The Sixth Circuit Court of Appeals, whose decisions are binding on Michigan schools, recently issued a decision interpreting Title IX. S.C. v Metropolitan Government of Nashville & Davidson County, Tennessee, Docket No. 22-5125 (CA 6, November 15, 2023). This decision provides a framework for school officials handling Title IX claims.
S.C., a high school student at Metro Nashville Public Schools (District) was recorded engaging in sexual activity with a classmate on school grounds. S.C. alleged that she did not consent to the sexual activity, nor did she consent to it being recorded. The video spread rapidly both throughout the school and online.
Students in the District had a history of circulating videos or photographs of other students engaging in sexual activities. The videos often resulted in female students being ridiculed and male students becoming popular.
The same evening as the assault, the District scheduled a meeting with S.C. and her parents to discuss the incident. Classmates immediately began harassing and threatening S.C. about the video and her impending meeting with the school officials. During the District meeting, S.C. provided a written account of the incident and provided names of students who engaged in threatening and harassing behavior. Although S.C. alleged the encounter was non-consensual, the District suspended S.C. for three days. A few days later, S.C.’s mother followed up with the District about the threats S.C. was receiving, and the District told S.C. to address her concerns with the police. At no point did the District involve the Title IX Coordinator or initiate the Title IX process, nor did it investigate the threats that occurred after the incident.
S.C. then entered an in-patient facility for support and treatment services. She transitioned to remote learning for the remainder of the year. The threats to S.C. continued for the rest of the year, and S.C.’s family subsequently moved to another county for the next school year. S.C.’s grades declined significantly, she abused drugs and alcohol, and she began engaging in self-harm. S.C. sued the District, alleging that it was deliberately indifferent to harassment she suffered related to her sexual assault and later participation in the sexual misconduct investigation. In her suit, S.C. raised three claims: (1) a Title IX “before” claim, alleging that the District was deliberately indifferent to widespread, gendered misconduct before she was assaulted; (2) a Title IX “after” claim, alleging that the District was deliberately indifferent to the harassment and threats that she was subjected to after the assault occurred; and (3) a Section 1983 claim alleging equal protection violations.
The trial court found the District not liable on S.C.’s Title IX “before” claim and Section 1983 claim, determining that a school could not be liable for a first instance of sexual harassment or its response to that incident. However, the trial court found the District liable on S.C.’s Title IX “after” claim because the District knew that S.C. was being harassed and threatened but took no action in response. Both parties appealed.
Title IX “Before” Claim
The Sixth Circuit opined that a student may prevail on a Title IX “before” claim if they can establish that: (1) the school maintained a policy of deliberate indifference for sexual misconduct reports; (2) this indifference created a heightened risk of sexual harassment that was known or obvious; (3) the risk of harassment was within the school’s control; and (4) as a result, the student suffered harassment that was so severe, pervasive, and objectively offensive that it deprived the student access to the school’s opportunities or benefits.
The Sixth Circuit remanded S.C.’s Title IX “before” claim to the lower court with instructions to determine whether there was sufficient evidence to establish each element of this Title IX “before” claim.
Title IX “After” Claim
A school may be found to be deliberately indifferent for student-to-student sexual harassment, including threats and harassment that stem from a student’s participation in a sexual harassment investigation, if the District’s response to the harassment is clearly unreasonable in light of the known circumstances.
The Sixth Circuit affirmed the trial court’s decision that the District was liable on S.C.’s Title IX “after” claims for its deliberate indifference to the threats made against S.C. The Sixth Circuit explained that, although the District was aware of the continuing and severe threats against S.C., it failed to act in accordance with its Title IX obligations. As a result of its inaction, the District enabled the threats and harassment to continue.
Section 1983 Claim
In S.C.’s Section 1983 claim, she asserted that the training the District provided to its employees was inadequate, as the District failed to address the school-wide sexual harassment and bullying. The Sixth Circuit remanded the issue of improper training to the trial court.
Conclusion
This case serves as a reminder that schools may be liable for deliberately indifferent conduct before and after a student is sexually harassed. To avoid liability, school officials should be vigilant of their school’s climate regarding sexual harassment.