Sixth Circuit Provides Guidance on Title IX Liability Before and After Harassment Claims

Michigan schools have struggled to determine their obligations to students and staff under the 2020 Title IX regulations. The Sixth Circuit Court of Appeals, the federal appellate court whose decisions are binding in Michigan, recently issued an opinion that provides important Title IX guidance for school officials. Doe v Metro Gov’t of Nashville and Davidson Cty, Tennessee (CA 6, 2022).

The case encompasses lawsuits for Title IX violations brought by two female high school students, Jane Doe and Sally Doe, and their parents against their school district, Metro Nashville Public Schools (MNPS).

Jane Doe was a 9th grader at an MNPS high school when four male classmates subjected her to unwelcome sexual conduct in a school stairwell. One of the boys surreptitiously recorded the incident, and the recording was widely circulated by students. Jane’s parents reported the incident to the assistant principal who had two school resource officers (SROs) question Jane. School administrators assured Jane’s parents that it was safe for Jane to return to school. Despite this assurance, Jane enrolled in a new school the next day.

Plaintiff Sally Doe, a 9th grader at another MNPS high school, performed oral sex on a male student in a school bathroom. This act was secretly recorded. School administrators learned only that the students had gone into the bathroom together. Sally told administrators that she and the boy had kissed. Several weeks later, students circulated the video. Sally’s mother reported the video to the assistant principal and SRO and sought assurances that Sally would be protected. The assistant principal told her the situation was a criminal matter, but the school would look out for Sally. For the next year and a half, Sally was called derogatory names, mocked, and grabbed by the buttocks at school.

Jane Doe and Sally Doe alleged that MNPS violated Title IX by its handling of their incidents both before and after they occurred. Under their “before” theory, Jane and Sally alleged there was a widespread sexual misconduct problem at MNPS schools, and MNPS was deliberately indifferent to this widespread problem. MNPS’ disciplinary records revealed that from 2012 to 2016 there were more than 950 instances of sexual harassment, over 1200 instances of inappropriate sexual behavior, 45 instances of sexual assault, and 218 instances of inappropriate sexual contact. Many incidents involved students taking and distributing sexual photographs or videos of themselves or other students.

The Sixth Circuit found that MNPS’ process for handling student sexual harassment claims was deficient. Incidents were handled on an individual basis by the principal of the school where the alleged sexual offender was enrolled, contrary to Department of Education guidance in place at the time recommending that the Title IX Coordinator address all complaints raising Title IX issues. The MNPS Title IX Coordinator was not involved in the resolution of the sexual misconduct incidents and was only notified if the untrained principal determined there was a Title IX violation.

The court adopted the following test for a Title IX “before” claim against a school district for student-to-student harassment:

A student must show:

1. the school maintained a policy of deliber­ate indifference to reports of sexual mis­conduct;
2. which created a heightened risk of sexual harassment that was known or obvious;
3. in a context subject to the school’s con­trol; and
4. as a result, the student suffered harass­ment that was “so severe, pervasive, and objectively offensive that it can be said to [have] deprive[d] the [student] of access to the educational opportunities or benefits provided by the school.”

The Sixth Circuit found that MNPS’ disciplinary records established that MNPS was aware of sexual harassment in the school system before the plaintiff students reported their incidents. That knowledge satisfied the court that MNPS maintained a policy of deliberate indifference to reports of sexual misconduct which caused the incidents alleged by Jane Doe and Sally Doe.

For Sally Doe’s claim that MNPS violated Title IX after her report of sexual harassment, the Sixth Circuit noted that:

• the MNPS assistant principal failed to report Sally Doe’s claim to the head of the school or to the Title IX Coordinator;
• the school did not advise Sally or her parents of any steps the school would take to address the consequences of the incident; and
• when Sally continued to be harassed at school, the school did nothing except to assist Sally’s parents with home school arrangements.

The Sixth Circuit concluded that MNPS’ response was “deliberately indifferent,” meaning the school officials' response was clearly unreasonable under the known circumstances, and that MNPS was liable for failing to comply with its Title IX obligations. The court also found the school’s incident report insufficient, noting that the criminal process is separate from the school’s Title IX obligations.

For Jane Doe’s claim that MNPS violated Title IX after her report of sexual harassment, the court recognized that a high school, unlike a university, exercises custodial and protective control over students who are not legal adults. Considering this difference in oversight and recognizing that Title IX liability must be analyzed based on the institutional setting, the court decided that for a Title IX claim in a high school setting there is no requirement that the same victim be victimized twice to establish Title IX liability.

Although this case analyzed Title IX obligations under the current regulations, which are currently being updated, it is likely that a court would reach a similar conclusion under the new regulations. It is important to remember that a school’s actions before and after a sexual harassment report must comply with Title IX.