A federal appeals court ruling focuses new attention on the duties of school districts to prevent and respond to student-on-student sexual harassment, especially in an era when sexually explicit content is spreading easily on social media.
A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, has revived two Title IX sexual harassment cases alleging that the Nashville school district failed to respond adequately to incidents in which videos of female high school students engaged in sex acts with male students were circulated on social media.
The appellate panel ruled 2-1 to reinstate the claims against the Nashville district over incidents in 2016 and 2017.
The majority cited evidence that the school district, over a four-year period before the incidents in question, had documented 950 instances of sexual harassment and more than 1,200 incidents of inappropriate sexual behavior, with many cases involving “students taking and/or distributing sexually explicit photographs or videos of themselves or other students.”
And the district allowed school principals to handle responses to such incidents and did not involve the district’s Title IX coordinator, despite federal guidance that the coordinator should address all complaints involving Title IX issues, the court said in its May 19 decision in Doe v. Metropolitan Government of Nashville and Davidson County.
The dissenting judge said the majority’s ruling was a “significant enlargement of school district liability for student-on-student sexual harassment under Title IX.”
Title IX rules on sex harassment are under scrutiny
The decision comes at a time when legal and regulatory guidance is in flux for Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools. The Biden administration is rewriting formal regulations on Title IX, including how schools should respond to sexual assaults and harassment. And just this week, the U.S. Supreme Court asked the administration to submit its views in a pending appeal by a Virginia school district in a Title IX case involving the district’s response to alleged sexual assault of a student by another student on a school bus trip.
The Nashville case involves a female student, identified in court papers as Jane Doe, who was a high school freshman in 2016 when four male students “brought unwelcome sexual activity” to her, as the court described it, in a school stairwell. A video of the incident circulated among students, court papers say. The student soon transferred schools.
The other incident involved a freshman at a different Nashville high school identified as Sally Doe. In 2017, she was led to a restroom by a male student and pressured into performing oral sex, court papers say. School administrators learned the students were in the bathroom together, but Doe said that nothing more than kissing had occurred. More than a month later, a video of the sexual incident was posted on Instagram. When Doe’s mother went to an assistant principal, the administrator told her the incident was now a criminal matter and that she should contact police. (The 6th Circuit decision does not detail whether any police investigation ensued.)
Both girls sued the district under Title IX. A federal district court granted summary judgment to the district. But the 6th Circuit court, in its decision this week, revived both girls’ cases.
The court characterized the girls’ claims as having two theories of liability. One related to the district’s actions before the alleged incidents involving them, and the other involving the district’s response after their incidents were reported to them.
In reviving the suits bases on the “before” theory, the appeals court cited the evidence of the large number of student-on-student sexual harassment claims that had been documented in the four years before 2016.
“As the disciplinary records cited by Jane Doe and Sally Doe demonstrate, MNPS was aware of issues with sexual harassment in the school system well before the two students reported their incidents,” Judge Julia Smith Gibbons wrote for the majority.
To hold that the district was not liable under a separate 6th Circuit precedent about isolated sex harassment incidents “would defeat Title IX’s purpose of eliminating systemic gender discrimination from federally funded schools.”
When it came to the girls’ “after” theory, the court said the school district had potentially responded inadequately to both incidents.
“A reasonable jury could conclude that, rather than take steps to remedy the violation, MNPS opted to avoid the problem,” the court said regarding Sally Doe’s claims.
Writing in dissent, Judge Ralph B. Guy Jr. said the majority had misapplied several Supreme Court and 6th Circuit precedents on sexual harassment in schools.
“The urge to want to blame someone for failing to prevent the sexual misconduct inflicted on Jane in the stairwell and Sally in the bathroom—albeit by different perpetrators at different high schools—and the subsequent peer-to-peer sharing of videos of those encounters cannot justify supplanting or side-stepping what is required to hold a school district liable under Title IX,” Guy said.
