Under Title IX—which prohibits sex discrimination in federally funded educational institutions—a school can be found liable if it had “actual notice” that a student was sexually harassed, yet the school did nothing. Recently, the Fourth Circuit addressed the question of whether “actual notice” is a subjective or objective standard. In other words, the Fourth Circuit addressed the question of whether a student needs to prove that the school did in fact know about the harassment, or whether it is enough to prove that they should have known. Additionally, the Fourth Circuit addressed the question of whether a student needs to be harassed again, after they complain to the school, in order for the school to be held liable under Title IX.
In the case of Doe v. Fairfax County, a female student was sexually assaulted on a bus by an older male student during a school trip. The victim complained to school officials, but she was met with indifference. The school argued that it didn’t have “actual notice” under Title IX because it didn’t subjectively believe that any harassment took place. Furthermore, the school argued that it couldn’t be held liable, despite its indifference, because the student was not subjected to any further harassment after she complained.
The Court sided with the student and held that she did not need to show that the school officials subjectively believed that she was harassed. Instead, the Court held that “a school’s receipt of a report or complaint alleging sexual harassment is sufficient to establish actual notice under Title IX. This is an objective inquiry which asks whether an appropriate official in fact received such a report or complaint and whether a reasonable official would construe it as alleging misconduct prohibited by Title IX.”
The Court further rejected the school’s argument that it could not be held liable simply because there had not been any further incidents of harassment subsequent to the victim’s complaint. Some courts and commenters have previously criticized this line of reasoning, arguing that it would effectively give rise to a “one free rape” rule. The Fourth Circuit sided with the student and held that:
“[T]he statute itself makes plain that a school may be held liable when it makes a student vulnerable to sexual harassment by their peers, such as by failing to respond appropriately after learning of an initial incident of sexual assault. In other words, schools do not get ‘one free rape.’ To hold otherwise would be inconsistent with Title IX’s goals…and lead to the absurd result of requiring students to be sexually harassed or assaulted at least twice before a school can be held liable in damages for its deliberate indifference to known harassment”
It is expected that the Supreme Court will address these issues in the future. We will post updates.