2024

The MLO Minute: “USING TITLE IX TO ADVOCATE FOR SURVIVORS OF SEX-BASED DISCRIMINATION” 

By Daniel Woody, Esq., Federal Litigation and Appellate Counsel, and Michael Connolly, Esq., Supervising Partner of The Special Education Department —  

On April 19, 2024, the U.S. Department of Education (DOE) released its final regulations for the implementation of Title IX of the Education Amendments Act of 1972 (Title IX). In a previous MLO Minute, we discussed the background on Title IX as well as the very important changes to Title IX, including the broadening of the definition of “sexual harassment” and the formal inclusion of “gender identity” in the definition of “sex.”

 

Overall, the Biden Administration’s Title IX regulations aim to provide a more survivor-centered approach to addressing sexual harassment and assault in educational settings, with an emphasis on fairness, support, and accountability.

 

In this MLO Minute, we focus on accountability and discuss how our firm uses Title IX to advocate for survivors of sex-based discrimination and the types of claims available to survivors.

 

TYPES OF TITLE IX CLAIMS

Claims for Compensatory Damages. An implied private right of action for money damages exists under Title IX.  While public schools have a duty not to permit sexual harassment in its schools, to be liable under Title IX, the school district itself must “exclude the student from participation in, deny the student the benefits of, or subject the student to discrimination under” its “programs or activities.” And a school is liable only for its own misconduct.

 

Hostile Educational Environment. Claims under Title IX are, in effect, claims for the creation of a “hostile educational environment.”

 

In a claim for student-on-student sexual harassment under Title IX the plaintiff must establish sexual harassment that is severe and pervasive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” To do so the plaintiff need not show “physical exclusion,” but must present evidence of more than “teasing and name-calling.”

 

Must Show Deliberate Indifference. A school may be liable for damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher.

 

Section 1983 Claims to Enforce Title IX. Students are also protected by 42 U.S.C. § 1983 (Section 1983), which is a seminal civil rights law that was passed shortly following the Civil War. Section 1983 allows students to enforce their constitutional and federal statutory rights against state actors, including public school districts, charter schools, and universities; students can also bring Section 1983 claims against individual school employees who sexually harass a student or who are deliberately indifferent of sexual harassment.

 

Section 1983 claims include, but are certainly not limited to: actions to enforce Title IX; protection from specific serious dangers created by public officials (often referred to as “state-created danger” cases); violations of the Fourth Amendment (where a child is unlawfully searched or seized by a school district or state actor, whether or not connected with a Title IX investigation); and enforcement actions of other federal laws, such as the ADA (in the case of disability discrimination).

 

Negligent Response to Sexual Abuse. Pennsylvania’s sovereign immunity law prevents students from bringing negligence claims against school districts unless the district’s conduct fits one of ten narrow exceptions, mostly relating to transportation or defects in the property where the injury occurred. Consequently, our firm successfully uses Title IX and Section 1983 to pierce sovereign immunity and bring claims on behalf of survivors.

 

However, three years ago, following the Penn State sex-abuse scandal, the General Assembly added the tenth exception to sovereign immunity, which waives immunity where a school covers up criminal sexual abuse. The exception itself only applies to instances where the student was the victim of an act or omission that constitutes a specific and very serious criminal offense, such as, rape, statutory sexual assault, institutional sexual assault, aggravated indecent assault, involuntary sexual servitude, incest, or human trafficking. Where a school district had knowledge that such a criminal act occurred or was likely to occur and did not prevent the act, then the student may have a negligence claim against the school district.

 

INVESTIGATING YOUR CLAIM

While the threshold for liability under Title IX is higher than under state negligence law by requiring “deliberate indifference” by the school officials involved with the circumstances resulting in physical or emotional injuries, we are adept at identifying specific actions and inactions by responsible officials and employees which can establish deliberate indifference.

 

If a child or loved one faces sexual harassment in a public school, please don’t hesitate to reach out to us to discuss your child’s rights. Click here to contact us today.