in Education, 77 Tul. L. Rev. 387, 428 (2002). In the First Circuit cases where plaintiffs have prevailed, the harm has usually included the student’s withdrawal from school. Where the student has to withdraw from school and seek mental health services as a result of the harassment, the harm is likely severe enough to satisfy this standard. See, e.g., Doe v. Bradshaw, 2013 U.S. Dist. LEXIS 131915 (D. Mass. 2013) (surviving summary judgment where student withdrew from school, was declared a Child in Need of Services, and was hospitalized for PTSD following assault by a teacher); see also Doe v. Town of Stoughton, 2013 U.S. Dist. LEXIS 167334, *5 (D. Mass. 2013) (surviving summary judgment where the harassment caused plaintiff to develop an eating disorder, attempt suicide, and withdraw from school). Thus, the cases where plaintiffs have prevailed have included significant evidence that the student’s education was interrupted as a result of the school’s failure to intervene.
- Under Title IX, schools should treat transgender students consistent with their gender identity.
The United States Department of Justice has now intervened under Title IX in numerous matters involving schools that fail to respect a student’s gender identity. The Department settled a matter involving the Arcadia, California, school district in 2013 after that district refused to allow a transgender student access to bathrooms and housing on a school trip consistent with the student’s gender identity (see attachments).
The resolution requires the school district to treat the student consistent with his gender identity and allow access to sex-segregated facilities such as bathrooms consistent with the student’s gender identity. The school also must keep his transgender status private, including the student’s birth name. Specifically, as to the individual student, the school must:
- provide the Student access to sex-specific facilities designated for male students at school consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
- provide the Student access to sex-specific facilities designated for male students at all District-sponsored activities, including overnight events and extracurricular activities on and off campus, consistent with his gender identity; however, the Student may request access to private facilities based on privacy, safety, or other concerns;
- treat the Student the same as other male students in all respects in the education programs and activities offered by the District; and
- ensure that any school records containing the Student’s birth name or reflecting the Student’s assigned sex, if any, are treated as confidential, personally identifiable information; are maintained separately from the Student’s records; and are not disclosed to any District employees, students, or others without the express written consent of the Student’s parents or, after the Student turns 18 or is emancipated, the Student.
Furthermore, the school district agreed to revise its policies to ensure that all students who do not conform to sex stereotypes, including transgender students, have equal access and opportunity to participate in all of the district’s activities and programs. Those policy changes will be complemented by district-wide training for personnel and students. The implementation of this agreement will be overseen by a qualified expert agreed upon by the district and federal government.
More recently, the Department of Justice and the Department of Education filed a statement of interest in Tooley v. Van Buren Public Schools, a federal lawsuit in the Eastern District of Michigan. As explained by the government:
In this case, the plaintiff, a transgender boy, alleges that several Michigan school districts unlawfully subjected him to harassment and denied him equal treatment and benefits based on his sex. In the statement of interest, the departments advised the court that Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prohibit discrimination against students because of their sex, including on the basis of a student’s gender identity, transgender status, or nonconformity to sex stereotypes. The departments concluded that plaintiff’s claims of sex discrimination under Title IX and the Equal Protection Clause were sufficient to deny the motion to dismiss filed by defendant Wyandotte Public Schools.
Accordingly, pursuant to Title IX as well as the Massachusetts Act Relative to Gender Identity, schools should treat transgender students consistent with their gender identity and anticipate where these issues might arise. Generally, any policy, program, or teaching lesson that involves wardrobe (especially dressing up), separating students by gender, and pairing students by gender may raise a concern, including:
- Historical reenactments
- Graduation robes (if boys wear one color and girls another)
- National Honors Society ceremonies
- Public speaking/declamation that involves formal clothing
- Any public announcement or award to the student by name, such as student of the month (if the student uses a name other than the one assigned at birth)
- Lining up in class by gender (this is almost always painful for gender non-conforming children so unless there is a pedagogical reason to so separate children, why do it?)
Staff that are not in regular contact with students – such as substitute teachers and bus drivers – can be particularly problematic. If the paperwork substitutes have lists a student’s name assigned at birth rather than their chosen name, the substitute may expose the student to ridicule of peers by flagging the student’s transgender status.
A school district is liable for harassment where an appropriate person had actual knowledge that the harassment was occurring, where the school responded to the harassment with deliberate indifference, and where the student was deprived of an education as a result. Schools should evaluate every situation, thoroughly investigate reports of harassment and appropriately handle the harassers. Schools also should evaluate school policies to determine whether the policies adequately address the needs of transgender students.
 Preston Mitchum and Aisha C. Moodie-Mills. Beyond Bullying: How Hostile School Climate Perpetuates the School-to-Prison Pipeline for LGBT Youth, Center for American Progress, 2014.
 Playgrounds and Prejudice: Elementary School Climate in the United States. Gay, Lesbian & Straight Education Network (GLSEN), 2012.
 “Beyond Bullying.”
 Joseph G. Kosciw et al. The 2013 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools. Gay, Lesbian & Straight Education Network (GLSEN), 2014.
 Ann Lacey and Dewy Cornell. The Impact of Teasing and Bullying on Schoolwide Academic Performance. Journal of Applied Psychology, 2013. See also Angus J. MacNeil et. al. The Effects of School Culture and Climate on Student Achievement. International Journal of Leadership in Education, 73(80), 2009; Build Trust, End Bullying, Improve Learning: Highlights Evaluation of The Colorado Trust’s Bullying Prevention Initiative. The Colorado Trust, 2008.
 The 2013 National School Climate Survey, 2014.