On May 7, 2021, the United States Court of Appeals for the Seventh Circuit (which has jurisdiction over Illinois) affirmed a Wisconsin district court’s dismissal of a middle school student’s claims of sexual harassment and sexual discrimination. The student, who attended a private middle school in Green Bay, Wisconsin, alleged that a male classmate subjected her to repeated sexual harassment and bullying from September 2019 through January 2020. Specifically, the student alleged that her classmate repeatedly called her offensive names, ridiculed her about her weight and appearance, utilized social media to make sexually suggestive or aggressive comments about other female students, and suggested that other students “buy [the student] a rope and teach her to use it,” insinuating that the student should hang herself. In response to the student’s complaints, the school met with the student and her family on several occasions to address the harassment, and ultimately suspended the alleged perpetrator on the final three days before winter vacation, required the perpetrator to apologize to the student, sent an email to all eighth-grade boys explaining that the school would not tolerate bullying, and offered to move the student’s seat in class. The school acknowledged that additional victim services were not offered to the student because she did not appear to need them; however, the school administrator did meet with the student separately to address any residual concerns.
The student filed a complaint in district court, alleging Title IX violations by the student’s school. Specifically, the student alleged that school policies and practices fostered a “boys will be boys” atmosphere at the school, resulting in emboldening students like the alleged perpetrator to escalate harassing and sexual behaviors. The district court dismissed the student’s Title IX claim, finding that the complaint “failed to allege the school was deliberately indifferent to the alleged harassment” and that the “allegations [were] too vague and indefinite to state a claim for sexual harassment on the part of the school.” The student subsequently filed an appeal with the Seventh Circuit.
Under Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), which was codified in the new Title IX regulations, the Supreme Court ruled that victims of student-on-student harassment may sue a school for “indirect” sexual discrimination where the school was “deliberately indifferent to severe and pervasive harassment of which the school had actual knowledge.” Here, applying the Davis standard, the Seventh Circuit determined that the school had not acted in a deliberately indifferent manner, because it: (1) responded promptly to the student’s complaint and met with her and her parents several times, including once for the express purpose of allowing the student to voice her concerns as a victim of bullying; (2) suspended the perpetrator for several days in December 2019; (3) offered to move the student’s seat in class; and (4) facilitated an apology from the alleged perpetrator. Although the court agreed that the perpetrator’s conduct constituted severe and pervasive bullying, the court determined that the school’s actions were not “clearly unreasonable in light of the known circumstances.” Further, the court noted that while the student’s family would have preferred that the perpetrator be expelled, Title IX does not give victims the ability to dictate specific remedial actions, nor should courts intrude upon educational decisions made by school officials.
With regard to the student’s claims on direct sexual discrimination by the school, specifically allegations relating to the school’s policies on dress code and academics, the Seventh Circuit held that simply implementing policies differentiated by sex does not equate to discrimination, unless those differences impact a student’s access to educational programs or benefits. Additionally, the court noted that the student failed to show that the student’s sex impacted the school’s handling of her bullying complaints.
In general, when determining whether school officials acted with deliberate indifference in responding to allegations of sexual harassment, courts “will not second guess a school’s disciplinary decisions—even a school’s decision not to impose any disciplinary measures—so long as those decisions are not clearly unreasonable.” This case specifically highlights the importance appropriately training administrators and staff in responding to allegations of sexual harassment under the new Title IX regulations. School officials should review and follow their Title IX procedures, especially regarding meeting with the complainant, implementing supportive measures, and conducting a thorough investigation, to demonstrate that it took reasonable measures to address a student’s Title IX sexual harassment complaint.
For more information about the Title IX Final Regulations and the implications for public and private K-12 schools, please see our prior article here. If you have any questions regarding Title IX requirements and investigatory proceedings, as well as Title IX training, please contact Jen Deutch, Jessica Nguyen, or Kaitlin Atlas.