A federal appeals court on Thursday held that a Pennsylvania school district was not liable under Title IX for an assistant principal’s sexual relationship with a student, rejecting the student’s theory that her abuser was an “appropriate” district official with knowledge of the harassment and the authority to remedy it.
“We hold that a perpetrator of sexual harassment who has authority to remedy Title IX violations is not an appropriate person for assessing a school district’s Title IX liability in a private right of action,” said a unanimous opinion by a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.
The decision in M.S. v. Susquehanna Township School District comes in a high-profile case in which Shawn A. Sharkey, a special educator and assistant principal, carried on a sexual relationship with a 16-year-old female student. According to court papers, rumors of the relationship spread among students in early 2013, and administrators conducted an investigation. But both Sharkey and the student identifed as M.S. denied a relationship, and an examination of their emails and texts failed to turn up evidence of anything inappropriate. The school superintendent ended the investigation in consultation with the district’s lawyer, court papers say.
In September 2013, the rumors resurfaced, and the district brought in the police. After police threatened to get a search warrant for M.S.'s phone, she acknowledged and provided details about the relationship.
Sharkey resigned from his job and later pleaded guilty to sexual contact with a minor and other charges. He was sentenced to six to 18 months in a work-release program.
M.S. and her mother sued the Susquehanna district and Sharkey under Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools. The suit alleged that the district failed to respond adequately to the sexual harassment of M.S.
A federal district court dismissed some of the family’s claims and later issued summary judgment to the district on a claim of a hostile sexual environment. The district court entered a default judgment against Sharkey and ordered him to pay $700,000 in damages.
The key issue in the family’s appeal to the 3rd Circuit court was whether a perpetrator of sex-based harassment who has authority to address Title IX violations is an “appropriate person” within a school district for purposes of holding the district liable.
Lawyers for the family argued that under the U.S. Supreme Court’s 1998 decision in Gebser v. Lago Vista Independent School District, a key decision on school district liability under Title IX, once any appropriate person has knowledge of the harassment, including when the perpetrator is someone with authority to address such violations, then the district would be liable if that official was deliberately indifferent to the harassment.
“When an appropriate person himself ... causes the Title IX violation, knowledge by another appropriate person is not required,” lawyers for M.S. argued.
The 3rd Circuit court disagreed. The court said M.S.'s approach has “some intuitive appeal” but it was expressly rejected by the Supreme Court in its Gebser decision.
“A perpetrator’s knowledge of his own Title IX discrimination does not satisfy Gebser‘s actual-knowledge requirement even if the perpetrator would otherwise be an appropriate person,” the 3rd Circuit court said. “For a school district to have actual knowledge, a report must be made to an appropriate person who is not the perpetrator.”
The decision said only one other federal appeals court has ruled on the question of whether the perpetrator may be an appropriate official, and that court reached the same conclusion as the 3rd Circuit. (The Supreme Court declined to take up an appeal of that decision in 2017.)
The 3rd Circuit court went on to say that “when an authorized official perpetrates sexual harassment in violation of a school district’s stated policy, that person’s failure to respond could not constitute deliberate indifference on behalf of the school district.”
Once the Susquehanna district had actual knowledge of the inappropriate relationship, it took action, the court said.
“Here, before September 2013, appropriate people did not have actual knowledge of either Title IX discrimination by Sharkey or of facts showing that he posed a substantial danger to students,” the court said. “At most, appropriate people had information—which they did not ignore—suggesting the possibility of a sexual relationship between M.S. and Sharkey. The known facts before September 2013 were insufficient to impose liability on the school district under an actual-knowledge standard.”
A version of this news article first appeared in The School Law Blog.