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Title IX Liability in Public Schools

- by Brian S. Batterton
Legal & Liability Risk Management Institute | School Resources & Training Institute


Title IX of the Education Amendments of 1972i provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of or be subjected to discrimination under an educational program or activity that receives federal financial assistance.ii  On January 4, 2008, the Tenth Circuit Court of Appeals decided a case that illustrates the elements and application of Title IX liability.

The facts that make up the case of Rost v. Steamboat Springs RE-2 School Districtiii began in August of 2000, when K.C., a juvenile female, was enrolled in special education classes due to a previous brain injury.  From about this time, and continuing through eighth grade, K.C. was coerced into performing sexual acts with four boys that also attended her school.  According to the suit, the four boys continuously pestered K.C. for oral sex, called her derogatory names, and threatened to spread rumors and nude photographs of her. 

The time table discussed below is important, because for the school district to have liability under Title IX, they must have known about the sexual harassment.  Therefore, the sequence of events is as follows:  in August of 2000, K.C. was enrolled in Steamboat Springs Middle School for seventh grade.  Throughout seventh and eighth grade, the sexual harassment continued and K.C. became hesitant to attend school.  In the spring of 2002, Ms. Rost, K.C.’s mother, pleaded with a school counselor to speak to K.C. about why she no longer wanted to attend school.  The counselor did so and K.C. said “these boys are bothering me.”  K.C. did not mention sexual assault or sexual harassment.  Ms. Rost felt the school was not responsive to her complaints.

In the fall of 2002, K.C. was enrolled as a freshman in Steamboat Springs High School and the harassment continued.  Ms. Rost contacted the principal and told him that boys were bothering K.C., she hated school and she was afraid to go to school.  Further, she was afraid to go to a particular math class in which one of the boys was also enrolled.  The principal had an aide sit in the class, which only caused the boys to further harass K.C. 

In January of 2003, K.C. told a school counselor that one of the boys was repeatedly asking her for oral sex.  She also told the counselor about another boy who had coerced her into sex by threatening to spread rumors about her sexual conduct and threatening to distribute nude pictures of her.  The counselor immediately notified the assistant principal of this information and she immediately notified the school resource officer (SRO).

The SRO questioned K.C. about the various incidents and then informed the principal of the facts.  Because the incidents took place off school grounds and prior to K.C. being enrolled in high school, the principal decided that the SRO would handle the investigation, rather then the school district.  However, the SRO did keep the principal apprised of the investigation and the school district assisted by making the involved parties available for interviews. 

Ms. Rost, on the advice of her attorney, refused to allow K.C. to communicate with the school or law enforcement regarding the investigation.  Ultimately, the investigation was concluded and the district attorney declined to prosecute the case because it would have been difficult to prove the sexual activity was not consensual and because it would have been traumatic for K.C.  A few weeks after reporting the harassment to the counselor and SRO, K.C. suffered an acute psychotic episode that required hospitalization.  Additionally, over the next year, K.C. had two acute psychotic episodes that were probably caused by the trauma of the incidents.  The school arranged for K.C. to have a private tutor and discussed transferring K.C. to another school within the district.

Ms. Rost filed suit against the school district on behalf of K.C. on three grounds.  First, she alleged that the school district violated Title IX.  Second, she alleged a violation of K.C. Fourteenth Amendment right to Equal Protection because the school allegedly had a custom of tolerating sexual harassment.  Third, she alleged the school district violated K.C.’s Fourteenth Amendment Due Process rights by creating a dangerous environment.

The school district received summary judgment in district court and Ms. Rost appealed to the Tenth Circuit Court of Appeals.  The three issues on appeal were as follows:

  1. Whether the school district had actual knowledge of the sexual harassment and was deliberately indifferent to this knowledge?
  2. Whether the school district had a custom of acquiescing to student-on-student sexual harassment by not enforcing its harassment policy?
  3. Whether the school district created a dangerous education environment such that they are liable for the acts of third parties?


Issue 1:  Title IX Claim

The Tenth Circuit first noted that under Title IX, a school district may be held liable

when it (1) has actual knowledge of, and (2) is deliberately indifferent to, (3) harassment that is so severe, pervasive and objectively offensive as to (4) deprive access to the educational benefits or opportunities provided by the school.iv  

Ms. Rost alleges that the school district was put on actual notice of K.C.’s sexual harassment on two occasions.  First, she says the school received actual notice in the spring of 2002 when K.C. spoke to the counselor.  K.C. told the counselor that “these boys are bothering me and no one understands me in town.”  The court held that this statement was insufficient to put the school district on notice of sexual harassment.  Next, Ms. Rost claims the school district received actual notice in the fall of 2002, when she met with the school principal and told him that K.C. was afraid to go to math class, did not want the aid in math class anymore and said the boys were still bothering K.C.  As a result of the meeting, the principal decided to have the aid sit in the back of the math class; however, the court concluded that the conversation did not convey that K.C. was being sexually harassed. 

However, actual notice of K.C.’s sexual harassment did undisputedly occur in January of 2003 when she told the school counselor that she was being harassed for oral sex.  Thus, the next point to consider when deciding whether the school district has liability under Title IX is whether the school, after receiving actual knowledge, was deliberately indifferent to the harassment.  Deliberate indifference, in this context, means that the school district’s response must have been clearly unreasonable in light of the known circumstances. 

Ms. Rost contends that the school district was deliberately indifferent because they failed to investigate the allegations, failed to interview the alleged perpetrators, failed to interview K.C., and failed to discipline the perpetrators.  However, the evidence shows that once K.C. disclosed the harassment to the counselor, the SRO was immediately notified.  The SRO immediately conducted a 1-2 hour interview with K.C., and the assistant principal and the principal were notified.  Although the school did not conduct the investigation, the principal did ensure that an investigation was conducted when he decided to allow the SRO to handle the investigation due to the fact the incidents occurred off campus.  However, the SRO had a least 50 conversations with the principal about the investigation and the school made witnesses and suspects available to the SRO for interviews.  Ultimately, the investigation revealed that it would be difficult to prove that some of the sexual conduct was not consensual; further, some of the sexual conduct was clearly consensual.  Also worth noting was the fact that the victim was unavailable, under advice of counsel, not to speak to the school or law enforcement about the sexual harassment, therefore, she could not clarify certain points in the investigation. 

Ms. Rost also alleged that the school district was deliberately indifferent because it failed to expel the alleged perpetrators so that K.C. could return to school.  However, the court noted that the U.S. Supreme Court has held that

...schools need not expel every student accused of sexual harassment to protect themselves from liability...and victims of peer harassment do not have a Title IX right to make particular remedial demands...The standard is not that schools must “remedy” peer harassment, but that they must merely respond to known peer harassment in a manner that is not clearly unreasonable.v

Further, there was evidence that Ms. Rost would not have allowed her daughter to return to a school within the school district.  Ms. Rost would only consider private tutoring, which the district provided, and out of state schools, which Ms. Rost could not financially afford.  It is important to note that the court did mention that, if K.C. had expressed an interest in returning to the school and the school had not made provisions to provide her with a safe educational environment, then there would have likely been a Title IX violation.

However, when the court considered all the facts and circumstances of this case and the fact that the improper conduct did not occur at school, the district’s decision to defer to law enforcement was not clearly unreasonable.

In all, the court held that the schools response was not clearly unreasonable and therefore, the school was not deliberately indifferent to known sexual harassment; therefore, the defendants were properly granted summary judgment on this claim.

Issue 2: Fourteenth Amendment Equal Protection Claim

As to the second issue, Ms. Rost claims that the school had a custom of acquiescing to acts of sexual harassment by not enforcing its sexual harassment policy.  Thus, she based this claim under the Equal Protection Clause of the Fourteen Amendment which states that “no state shall ... deny any person within its jurisdiction the equal protection of the laws.”  To prevail on this claim Ms. Rost must prove (1) a continuing, widespread, and persistent pattern of misconduct by the state, (2) deliberate indifference to or tacit authorization of the conduct by policy making officials after notice of the conduct, and (3) a resulting injury to the plaintiff.  Additionally, in order to hold a government or government board such as a school district  liable for this type of action, under 42 U.S.C. § 1983, the deliberate indifference must be shown to be a “policy or custom” of the school

Ms. Rost alleges that evidence that the school district had a custom of acquiescing to student sexual harassment is found in the fact that the principal acknowledged that there had been sexual harassment complaints in the past.  Ms. Rost also notes that one of the perpetrators against her daughter was disciplined for sexual harassment.  However, the court found that the fact that the school district acknowledged the previous sexual harassment complaints and the fact that the have discreetly been working to remedy the issues as evidence that the school does not have a custom of acquiescing to harassment.   Therefore, the defendants were properly granted summary judgment on this claim.


Issue 3: Fourteenth Amendment Due Process Claim

As the final issue on appeal, Ms. Rost alleges that the school district violated K.C.’s Fourteenth Amendment right to Due Process by creating a dangerous environment at the school.  Generally, a government entity’s failure to protect a victim from private violence does not rise to the level of a constitutional violation.vii  However, there are two exceptions to this rule.  The first exception occurs when a “special relationship” exists when the government assumes control over a person that is sufficient to trigger an affirmative duty to protect that individual.viii  Ms. Rost does not allege liability under this theory so the court moved to the second theory of liability, which is the “state created danger” theory.  It is important to note, however, that the Third, Seventh, Eighth, and Tenth Circuits have gone so far as to hold that compulsory school attendance does not create a “special relationship” that would impose liability on the part of schools to protect students in most circumstances.ix

In order to prove a claim under the “state created danger” theory, the plaintiff must satisfy a six part test:

(1) the government entity and individual actors created the danger or increased the plaintiff’s vulnerability to the danger; (2) plaintiff was a member of a limited and specifically definable group; (3) defendant’s conduct put plaintiff at a substantial risk of serious, immediate, and proximate harm; (4) the risk was obvious and known; (5) defendants acted recklessly in conscious disregard of that risk; and (6) such conduct, when viewed in total, shocks the conscience.x 

Ms. Rost alleges that the schools failure to remove K.C. from the math class that one of the alleged perpetrators also attended created a dangerous environment for K.C.  The Tenth Circuit held that the school district and Ms. Rost were unaware of the sexual harassment at the time of the complaint about the math class.  The school responded by putting an aid in class with K.C., and when K.C. complained about the aid, the school had the aid move to the back of the class.  The court found that, at most, this may have been negligent.  However, negligence does not rise to the level needed to establish liability, particularly a conscious disregard of a known risk, such that it shocks the conscience.  Since the school district was unaware of the sexual harassment at the time of the alleged constitutional violation, they are entitled to summary judgment.

Therefore, the defendants in this case were awarded summary judgment on all allegations.


i 20 U.S.C.S. §§ 1681et seq.

ii 20 U.S.C.S. § 1681(a)

iii 511 F.3d 114 (10th Cir. 2008)

iv 1119

v Davis v. Monroe County  Bd. of Educ., 526 U.S. 629, 648-649 (1999)

vi Rost, 511 F.3d at 1125

vii DeShaney v. Wnnebago County Dept. of Social Services, 489 U.S. 189 (1989)

viii Rost, 511 F.3d at 1126

ix Leffall v. Dallas Independent School Dist., 28 F.3d 521, 528 (5th Cir. 1994) “For instance, the Third Circuit has concluded that high school students who were sexually assaulted during school hours were not in the physical custody of the state as is required under DeShaney for a special relationship to arise, and so affirmed the Rule 12(b)(6) dismissal of their § 1983 complaint. D.R. by L.R. v. Middle Bucks Area Vo. Tech. Sch., 972 F.2d 1364, 1368-73 (3d Cir.1992) (en banc), cert. denied,     U.S.    , 113 S. Ct. 1045, 122 L. Ed. 2d 354 (1993). Likewise, the Seventh Circuit has concluded that the state does not enter a special relationship with students by requiring them to attend school because it "has not rendered its schoolchildren so helpless that an affirmative constitutional duty to protect arises." J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir.1990)[**24]  The Eighth and Tenth Circuits have agreed with the Third and Seventh Circuits. Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir.1993); Maldonado v. Josey, 975 F.2d 727, 732 (10th Cir.1992), cert. denied,     U.S.    , 113 S. Ct. 1266, 122 L. Ed. 2d 662 (1993). Indeed, the Tenth Circuit has gone so far as to hold that a school district cannot be liable for a tort inflicted on a student by a private actor during school hours even if its employees knew that the private actor had threatened the student and was present on school grounds. Graham v. Independent Sch. Dist. No. I-89, 22 F.3d 991 (10th Cir.1994).”

x Rost, 511 F.3d at 1126



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