Two recent federal court cases delineate the requisite elements of a Title IX deliberate indifference claim brought by students against educational entities. In Feminist Majority Foundation v. University of Mary Washington, the plaintiffs – consisting of the national Feminist Majority Foundation [“FMF”], Feminists United on Campus, an FMF affiliate, and five executive board members of Feminists United — claimed that University of Mary Washington and two of its administrators [collectively “UMW”] had been deliberately indifferent to a campaign of derogatory, even threatening, anti-feminist “yaks” on Yik Yak, a social media platform that allows users to anonymously create and view “yaks” within a radius of ten miles.
In response to the plaintiffs’ concerns, UMW held campus meetings to address cyberbullying and, when one of the plaintiffs felt threatened by yaks that were directed specifically at her, it posted a campus police officer at meetings she was attending. The plaintiffs, however, deemed these responses insufficient, asserting that UMW should have disabled Yik Yak on campus or barred it from the school’s wireless network. UMW noted that were it to bar Yik Yak due to some users’ anti-feminist remarks, regardless of how noxious and insulting, the ban would constitute content-based censorship, a violation of the First Amendment. Nonetheless, the plaintiffs filed a complaint with United States Department of Education’s Office of Civil Rights, followed by their lawsuit, both of which simply triggered more yaks.
UMW moved to dismiss the lawsuit, arguing that there was no legal basis for the plaintiff’s claims. The United States District Court for the Eastern District of Virginia agreed and granted UMW’s motion. The court noted that a school’s liability under Title IX is limited to situations “where the recipient can take action – that is, to circumstances where the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs” (emphasis in original). Thus, because “the harassment took place in a context over which UMW had limited, if any, control” – namely the anonymous postings on Yik Yak — the plaintiffs’ Title IX discrimination claim failed. Furthermore, although the plaintiffs believed that UMW should have done more than the steps it took, the court noted that Title IX does not require schools “to meet the particular remedial demands of its students.” This is particularly apt when, as here, there is really nothing else that the school can do. Although the court decried cyberbullying, it observed that in “seeking solutions . . . schools cannot ignore other rights vital to the country, such as the right to free speech.”
Just as a school’s inability to control the actions of unknown individuals relieves it of Title IX liability, in K.T. v. Culver-Stockton College, the United States Court of Appeals for the Eighth Circuit held that absent prior notice of sexual harassment, a school cannot be held liable under Title IX. The court predicated its decision both on Culver-Stockton College’s lack of actual, prior knowledge of sexual misconduct and the fact that without such knowledge, it could not be deemed to have been deliberately indifferent to it.
The plaintiff in K.T. was a high school junior whom Culver-Stockton College had invited to visit campus as a potential recruit to the women’s soccer team. While there, K.T. attended a party at an on-campus fraternity house, where she claims she was served alcohol before being physically and sexually assaulted by a fraternity member. K.T. alleged that she promptly reported the attack to Culver-Stockton College but that it essentially did nothing. Consequently, she sued the college, claiming it had been deliberately indifferent to her sexual harassment.
The trial court held that as a non-student, K.T. lacked standing to sue, but on appeal, the Eighth Circuit declined to reach the issue of whether a non-student is precluded from bringing an action under Title IX. It instead focused on the merits of the claim, which the appellate court found lacking. Specifically, the court held that “the actual knowledge element requires schools to have more than after-the-fact notice of a single instance in which the plaintiff experienced sexual assault.” Although the court acknowledged that “actual knowledge may be established where the recipient has prior knowledge of (1) harassment previously committed by the same perpetrator and/or (2) previous reports of sexual harassment occurring on the same premises,” the plaintiff failed to establish either criterion (emphasis in original).
It would seem fairly evident that if one does not know something exists, then one could not be deliberately indifferent to it, but the court also discussed the plaintiff’s failure to “plausibly allege” that Culver-Stockton acted with deliberate indifference. The court noted that deliberate indifference is not an abstract element; rather, it must be a direct, causal factor in the harassment. In short, the misconduct must not only be subsequent to the school’s indifference, it must also be consequent. In K.T., however, the plaintiff failed to identify any nexus between the school’s inaction and the plaintiff’s sexual assault. Thus, while the court acknowledged the “opprobrious misconduct” that K.T. had alleged, her lawsuit fell far short of establishing a legally sufficient Title IX claim.
What Does It Mean?
When read together, the Feminist Majority Foundation and K.T. cases underscore some of the fundamental elements that are essential to a Title IX deliberate indifference claim. Plaintiffs must be able to establish that the educational entity had actual – or at least constructive – prior knowledge of sexual harassment. In other words, they must be able to show that the school either had knowledge or reasonably should have had knowledge of the misconduct. Additionally, plaintiffs must demonstrate that the school had the power to stop or otherwise control the harassment, that despite knowledge of and control over the harassment, the school was deliberately indifferent to it, and that this indifference actually caused the plaintiffs’ subsequent harassment.