The U.S. Supreme Court on Monday declined to hear appeals from a school district and a university arguing that lower courts expanded their liability for sexual harassment of students under Title IX in ways that conflict with previously set standards and go against high court precedent.
The justices offered no comment in denying review in (Case No. 21-968) and (No. 22-123). The high court did not rule on the merits of those appeals, but rather left in place lower court rulings that several states and education groups had urged the justices to review.
A coalition of state school boards associations from Virginia, North Carolina, and South Carolina said in a friend-of-the-court brief that the federal appeals court ruling in the Fairfax County case threatens to 鈥渟addle public schools with crippling liability and litigation鈥� under Title IX of the Education Amendments of 1972. Title IX bars sex discrimination in federally funded schools and has been interpreted to cover peer sexual harassment among students.
The Fairfax school district case involves two high school students鈥攐ne a junior and one a senior鈥攚ho engaged in sexual touching while under a blanket on a bus during a school-sponsored band trip. School officials investigated and determined the incident to be consensual. When the mother of the female student involved complained to the district that she believed the sexual activity had not been consensual and that her daughter had been assaulted, school officials stood by their original determination. The district agreed to provide the girl several accommodations, including extra time for assignments and seating away from the boy involved during band class, but did not discipline the boy.
The young woman, identified in court papers as Jane Doe, sued the Fairfax district under Title IX, arguing that officials had been 鈥渄eliberately indifferent鈥� to the alleged sex assault. A jury issued a complicated verdict finding some facts that supported the girl鈥檚 account but issued a verdict for the school district.
On appeal, however, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., to reverse the district court and ordered a new trial.
鈥淎 school may be held liable under Title IX if its response to a single incident of severe sexual harassment, or the lack thereof, was clearly unreasonable and thereby made the plaintiff more vulnerable to future harassment or further contributed to the deprivation of the plaintiff鈥檚 access to educational opportunities,鈥� the 4th Circuit majority said.
The school district sought a rehearing before the full 4th Circuit court, which the full court ruled against granting by a 9-6 vote. One dissenter, Judge J. Harvie Wilkinson, suggested the Supreme Court should take up the district鈥檚 appeal and said that Title IX 鈥渄oes not even hint that a school could be held liable for peer-on-peer harassment about which it was only notified after-the-fact.鈥�
In to the high court, the Fairfax County district said the 4th Circuit decision conflicts with the Supreme Court鈥檚 1999 decision in . That ruling held that schools could be liable for peer-to-peer sexual harassment, but only when it met a high standard of 鈥渄eliberate indifference鈥� the court had set in an earlier Title IX case.
The district also argued that there was a split among the federal courts of appeals, with four such circuits having ruled that a single, isolated incident of harassment occurring before school officials learned of it was not enough to trigger liability. But the 4th Circuit panel鈥檚 decision joined two other federal circuits in taking a more expansive view of districts鈥� liability.
In the Fairfax district, the school boards groups from Virginia, North Carolina, and South Carolina said sexual harassment and assault in schools are 鈥渞eprehensible,鈥� but 鈥渨here harassment is not attributable to a school鈥檚 conduct鈥攁s where it occurred without advance warning鈥擳itle IX liability cannot follow.鈥�
The Fairfax County case had piqued the interest of the justices, who last May asked the Biden administration to offer its views. In , U.S. Solicitor General Elizabeth B. Prelogar said there were several reasons the case would make a poor vehicle for considering the Title IX issues. Most significantly, Prelogar said the 4th Circuit had ruled correctly that 鈥淭itle IX liability is not necessarily limited to cases where a school鈥檚 deliberate indifference to an alleged sexual assault causes鈥� additional harassment after school officials had received notice of the alleged assault.
The University of Toledo case stemmed from alleged sexual harassment of a student by a lecturer and raised similar issues about the scope of the educational institution鈥檚 liability under Title IX. Nine states had supporting the university鈥檚 appeal of by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati. The U.S. solicitor general did not offer an opinion on the case.
So, with its brief order on Monday, the court declined to take up the Title IX issues at this time.
