On June 22, 1998, the U.S. Supreme Court issued its first decision determining when a student can recover monetary damages from a school district for sexual harassment of the student by an employee. In Gebser v. Lago Vista Independent School District, decided on June 22, 1998, the Supreme Court held that monetary damages cannot be recovered unless a school district official who has the authority to take corrective measures has actual notice of and is deliberately indifferent to the employee's misconduct.
Gebser involved a female student who had a sexual relationship with one of her teachers, Frank Waldrop, beginning in the student's ninth grade year. The student, Gebser, did not report or complain about the relationship to any school official. After the relationship between Gebser and Waldrop had continued for almost two years, a police officer discovered the two engaging in sexual intercourse and arrested the teacher. The School District subsequently terminated Waldrop's employment. During the time when the relationship was occurring, the District had not adopted or distributed either a sexual harassment policy or a student complaint procedure. Also during that time, the District had received complaints about Mr. Waldrop from parents, but the complaints related only to inappropriate comments made in his classroom.
Gebser filed suit against the District and Waldrop, alleging claims against the District under Title IX of the Civil Rights Act and other federal and state laws. Title IX prohibits discrimination on the basis of sex in educational institutions receiving federal funds; sexual harassment is considered to be a form of sex discrimination. The case initially was heard by the United States District Court for the Western District of Texas, which granted summary judgment in favor of the District on all claims. Gebser unsuccessfully appealed the district court's decision on the Title IX claim to the Court of Appeals for the Fifth Circuit.
On subsequent appeal to the Supreme Court, Gebser argued that the 1997 "Policy Guidance" document issued by the Office for Civil Rights of the U.S. Department of Education (OCR) states that school districts may be held liable for monetary damages when a teacher is aided in carrying out the sexual harassment of a student because of his or her position of authority with the school district, regardless whether district officials had any knowledge of the harassment, and irrespective of the district's response once the harassment is discovered. Gebser also argued that, at a minimum, a school district should be liable for damages when the district knew or "should have known" about the harassment but failed to discover and address it. Finally, Gebser alleged that the District should be held liable for damages based on its failure to promulgate and publicize a sexual harassment policy and grievance procedure.
The Supreme Court rejected all of Gebser's arguments, determining that it would frustrate the purpose of Title IX to permit an award of monetary damages when an appropriate official did not have actual notice of the harassment. An appropriate official is defined by Title IX as an official of the school district who has the authority to take corrective action to end the discrimination. Accordingly, the Court found that a private claim for damages under Title IX is only available when a school district official who has the authority to institute corrective measures on the district's behalf has actual notice of the discrimination, and then fails to respond in an adequate manner. The Court further noted that for a school district response to be judged inadequate, it must amount to "deliberate indifference" to the discrimination.
In applying this framework to the facts in Gebser, the Court determined that there was no actual notice to any District official of the sexual relationship between Waldrop and Gebser. The Court remarked that the complaints about Waldrop's inappropriate comments in class were plainly insufficient to alert the principal to the possibility that Waldrop was involved in a sexual relationship with a student. The Court also noted that the District immediately terminated Waldrop upon learning of his relationship with Gebser. Finally, the Court concluded that the District's failure to comply with OCR regulations concerning the implementation of a sexual harassment policy did not establish the elements of actual notice and deliberate indifference.
Certainly, the Gebser decision should be viewed as beneficial to school districts defending student sexual harassment claims under Title IX. The Gebser decision makes it clear that only in those cases where a school district official with the "authority to take action to end the harassment" has actual notice of the offending conduct, and fails to take appropriate corrective action, will the district be liable. However, the circumstances under which a district will be deemed to have received actual notice must still be determined. It also should be noted that while the Supreme Court held in Gebser that the failure of a school district to adopt and disseminate a sexual harassment policy does not by itself establish actual notice of harassment, under OCR regulations districts are required to adopt and publicize such policies. Moreover, the implementation of such policies will continue to assist districts in defending and hopefully preventing sexual harassment suits.
Coming next month, the August "Issue of the Month" will address the issue of sexual harassment in the employment setting. On June 26, 1998, the U.S. Supreme Court issued two decisions in cases involving employer liability for sexual harassment of an employee by a supervisor. Those cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, will be discussed in terms of their implications for school districts as employers.