School District Liability for Student on Student Sexual Harassment

On May 24, 1999, the U.S. Supreme Court issued a decision holding that a student may recover monetary damages from a school district in a case of student-on-student sexual harassment where suit is brought under Title IX of the Education Amendments to the Civil Rights Act. In Davis v. Monroe County Board of Education, the Supreme Court, in a 5 - 4 decision, held that such monetary damages may be recovered only where the district has "actual notice" of the harassment and is "deliberately indifferent" to the harassment. The Court also noted that the harassment must be so "severe, pervasive, and objectively offensive" that it deprived the student victim of access to educational opportunities or benefits provided by the school district.

The Davis Case

The Davis case involved a female elementary school student who alleged that she was subjected to a continuing pattern of sexual harassment by a male peer. The alleged conduct, which purportedly included physical touching as well as sexually suggestive comments, occurred over a six-month period. The female student claimed to have reported the behavior to both her mother and her teacher, and that her mother also spoke with the teacher, who assured her that school administration would be informed of the situation. Allegedly, however, no disciplinary action was taken against the male student.

The student's mother filed suit against the School Board and certain District officials, alleging that the student-on-student harassment was in violation of her daughter's rights under Title IX, which prohibits discrimination on the basis of sex in educational programs which receive federal funding. The lower court granted the District's motion to dismiss on the ground that the daughter had no cause of action under Title IX because neither the school board nor any employee of the District had engaged in the harassment.

On appeal, the Eleventh Circuit Court of Appeals initially overturned the lower court's decision. Following a rehearing, however, the Eleventh Circuit reversed itself and upheld the lower court's dismissal of the complaint. The mother then appealed to the Supreme Court.

The Supreme Court, in an opinion written by Justice Sandra Day O'Connor, concluded that the student's allegations should be analyzed within the framework of the Supreme Court's decision in the case of Gebser v. Lago Vista Independent School District. In Gebser, which was decided in June 1998, the Court held that monetary damages can be recovered under Title IX where a school district employee sexually harasses a student, if 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. In the new Davis decision, however, the Court noted that for a school district to be liable for student-on-student sexual harassment under Title IX, the school must have authority to take remedial action against the harasser. In other words, the harasser must be a student under the supervision of the school district. Additionally, the harassment must occur "under the operations" of the school district, such as where the alleged misconduct occurred during school hours and on school grounds.

With regard to a determination as to whether the harassment is so "severe, pervasive, and objectively offensive" that it acts to deprive the victim of access to the educational opportunities provided by the school, the Court stated that such factors as the ages of the harasser and victim as well as the number of individuals involved must be considered. The Court specifically noted that damages under Title IX would not be available for "simple acts of teasing and name calling among school children." The Court also noted that deliberate indifference would occur only where the school's response to harassment was clearly unreasonable in light of the known circumstances. In order to avoid liability, a school district must merely respond to known peer harassment in a manner that is reasonably calculated to effectively address the misbehavior.

The Decision's Impact

While the Davis decision does clarify for the first time that a school district can be liable for acts of student-on-student harassment under the provisions of Title IX, the Court's holding can be viewed as beneficial to school districts facing such suits, since Davis makes it clear that a district will be liable only in those cases where the school district has actual notice of severe, pervasive, and objectively offensive harassment, and then is deliberately indifferent in responding to that harassment. As is the case with last year's Gebser decision, the circumstances under which a school district will be deemed to have received actual knowledge of student-on-student harassment is yet to be determined. Courts also will have to determine under what circumstances harassment is so severe that it can be said to deprive its victims of access to educational opportunities.

In response to the Davis decision, school districts should continue to closely monitor student behavior, and to take prompt investigative and disciplinary action in student-on-student sexual harassment situations. Additionally, districts should have policies and procedures in place for educating students about sexual harassment and for reporting allegations of sexual harassment.