The Journal of The DuPage County Bar Association

Back Issues > Vol. 12 (1999-00)

Title IX Damages Liability Extended to Student-on-Student Harrassment
By Steven M. Puiszis


Today you receive an irate call from the parent of a second grade student. He complains about an incident on the school playground where another student in his daughter’s class gave her a kiss and then ripped a button from her shirt. He has heard about a new Supreme Court decision addressing student harassment and wants to know what his legal options are. After assuring the parent that you will look into the incident, you call the school principal who advises that she questioned the "offender" and was told that he got the idea from his favorite book, "Corduroy." The book is about a bear with a missing button. Has sexual harassment occurred? Does the local school district have any responsibility to take action against the second grade "offender"?

The following day, two fourth grade students at the same school complain to the principal about a ten-year old student who grabbed one of them from behind and pinched her "bottom" and then later subjected the other to an unwanted hug while on a school sponsored field trip. Does that student’s behavior warrant a suspension or any disciplinary activity? If the school district fails to take any action against either the second and/or fourth grade students, will the decision to remain idle in the face of one or two known complaints of student-on-student harassment expose the district to civil liability?

Teachers and principals on a daily basis confront a "dizzying array" of immature and inappropriate behavior by their students. Following the Supreme Court’s decision in Davis, as Next Friend of LaShonda D. v. Monroe County Board of Education, 119 S. Ct. 1661, 143 L .Ed.2d 839 (1999), principals and school administrators will now have to assess whether a student’s immature or inappropriate conduct constitutes "sexual harassment" and take appropriate action where necessary to avoid potential civil liability under Title IX. In LaShonda D., the Supreme Court concluded that a school district could be held liable for monetary damages under Title IX where it is deliberately indifferent to known acts of harassment by students when that harassment is severe, pervasive, and objectively offensive in nature.

To understand the significance of the Court’s holding in LaShonda D., a brief review of Title IX and the court’s prior decisions interpreting that statute is necessary.

The Judicial Creation and Expansion of Title IX Liability

Title IX applies to all public and private educational institutions that receive federal funds, including elementary and secondary schools, colleges and universities. Title IX also applies to all academic, educational, extra-curricular, athletic or other programs of a school. It prohibits sexual discrimination in schools and specifically provides:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. 20 U.S.C.§1681(a)

When Congress enacted Title IX, it authorized an administrative enforcement scheme to remedy its violation. Title IX, by its own terms, did not create any private right of action. However, in Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court held that Title IX was enforceable through the vehicle of a civil cause of action. Thirteen years later, in Franklin v. Gwinnett Cty. Pub. Schools, 503 U.S. 60 (1992), the Court ruled that a damages remedy was available in civil lawsuits brought to enforce violations of Title IX. The Franklin Court, however, failed to define the parameters of a school district’s Title IX liability.

Last year, in Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998), the Supreme Court finally outlined the elements of a Title IX cause of action. In Gebser, the court was confronted with a student’s claim of sexual harassment by a teacher. The student and teacher had an ongoing sexual relationship unbeknownst to school officials. After they were discovered, the teacher was arrested and his employment with the district was terminated. In Gebser, the Court rejected the plaintiff’s assertion that Title IX liability could be premised upon a negligence standard. The school district’s liability in this setting required actual knowledge of the teacher/student harassment. A claim that the district should have known about the harassment will not suffice. Furthermore, because the administrative remedial scheme set up by Congress under Title IX is predicated upon notice to an "appropriate person," in order to trigger damages liability under Title IX, the Gebser court further required that an "appropriate official" have actual knowledge of the harassing behavior. In the context of a teacher-on-student harassment claim, a damages remedy is not available under Title IX unless an official who has authority to address the alleged discrimination and institute corrective measures has actual knowledge of the discrimination and fails to adequately respond. The Gebser court ultimately concluded that a school district’s response to the alleged harassment must reflect "deliberate indifference" before liability will attach.

Even when judged from a historical perspective, the LaShonda D. decision is not simply another step down the path of ever-widening Title IX liability. It has potentially opened the floodgates to a tidal wave of litigation. The type of harassment at issue in LaShonda D. (involving fifth grade students) is distinctly different than what was addressed in Gebser. A teacher’s sexual harassment of a student is never appropriate. However, with student-on-student interaction the line is not so clear cut. Dating and teenage romances are an everyday part of most students’ lives.

In an attempt to further define the contours of Title IX liability for claims of student-on-student harassment, in LaShonda D., the Court ruled that a school must be in a position to exercise substantial control over both the harasser and the context in which the harassment occurs. Consequently, the Court held that the harassment must occur while the students are "under the operations of" the school district. The Court specifically noted that the misconduct involved in LaShonda D. occurred during school hours and on school grounds.

The court was also careful to note that mere "insults, banter, teasing, shoving, pushing and gender-specific conduct that is upsetting to the student subjected to it" is not actionable. Rather, the behavior must be "so severe, pervasive and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect." The court also appeared to reject the notion that a single incident of student-on-student harassment could be sufficient to trigger liability under Title IX.

In LaShonda D., lower courts were cautioned against second-guessing the disciplinary decisions of school administrators. The Court felt that the deliberate indifference standard could only be met where a school district’s response to known harassment was "clearly unreasonable" under the circumstances. However, as Justice Kennedy noted in his dissent, whether a response is reasonable or unreasonable is frequently a fact-specific inquiry that can only be resolved by a jury. As an example, Justice Kennedy referred to the Seventh Circuit’s recent decision in Doe v. University of Illinois, 138 F.3d 653 (7th Cir. 1998). In Doe, the defendant suspended for ten days two students who had sexually harassed the plaintiff. The Seventh Circuit Court of Appeals ultimately concluded that whether that level of discipline was appropriate could not be resolved through a motion to dismiss.

There are three situations where a school district clearly faces liability exposure under Title IX for known acts of student-on-student harassment:

· where a school district fails to take any action and simply ignores complaints of sexual harassment; or

· where a school district treats complaints of sexual harassment made by one sex differently than complaints by the other sex; or

· where a school district deviates from established practices and policies in addressing and punishing student-on-student harassment.

Doe v. University of Illinois, 138 F.3d 653, 671 (7th Cir. 1998).

The gray area for school districts are those instances where the district takes action against the student harasser but the response is arguably de minimis in nature and the harassing conduct continues. This situation invites Monday morning quarterbacking from courts and plaintiff’s counsel.

Potential Flashpoints

While at first blush the LaShonda D. decision appears relatively simple and straightforward, it leaves unresolved a myriad of issues and may create more problems for school officials than it resolves.

First of all, it is impossible to provide any hard and fast definition as to what constitutes sexual harassment given the range of circumstances in which a student’s conduct takes place. While the majority opinion suggests that school administrators should examine the age, maturity level, and the number of students involved, these factors provide virtually no guidance whatsoever. The dissent in LaShonda D. expressed its concern that school administrators, fearful of ad hoc judicial review of their disciplinary decisions in this area, will overreact to innocuous, childish conduct. The two examples at the beginning of this article are based upon actual cases where the students involved were suspended by their respective school districts. Those cases have been included in several published judicial opinions as examples of administrative overreaction. Even if a workable definition of sexual harassment could be developed, a written guideline is no substitute for common sense and good judgment.

A school district must afford the alleged harassing student due process in responding to the claim of sexual harassment. This creates potential liability for school districts on both sides of the ledger. As one appellate judge observed, "liability for failing to prevent or rectify sexual harassment of one student by another places a school on a razor’s edge, since the remedial measures that it takes against the alleged harasser are as likely to expose the school to a suit by him as a failure to take those measures would be to expose the school to a suit by the victim of the alleged harassment." Doe v. University of Illinois, 138 F.3d at 679 (Posner C. J., dissenting from the denial of rehearing en banc). Parents of the alleged harasser are likely to vigorously fight this type of allegation out of fear that an adverse decision might stigmatize their child and that the label of a "sexual harasser" would follow the student for the rest of his or her academic career.

How do schools handle requests for confidentiality from the student making the claim of harassment? Under the Family Educational Rights and Privacy Act, can a school district release information about one student to another when a claim of student-on-student harassment is made or a disciplinary decision is rendered? The Department of Education determined that its position regarding the application of the Family Educational Rights and Privacy Act to records and information involving sexual harassment needed further consideration. As a result, the section entitled "Notice of Outcome and FERPA" was removed from its final policy guidance statement issued in March of 1997.

Furthermore, Justice Kennedy noted that the majority’s test in LaShonda D. might implicate the Individuals With Disabilities Education Act (IDEA) even for those students who have never been found in need of special services. For example, under 20 U.S.C. §1415(k)(a), "[a] child who has not been determined to be eligible for special education . . . and who has engaged in behavior that violated any [school rule], may assert any of the protections" of IDEA if the school ‘had knowledge . . . that the child [had] a disability before the behavior that precipitated the disciplinary action occurred.’ " A school is deemed to have knowledge of a "disability" where the behavior or performance of the child demonstrates the need for special services. See §1415(k)(a)(B)(ii). Justice Kennedy further noted that the term "disability" as defined under IDEA includes a "serious emotional disturbance," which the Department of Education has defined as a condition exhibiting an "inability to build or maintain a satisfactory interpersonal relationship with peers and teachers" or "[i]nappropriate types of behavior or feelings under normal circumstances." See 34 C.F.R. §300.7(b)(9) (1998). According to Justice Kennedy, sexual harassment that is "severe" and "objectively offensive" could be the product of an emotional condition or a mild behavioral disorder that potentially triggers IDEA’s statutory regulations, which only further complicates a district’s response to harassment claims.

According to Justice Kennedy, the majority in LaShonda D. also failed to take into account the various material differences between elementary schools, secondary schools and universities. For example, given the nature of college campuses, a university has far less ability to control the conduct of its student population than a grammar school or high school. College dormitories are notorious for buffoonery and silly pranks that even the most thick-skinned student could find offensive. Can a university be held liable for conduct that occurs in fraternity or sorority houses located on campus?

In addition, a high school or a university’s ability to discipline its students for conduct that could be viewed as sexually harassing in nature may be limited by the First Amendment. In his dissent, Justice Kennedy cited a decision out of the Fourth Circuit Court of Appeals which overturned (on First Amendment grounds) a university’s sanction of a fraternity for holding an "ugly woman contest" that had "racist and sexist" overtones. See, Iota XI Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993). The Sixth Circuit has also struck down a university’s harassment policy on grounds that it was overbroad, vague and not a valid prohibition on fighting words. Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995).

How does a district handle information concerning sexual harassment by a student that occurs off school grounds or after school hours? Does receipt of that information trigger any obligation to investigate its accuracy and/or take precautions involving the student harasser when he or she steps foot on school grounds?

Does a school district now have a duty to supervise at all times known student harassers when that student is in a position to interact with members of the opposite sex? Alternatively, does a district have a duty to logistically limit the potential interaction between the harasser and members of the opposite sex? Can that include limiting the opportunity to participate in school programs or extracurricular activities? What if the complaint involves same-sex harassment? If a duty to take precautions is imposed on a school district (as opposed to a mere suspension), how long will a district be obligated to take those precautions against a known student harasser? The rest of the student’s academic career? If once found to be a sexual harasser, should the student always be viewed as a sexual harasser? What is the obligation of a new school district to which the student transfers or enters after graduation?

Should a school district now enact a policy and/or grievance procedure specifically dealing with claims of student-on-student sexual harassment? In Gebser, the Supreme Court held that the district’s alleged failure to comply with federal regulations requiring the promulgation and publication of a policy and grievance procedure for sexual harassment claims did not in and of itself establish deliberate indifference or constitute discrimination in violation of Title IX. That holding, however, will not necessarily prevent a plaintiff from attempting to use the absence of a specific policy and grievance procedure against a school district once litigation ensues. If a sexual harassment policy is enacted, what should it include? These and many other issues are left unresolved by the LaShonda D. decision.


A 1993 study by the American Association of University Women Educational Foundation concluded that 81% of the students they surveyed reported that they had been the target of some form of sexual harassment during their school career. Hostile Hallways: The AAUW Survey on Sexual Harassment in American Schools VII (1993). Unfortunately, this means that school administrators are likely to face increasing numbers of complaints of student-on-student sexual harassment.

While the court’s holding in LaShonda D. was well-intentioned, the unfortunate and inevitable result of the decision will be that funds from already overburdened school coffers will be diverted to the defense and indemnification of student-on-student harassment claims. While no one condones any form of sexual harassment in our schools, it would seem that our school dollars are better spent on school programs dealing with sexual harassment than on Title IX Judgments and attorneys to defend claims of this nature.

Steven M. Puiszis is a Partner with the law firm of Hinshaw & Culbertson where he is the head of the firm’s Municipal and School Law Practice Group. He is a 1979 graduate of Loyola School of Law and served as a prosecutor in the Cook County State’s Attorney’s Office before joining Hinshaw & Culbertson. He serves on the Board of Directors for the Illinois Association of Defense Trial counsel and is the author of Illinois Municipal; Tort Liability, 1st Edition (1996), published by the Michie Co. (now a part of Lexis Publishing).

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