United States: Notice And Response Obligations Clarified Under OCR's July 2021 Title IX Q&A

July 2021 Title IX Q&A

In July 2021, the United States Department of Education, Office for Civil Rights (OCR) issued Questions and Answers on the Title IX Regulations on Sexual Harassment (the Q&A), which clarified how OCR interprets schools' existing obligations under the Title IX regulations that went into effect Aug. 14, 2020. The 2020 regulations and preamble, which together span more than 2,000 pages in length, added specific, legally binding steps that trigger a school's obligation to comply with Title IX: a school must promptly respond in a manner that is not deliberately indifferent when it has actual knowledge of actionable Title IX sexual harassment in an education program or activity. The Q&A serves as a more user-friendly starting point for accessing and understanding the key requirements of the 2020 regulations.

Under Title IX, "sexual harassment" includes certain types of unwelcome sexual conduct, sexual assault, dating violence, domestic violence, and stalking. See Q&A No. 5; 34 CFR § 106.30(a). An institution has "actual knowledge" of sexual harassment when notice is received by the Title IX Coordinator or another official who has authority to institute corrective measures on the institution's behalf, or by any employee of an elementary and secondary school. See Q&A No. 14; 34 CFR § 106.30(a). Because whether an official has authority to institute corrective measures depends on facts specific to each institution, the Q&A does not provide examples of officials who have this authority. Q&A No. 14. The mere obligation to report sexual harassment, however, does not automatically convert an individual to an official with authority. 34 CFR § 106.30(a).

A school is required to respond if it has notice of alleged sexual harassment, even if it is not certain whether the harassment has occurred. See Q&A No. 18. Actual knowledge refers to notice of conduct that could constitute sexual harassment. Id. Thus, a school must respond when it receives notice of alleged facts that, if true, could be considered harassment under the 2020 regulations. Id. However, "[i]mputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge." 34 CFR § 106.30(a).

In addition, a school must respond to allegations of sexual harassment, regardless of whether a formal complaint is filed, "promptly in a manner that is not deliberately indifferent." See Q&A No. 20; 34 CFR § 106.44. A school is "deliberately indifferent" "only if its response to sexual harassment is clearly unreasonable in light of known circumstances." Id. Therefore, following receipt of an allegation of sexual harassment, the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, and to explain the process for filing a formal complaint. Id. The regulations do not require schools to impose particular remedies when a respondent is found responsible for sexual harassment. See Q&A No. 21. Instead, each school is free to make disciplinary and remedial decisions it believes are in the best interest of its educational environment. Id.

A "formal complaint" is a document filed by a complainant alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment. See Q&A No. 22; 34 CFR § 106.30. Complainants include students who are not currently enrolled or attending the school if they are participating or attempting to participate in the school's education program or activity at the time they file the formal complaint. See Q&A No. 23. The Title IX Coordinator also may file a formal complaint based on alleged sexual harassment by a complainant who is not associated with the school in any way. See Q&A No. 24. In some circumstances, the Title IX Coordinator must file a formal complaint regardless of the complainant's relationship with the school. For example, if a school "has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority," a school may be found to be deliberately indifferent if the Title IX Coordinator does not file a formal complaint. Id.; 85 Fed. Reg. at 30,089.

Key Takeaways From Recent Case Law

Since the OCR's publication of the 2020 regulations on May 19, 2020, several recent federal cases have analyzed the notice and response obligations under Title IX. As outlined below, the key takeaways from these cases are consistent with the OCR's recent Q&A guidance and provide further insight as to how courts will interpret the definitions of "actual knowledge" and "deliberate indifference" in light of the relevant facts.

Actual Knowledge

In Posso v. Niagra Univ., No. 19-CV-1293-LJV-MJR, 2021 WL 485699 (W.D.N.Y. Feb. 10, 2021), current and former female students asserted Title IX claims against the university arising from sexual and gender-based harassment of female members of the swim team by male members, as well as a sexual assault of a female non-member by a male member. The court found that the students had sufficiently alleged that the university had actual notice of the risk of sexual assault by a male member of its swim team. Id. at *10. Specifically, the students alleged that the swim team culture was one defined by degradation, sexualization, and objectification of women, that such culture taught male swimmers that they could harass and hurt women without consequence, and that the risk of sexual assault in such a culture was foreseeable. Id. at *8-10.

The court also found that although the assaulted female was not a member of the swim team, the university also had actual notice of the particularized risk of sexual misconduct posed by the male swimmers. At the time of the assault, the university had known about the sexual misconduct within the swim team for at least two years, knew that there was a general lack of supervision of the team that enabled or allowed the misconduct, and did not take remedial measures to address the individual instances of sexual misconduct or make changes to the structure of the team. Id. at *10-11. Plaintiffs had reported the harassment to six different university officials and campus security over the course of two years, all of whom failed to report the harassment, address the complaints, or take any remedial action. Id. at *3-4. As a result, the court held a jury could interpret the university's actions as an official decision not to remedy the culture of sexual misconduct within the swimming team. Id. at *8.

Takeaway: A university will be found to have actual knowledge of sexual misconduct when multiple officials with authority are on notice of the risk of sexual misconduct posed by an individual or group on an ongoing basis. See Q&A No. 14. Additionally, the fact that a complainant is not a member of the group — in this case the swim team — has no bearing on whether a university has actual notice of the risk of sexual misconduct.

In Doe v. Fairfax Cty. Sch. Bd., 1 F.4th 257 (4th Cir. 2021), a former student brought an action against the school board alleging that the school's administrators acted with deliberate indifference to reports that she had been sexually harassed by another student while traveling on a bus during a school band trip. The court found that no evidence in the record supported the jury's conclusion that the school board lacked actual notice of a student's alleged sexual harassment. Id. at 269. The school administration concluded that what happened on the bus did not amount to sexual assault despite the student's written statement to the assistant principal describing a fellow student's attempt to move her hands onto his genitals and to put his hands up her shirt and down her pants, verbal statement to the assistant principal that she did not believe sexual contact was consensual, and school officials' receipt of reports from other students alleging that the student had been sexually harassed. Id. at 261-262.

Fairfax squarely addressed what constitutes a school's actual knowledge in Title IX cases, holding "when a school official with authority to address complaints of sexual harassment and to institute corrective measures receive[s] a report that can objectively be construed as alleging sexual harassment, that receipt establishes actual notice of such harassment for Title IX purposes." Id. at 265. This is an objective inquiry into whether an appropriate official in fact received such a report or complaint and whether a reasonable official would construe it as alleging misconduct prohibited by Title IX. Id. at 268. As a result, under this actual-notice standard, the court found the jury's finding wholly lacked evidentiary support because the record contained extensive evidence confirming the school board, through appropriate officials including the assistant principal, received multiple reports that objectively provided notice of an allegation the plaintiff had been sexually assaulted. Id. at 269. Thus, a new trial was warranted. Id. at 270.

Takeaway: The actual-notice requirement will be satisfied by a school's receipt of a report or complaint by an official with authority, such as an assistant principal, objectively alleging sexual harassment. A school's determination as to whether the alleged harassment actually occurred is irrelevant to the actual-notice requirement. See Q&A No. 18.

In Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351 (5th Cir. 2020), a high school student who was sexually harassed and abused by two school employees brought an action against the school district alleging the district responded with deliberate indifference to known abuse. The court held that the high school's peace officer was not an appropriate person with authority to take corrective action on behalf of the school district in response to the sexual harassment report, and thus, the peace officer's knowledge of the sexual harassment did not constitute actual notice under Title IX. Id. at 363. The peace officer had no power to terminate or discipline employees or to eliminate the hostile environment, and the power to arrest did not equate to the power to institute corrective measures on behalf of the school district. Id. at 360-363.

Takeaway: While determining whether a person has authority to take corrective action on behalf of a school district is a fact-specific inquiry, a school district's peace officer will likely not qualify based on the court's analysis in Edgewood. See Q&A No. 14.

Deliberate Indifference

In Simonetta v. Allegheny Coll., No. CV 20-32, 2021 WL 927534 (W.D. Pa. Mar. 11, 2021), a female member of the college's football team alleged that she was subjected to unwelcome sexual advances from her teammates over the course of two days. The court dismissed the plaintiff's deliberate indifference claim because the harassment plaintiff alleged was neither severe or pervasive enough to satisfy the objective standard of deliberate indifference. Id. at *4. Although the court in no way condoned the conduct, the court found that the allegations fell short of the type of severe and pervasive conduct contemplated by Title IX. Id. The court held that "incidents that are questionably severe, and more offensive than physically threatening or humiliating do not satisfy the objective analysis required of the 'severe or pervasive' element of a plaintiff's prima facie case" of Title IX deliberate indifference. Id.

Takeaway: For a school to be held liable for deliberate indifference, the conduct complained of must be more than questionably severe or offensive to be considered severe and pervasive, which is a high bar. See Q&A No. 20.

In Foster v. Bd. Of Regents of Univ. of Michigan, 982 F.3d 960, 967 (6th Circ. 2020), a female MBA student alleged the university violated Title IX by showing deliberate indifference to her complaints of peer-on-peer sexual harassment. Id. at 962. The court affirmed the district court's grant of summary judgment for the university on the plaintiff's deliberate indifference claim because the university took prompt action to remedy the complaints of sexual harassment. Id. at 967. In applying the deliberate-indifference standard to determine school liability for student-on-student sexual harassment under Title IX, the court asks not whether the school's efforts were ineffective, but whether they amounted to "an official decision...not to remedy the violation." Id. at 968.

The court held the university was not deliberately indifferent as a matter of law because it initiated an investigation and adopted escalating measures following the plaintiff's five complaints of misconduct, leading to the harasser's suspension from class and commencement, a one-way flight home, a three-year ban from campus, a ban from campus events that the student planned to attend, and a permanent notation on his transcript that he had committed sexual misconduct. Id. at 966-967.

Takeaway: Under Title IX, a school may be held liable only for what it can control. A school that attempts to remedy reported sexual harassment is not deliberately indifferent, regardless of whether the attempts are successful. See Q&A No. 21.

In Davis v. Univ. of N. Carolina at Greensboro, No. 1:19CV661, 2020 WL 5803238 (M.D.N.C. Sept. 29, 2020), a student in the university's Doctor of Nursing Practice program was assigned to perform clinical work at local hospitals where she was sexually harassed by a supervisor. In contrast to Foster, the court found there was sufficient evidence of deliberate indifference where the plaintiff was left "vulnerable to harassment" after her initial harassment complaints were ignored and the harassment continued. Id. at *9. After the plaintiff reported the conduct to her superiors, they encouraged her to withdraw her complaint and keep it a secret, did not investigate it, and did not attempt to keep the plaintiff separate from her alleged harasser. The plaintiff was then assigned to work with the same supervisor and the harassment continued. The court held that the plaintiff alleged deliberate indifference by the defendants, who took no action following her complaints of repeated harassment throughout her time performing clinical work. Id. at *7-8.

Takeaway: A school will be found to be deliberately indifferent where it unreasonably takes no action in response to allegations of harassment, leaving the victim vulnerable to continued harassment. See Q&A No. 20.

Conclusion

In sum, Title IX liability requires not only actual knowledge but also proof of deliberate indifference. The July 2021 Q&A, coupled with the recent case law, expand on these Title IX definitions, which trigger a school's compliance. A school has actual knowledge if an official with authority to take corrective action on behalf of the school receives the actual notice. If, after a school receives a report of sexual harassment, it promptly investigates and takes any appropriate remedial action, the school will not be liable because it has not acted with deliberate indifference. However, a school will be held liable for deliberate indifference if it does nothing after receiving reports of severe and pervasive harassment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.