In a case of first impression in Illinois and an extremely significant case for school districts, the Seventh Circuit Court of Appeals (the federal appeals court which covers Illinois, Indiana and Wisconsin) ruled that a school district can be liable for student-on-student sexual harassment. Doe v. University of Illinois, No. 96-3511 (March 3, 1998, 7th Cir.) The Court ruled that liability for student-on-student harassment will attach to a school district for failure to take prompt appropriate action in response to such harassment that takes place while the students are involved in school activities or otherwise under the supervision of school employees.
The Facts
The facts of the case allege that "Jane Doe," while a student at University High, was the victim of an ongoing campaign of verbal and physical sexual harassment from several male students. The conduct which forms the basis of Doe's harassment claim included unwanted touching, epithets, and deliberate exposure of one student's genitals in front of Doe. Doe claims that she complained to school officials, and since the high school was affiliated with the University of Illinois, she also complained to University officials. As a result of some of Doe's complaints, the school transferred one male student from Doe's biology class, and two other male students were suspended for a short period of time. Doe alleges, however, that this was not a meaningful attempt to stop the harassment, and that one official told her that she herself was to blame, and that she ought to adjust her behavior in order to make the harassment stop. Another school official allegedly chided her for making accusations that could injure the male students' futures. Ultimately, Doe withdrew and attended a private school in another state. Doe, through her parents, then filed suit under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in any educational program or activity receiving federal financial assistance.
According to the Court, the only question that it was deciding was whether a school district can be liable for failing to take prompt, appropriate action to remedy known sexual harassment of one student by other students. In answering the question affirmatively, the Court ruled that a Title IX fund recipient may be held liable for its failure to take prompt, appropriate action in response to student-on-student sexual harassment that takes place while the students are involved in school activities or otherwise under the supervision of school employees, provided the recipient's responsible officials actually knew that the harassment was taking place. The Court expressly rejected any requirement that a plaintiff plead or prove that the school district failed to respond because of a sexually discriminatory intent. The Court held that failure to take prompt steps in response to known harassment "is itself intentional discrimination on the basis of sex."
After determining that a cause of action does exist for student-on-student sexual harassment, the Court elaborated on what constitutes notice to the school district of sexual harassment. The Court held that actual knowledge is the appropriate standard, stating that this requirement "will prevent schools from being blind-sided by liability based upon events that officials did not even know were taking place." As a result, a student must "report the alleged harassment to responsible school officials, thus giving the school a chance to respond before it is hauled into court." This standard is different from Title VII sexual harassment standards in the employment context, which provides that an employer may be liable for sexual harassment by its employees if it knew or should have known such harassment was occurring.
Limited Scope of the Decision
The Court cautioned that its decision would not require schools to completely eradicate sexual harassment from their campuses and programs. "As long as the responsive strategy chosen is one plausibly directed toward putting an end to the known harassment, courts should not second-guess the professional judgments of school officials." A concurring and dissenting opinion by Judge Coffey elaborated on this statement. A "meaningful" response should include "any remedial action which is not so de minimis that is demonstrates an intent by school officials to discriminate against the complaining student on an improper basis."
As stated quite eloquently by one of the judges in agreeing that schools cannot be expected to completely eliminate student-on-student harassment: "That would be an impossible task, for schools are full of all sorts of kids, and every school has its share of buffoons, yokels, and dunderheads of all stripes . . . [W]hat I think is required is that a school not turn a blind eye to a sexually hostile environment."
What is now clear in Illinois is that a school district can be held liable under Title IX for failing to respond to known student-on-student sexual harassment. What still remains unclear is what level of knowledge is required and how effective must the school's intervention be. As a result of this decision, it is important that districts advise and instruct its administrators, teachers and staff on their obligation and responsibility to respond promptly and appropriately to complaints of student-on-student sexual harassment. It is also strongly recommended that districts adopt a sexual harassment policy that addresses student-on-student sexual harassment. The firm will be conducting in-service workshops on this topic in the near future. If your district would like to take advantage of such a workshop, feel free to contact any of our offices.