Law & Courts

Supreme Court Won’t Take Up Cases Seen as Expanding Schools’ Liability for Sexual Harassment

By Mark Walsh — November 21, 2022 4 min read
Thunder storm sky over the United States Supreme Court building in Washington DC.
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The U.S. Supreme Court on Monday declined to hear appeals from a school district and a university arguing that lower courts expanded their liability for sexual harassment of students under Title IX in ways that conflict with previously set standards and go against high court precedent.

The justices offered no comment in denying review in Fairfax County School District v. Doe (Case No. 21-968) and University of Toledo v. Wamer (No. 22-123). The high court did not rule on the merits of those appeals, but rather left in place lower court rulings that several states and education groups had urged the justices to review.

A coalition of state school boards associations from Virginia, North Carolina, and South Carolina said in a friend-of-the-court brief that the federal appeals court ruling in the Fairfax County case threatens to “saddle public schools with crippling liability and litigation” under Title IX of the Education Amendments of 1972. Title IX bars sex discrimination in federally funded schools and has been interpreted to cover peer sexual harassment among students.

The Fairfax school district case involves two high school students—one a junior and one a senior—who engaged in sexual touching while under a blanket on a bus during a school-sponsored band trip. School officials investigated and determined the incident to be consensual. When the mother of the female student involved complained to the district that she believed the sexual activity had not been consensual and that her daughter had been assaulted, school officials stood by their original determination. The district agreed to provide the girl several accommodations, including extra time for assignments and seating away from the boy involved during band class, but did not discipline the boy.

The young woman, identified in court papers as Jane Doe, sued the Fairfax district under Title IX, arguing that officials had been “deliberately indifferent” to the alleged sex assault. A jury issued a complicated verdict finding some facts that supported the girl’s account but issued a verdict for the school district.

On appeal, however, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 last year to reverse the district court and ordered a new trial.

“A school may be held liable under Title IX if its response to a single incident of severe sexual harassment, or the lack thereof, was clearly unreasonable and thereby made the plaintiff more vulnerable to future harassment or further contributed to the deprivation of the plaintiff’s access to educational opportunities,” the 4th Circuit majority said.

The school district sought a rehearing before the full 4th Circuit court, which the full court ruled against granting by a 9-6 vote. One dissenter, Judge J. Harvie Wilkinson, suggested the Supreme Court should take up the district’s appeal and said that Title IX “does not even hint that a school could be held liable for peer-on-peer harassment about which it was only notified after-the-fact.”

In its petition to the high court, the Fairfax County district said the 4th Circuit decision conflicts with the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education. That ruling held that schools could be liable for peer-to-peer sexual harassment, but only when it met a high standard of “deliberate indifference” the court had set in an earlier Title IX case.

The district also argued that there was a split among the federal courts of appeals, with four such circuits having ruled that a single, isolated incident of harassment occurring before school officials learned of it was not enough to trigger liability. But the 4th Circuit panel’s decision joined two other federal circuits in taking a more expansive view of districts’ liability.

In their brief supporting the Fairfax district, the school boards groups from Virginia, North Carolina, and South Carolina said sexual harassment and assault in schools are “reprehensible,” but “where harassment is not attributable to a school’s conduct—as where it occurred without advance warning—Title IX liability cannot follow.”

The Fairfax County case had piqued the interest of the justices, who last May asked the Biden administration to offer its views. In a brief filed in September, U.S. Solicitor General Elizabeth B. Prelogar said there were several reasons the case would make a poor vehicle for considering the Title IX issues. Most significantly, Prelogar said the 4th Circuit had ruled correctly that “Title IX liability is not necessarily limited to cases where a school’s deliberate indifference to an alleged sexual assault causes” additional harassment after school officials had received notice of the alleged assault.

The University of Toledo case stemmed from alleged sexual harassment of a student by a lecturer and raised similar issues about the scope of the educational institution’s liability under Title IX. Nine states had filed a friend-of-the-court brief supporting the university’s appeal of an adverse ruling earlier this year by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. The U.S. solicitor general did not offer an opinion on the case.

So, with its brief order on Monday, the court declined to take up the Title IX issues at this time.

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