Re: Ms. Katie S., Legal Voice
Statement of Facts
In April 2009, a classmate sexually assaulted Katie, a sophomore. After the incident, Katie told her residential adviser about the sexual assault. The R.A. told Katie to contact the police and school officials, but Katie did not do so. After several weeks Katie confided in her trusted math professor. The professor sits on the University Hearing Committee, which reviews any student misconduct in violation of school code. The professor did not report the incident to the committee, but told Katie to file a formal complaint, which Katie did not do. After the incident, Katie attended counseling, but cancelled after two sessions. After the assault she did not take part in any social clubs, she moved off campus, and canceled her enrollment in summer school. She became socially withdrawn in an attempt to avoid her aggressor. Katie continued school in the fall and her Grade point average (GPA) did not decrease.
Under Title IX, did Katie’s sexual harassment deprive her access to education to a degree that will survive summary judgment when: (1) Katie notified a trusted Professor on the University Hearing Committee, but did not file a formal complaint; (2) she dropped out of summer classes, but took a full load during the academic year; (3) she was forced to leave her clubs, but her GPA did not suffer; (4) she went to counseling sessions through the University, but did not continue treatment.
Congress enacted Title IX of the Education Amendments Act of 1972 to protect individuals subjected to discrimination, on the basis of sex, and actions that exclude or deny a student’s access to any benefits of an educational program or activity receiving federal funds. 20 U.S.C.A. § 1681 (2010). The statute does not explicitly sanction a private citizen’s right of action. However, the Supreme Court found an implicit right in the statute that supports a private citizen‘s legal action against an educational institution. Cannon v. University of Chicago, 441 U.S. 677, 709 (1979). The Court later expanded the scope of the statute by authorizing damage remedies to enforce private actions brought under Title IX. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76 (1992). The Court, at present, has not recognized a peer-to-peer Title IX action predicated on a single discriminatory or harassing incident. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 652 (1999).
The Supreme Court, by statutory interpretation, enumerated elements that a claimant must establish to receive relief under a Title IX action. First, the claimant must provide actual notice to an appropriate person regarding the discrimination or harassment. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288 (1998). An appropriate person is, at a minimum, an official of the school who has the authority to take corrective action to end the discrimination. Id. at 290. Second, the claimant must provide evidence demonstrating the harassment as so “severe, pervasive, and objectively offensive, and….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.” Davis, 526 U.S. at 651. Finally, the claimant must prove the school acted with deliberate indifference to the acts of discrimination. Gebser, 524 U.S. at 290. This final element, deliberate indifference, does not apply in this memo. You asked me only to review the first two elements.
The first element in a Title IX claim requires the claimant to give actual notice to an appropriate person. Id. at 277. Specifically, the element demands two occurrences: (1) some supervisor with authority to take corrective action was placed on notice of the bad conduct; and, (2) the supervisor possessing this authority was a school official high enough up the chain-of-command that his acts constitute an official decision by the school district itself not to remedy the misconduct. Floyd v. Waiters, 133 F.3d 786 (11th Cir. 1998). Traditional notions of constructive notice and respondeat superior do not apply in a Title IX claim. Id. at 287. Therefore, this test will exclude most employees. Litman v. George Mason Univ., 131 F. Supp. 2d 795 (E.D. Va. 2001), quoted in Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 660 (5th Cir. 1997). If the claimant complains to a school employee not in an authoritative position, the school will not be liable for the alleged discrimination.
In deciding whether the claimants established this element, the court will consider whether the claimants distinctly notified an appropriate school official of the harm and if that official could remedy the discrimination. See e.g., Tesoriero v. Syosset Cent. Sch. Dist., 382 F. Supp. 2d 387 (E.D.N.Y. 2005); Warren v. Reading Sch. Dist., 278 F.3d 163 (3rd Cir. 2002). In Tesoriero, a teacher sexually harassed two identical twin students. This harassment included: giving them body lotion, attending track meets, offering free tutor services, and telephoning them at home. Eventually, one of the students and their mother spoke with the school psychologist. The psychologist did not report the teacher’s bad behavior because she felt the relationship was safe; however, she referred them to an outside psychologist. The twins’ father, unhappy with the continuing harassment and lack of school action, called the assistant principal and complained about the teacher’s behavior. The assistant principal relayed this information to the principal, who then had meetings with the offending teacher. Finally, the principal took disciplinary measures that included a year suspension without pay, reassignment, and forbade contact with the twins. The Principal had the authority to remedy the offending teacher’s misconduct; therefore, the court ruled he was an appropriate person under a Title IX action. In Warren, the sexual harassment claim was between a teacher and a fourth grader. The harassment occurred in school at least two times a week for several months. In one incident, the teacher picked up the student from home and took him to a secret spot where the teacher sexually harassed the child. The mother read about the incidents in her son’s journal and notified Berks County Children and Youth Services. The agency reported the suspected abuse to the school district. The school district then suspended the teacher. In Warren, the complaint transferred from one authoritative body to the next, and eventually led to the suspension of the teacher. In both cases, the claimants gave notice to individuals who had the power to remedy the situation.
In cases that failed to establish this element, the courts ruled that claimants must give a formal complaint to satisfy the actual notice requirement. See, e.g., Litman v. George Mason Univ., 131 F. Supp. 2d 795 (E.D. Va. 2001); Burtner v. Hiram College, 9 F. Supp. 2d 857 (Ohio Misc. 2 1998). In Litman, the claimant alleged that professor Norris became infatuated with her. Professor Norris would say that he loved her, would ask questions about her marriage and sex life, and stalked her throughout school. Eventually, the claimant disclosed the situation to another professor, Dr. Orsak. In oral argument, the claimant testified that Dr. Orsak knew the identity of the harasser, but there was no evidence. Furthermore, the claimant lacked evidence showing Dr. Orsak’s ability to remedy the situation. But, the claimant argued, the professor was obligated to pass this information on to an appropriate person. The court rejected this argument. The court reasoned constructive notice does not establish the requisite proof in a Title IX claim. Ultimately, the court ruled the claimant did not provide actual notice until she filed a formal complaint with the equity office several months later. In Burtner, the person with remedial authority testified she did not know the identity of the harasser until the claimant filed a formal complaint after graduating. The previous anonymous complaint by the claimant and her classmate lacked any specificity concerning sexual harassment or the harasser’s identity despite the claimant’s arguments to the contrary. The court ruled the claimant gave actual notice only after filing an official complaint.
The court will likely rule Katie’s lawsuit lacks concrete evidence demonstrating actual notice to an individual who could remedy the situation. Katie notified her residential adviser, a fellow student, but the R.A. cannot redress the situation. Katie then turned to a trusted professor. The professor served on the University Hearing Committee, which hears misconduct cases, but the professor was not acting in that capacity during the time Katie spoke with him. Furthermore, the lack of an official complaint, despite the advice to file one, undermines Katie‘s assertion of actual notice.
First, the court will most likely determine the claimant did not establish evidence of actual notice. To contradict this result, the claimant will argue that her conversation with Professor Picket gave actual notice. Like the claimant in Tesoriero who did not file an official complaint but notified the assistant principal, Katie confided in a trusted professor. Unlike the claimant in Burtner whose first complaint was anonymous, Katie notified Professor Picket personally. According to the Tesoriero court, “the actual notice standard does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual abuse from the claimant-student.” Tesoriero at 397. A notice standard requiring an official complaint would bar many incidents. Katie did not file a formal complaint because of fear and social exclusion. Requiring formal complaints in all cases of sexual harassment would contradict the policy considerations in Title IX complaints: protecting private citizens from sex-based discrimination.
In contrast, the school will argue that Katie did not file an official complaint; thus, she did not give actual notice. The court in Litman and Burtner only recognized the claimant’s official complaint. Katie‘s conversations with Professor Picket lacked actual notice since the professor was not acting in his authority as a committee member during the conversation. Although Professor Picket was on the committee, he requested a formal complaint. Katie’s case is different from Tesoriero and Warren because the claimants were not told to file an official complaint. Furthermore, similar to the facts in Burtner and Litman, our facts do not distinctly state whether Professor Picket knew the identity of the harasser. Without more information, the court would most likely require a formal complaint. Like the claimant in Litman, the professor is not obligated to communicate the information to the committee. Constructive notice is not applicable. If the actual notice standard were lowered to include casual conversations, the line between plausible and implausible claims would blur. Notice would be based on conjecture and hearsay. More importantly, the amount of claims would increase thereby decreasing judicial efficiency and increasing frivolous claims.
Second, the court will most likely determine that Professor Picket is not an appropriate person who can remedy the incident. To argue against this result, the claimant will state that Professor Picket is a member of the University Hearing Committee. The court in Warren stated the authority to supervise and investigate a complaint implies the authority to apply corrective measures. Warren at 172. Professor Picket has the authority to provide Katie with a remedy as a member of the committee. Like the claimant in Warren whose notice eventually reached the principal, who is responsible for the health and safety of the students, Katie told Professor Picket, who sits on the committee, that is responsible for issues involving student misconduct.
On the other hand, the school will argue that Professor Picket was only acting in his position as professor, not committee member. This is evidenced by his request for Katie to file a formal complaint. Without the formal complaint, Professor Picket’s authority is that of a Math Professor. Professor Picket alone cannot provide Katie with a remedy — only the committee has the authority to do so, and complaints reach the committee only when filed. If Professor Picket were able to provide Katie with a remedy, he would have provided one upon hearing of Katie’s sexual assault.
Harassment Depriving Access to Education
The second element of a Title IX claim requires the claimant to establish that the harassment was “so severe, pervasive, and objectively offensive, and…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.” Davis, 526 U.S. at 651. The harm must have a “systemic effect“ that denied an individual’s access to educational benefits. Id. at 652. The “systemic effect” is theoretically possible from one peer-to-peer incident, but is unlikely the intent of the legislators. Id. To determine the severity of the harassment, a court will look to the surrounding circumstances, expectations, and relationships of the individuals involved and whether they affected the claimant’s ability to receive an education. Id. at 651.
In deciding whether the claimants’ harassment meets the requisite harm, the courts consider whether the parties were concretely deprived access to the institutions resources or activities. See, e.g., Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999); Williams v. Bd. of Regents of the Univ. Sys. of Ga., 441 F.3d 1287 (11th Cir. 2006). In Davis, a classmate sexually harassed the claimant’s daughter for a prolonged period. The claimant established a connection between the harassment, a decrease in GPA, and emotional depression. The court ruled this evidence supported the claimant’s discrimination allegations. In Williams, the claimant proved this element by establishing a connection between the harassment and dropping out of school. Three individuals conspired together and raped the claimant. Shortly after the incident, the claimant stopped attending school. She argued the incident was so traumatic she could not continue her education. The court ruled, that this severe harassment barred her from receiving and benefiting from the school and its resources.
In deciding whether the claimants do not meet the requisite harm, the courts consider whether the claimants continue their education despite the harassment, or whether they lack evidence displaying the discriminating effects. See e.g., Gallant v. Board of Trustees of Cal. State Univ., 997 F. Supp. 1231 (N.D. Ca. 1998); Doe v. Lennox Sch. Dist. No. 41-4, 329 F. Supp. 2d 1063 (S.D. SD 2003). In Gallant, the claimant alleged that a teacher used her as an “emotional dumping ground.” Despite the alleged severity of the sexual harassment, the claimant still applied and was accepted to the school where the professor taught. The claimant provided evidence of continual harassment, but the worst occurred before her matriculation at the school. Furthermore, the claimant requested the help of the harasser to find an apartment once she was accepted to the school. The court ruled that such behavior is not indicative of someone who was severely harassed to an extent that denies her access to educational benefits. In Doe, a classmate sexually harassed a young woman on several occasions. The boy kissed her, touched her private parts, and exposed his penis to her. After the young woman finished the year in school, her parents transferred her to another school and brought suit. The court found the claimant failed to provide any evidence constituting a bar to her education. The lack of any GPA decrease suggested the claimant’s educational experience was not compromised. Also, the young woman’s continued attendance in school despite the harassment displayed a lack of educational discrimination. In both cases, the claimants’ education continued unremarkably despite the alleged severity, offensiveness, and pervasiveness of the alleged harassment.
In the present case, the court will probably conclude that Katie’s sexual harassment is not severe, pervasive, and offensive and this harm did not deny her equal access to the institutions resources and opportunities. First, the court will determine that Katie’s incident was isolated and did not engender the “systemic effect“ of denying her access to education. Second, the court will determine the harassment did not deny her access to educational benefits because her grades did not decline and she continued school in the fall. Moreover, the absence in social clubs and summer school is not materially significant evidence demonstrating discrimination.
The court will most likely rule that Katie’s harm was not severe, offensive, and pervasive because it was a single incident. To oppose this conclusion, Katie will argue she saw a campus counselor, confided in a professor, had anxiety attacks, and trouble sleeping. The claimant in Davis also suffered emotionally, and the Court found this as evidence of severe and offensive conduct. Katie, a victim of a severer and serious crime, should surpass the standard set in Davis. Unlike the claimant in Gallant, Katie was more than an emotional dumping ground; she was a victim of rape. The Washington state appellate court ruled, “[a] single act of severe sexual harassment can support a [Title IX] cause of action.” S.S. v. Alexander, 177 P.3d 724. Therefore, this state ruling could influence Katie’s case.
To oppose this view, the school will rely on the Davis precedent. The Supreme Court in Davis determined a single incident of peer-on-peer sexual harassment is likely not actionable under Title IX. Davis at 652. The court in Williams followed this precedent by ruling the claimants sexual assault incident was not one but three incidents. CITE If the courts allowed a Title IX action based on a single incident, the amount of litigation would increase. Furthermore, claimants could base their claims on less egregious harms and harassments. The single incident claims lack the “systemic effect” required to deprive a student from their education. Keeping the standard high retains the legislative intent and the plain text requirement for “pervasive“ harm. Additionally, Katie stopped her counseling sessions after only two visits and did not pursue any criminal action. This evidence undermines the severity and offensiveness of the harm. Liability should not be imposed upon a school if the student can manage on her own.
The court will most likely rule that Katie’s harm did not deny her equal access to educational benefits. To oppose this ruling, Katie will maintain her absence of summer school and school clubs denied her an integral part of the educational experience. Katie did not attend summer school due to the possibility her aggressor would be on campus. After the rape Katie moved off campus, quit several school clubs, and stays off campus as much as possible to avoid seeing her aggressor. Like the claimant in Williams who quit school after her rape, Katie couldn’t attend summer school or take part in extracurricular activities. Katie essentially dropped out of school. Similarly to the claimant’s daughter in Davis, Katie suffers from emotional depression that negatively affects her equal access to educational benefits.
The school will argue that Katie has not suffered any deprivation of educational benefits. Unlike the claimant in Davis, Katie had no decrease in her GPA, nor was she suicidal. Katie’s case is more analogous to Doe, where the claimant stayed in school with no decrease in GPA. Furthermore, the claimant in Williams quit school, but Katie continued her studies full-time in the fall. Katie’s case is more analogous to Gallant then to any other case — despite the alleged severity of the harm, she is still a continuing full-time student. In Katie’s case there is no uncommon deprivation of education. The circumstances are similar to a student who goes home for the summer: they move off campus, quit social clubs, and don’t attend summer school, but come back in the fall. The law should impose liability only if the student cannot attend classes.
Because of the strict requirements set forth by the Supreme Court, the court will probably hold that Katie’s Title IX claim will not survive summary judgment.
The claimant may be able to prove she gave actual notice to an appropriate person, but the evidence demonstrates the Professor she confided in was not serving in his official capacity at that time. If he were, then the committee would have reviewed Katie’s complaint. As it is, there is no evidence showing the professor knew the identity of the aggressor, or the professor notified the committee. Besides, the inapplicability of constructive notice and the precedent requiring formal complaints in analogous cases further decreases Katie’s argument for actual notice to an appropriate person.
The claimant may, however, establish that her harm was sufficient to deprive her of educational benefits. This argument is contingent on the court accepting state case precedent allowing a single peer-to-peer incident to be actionable under a Title IX claim. If the court rejects this precedent, then Katie’s claim will not likely survive summary judgment. Her satisfactory continuation of school, lack of counseling, and social inactivity, does not establish a substantial Title IX claim. These behaviors can be indicative of a large class of students and not unique to Katie’s unique situation.