Fourth Circuit: Schools Required to Show their Responses are “Reasonably Calculated” to End Harassment Under Title IX

In Blair v. Appomattox County School Board, the Fourth Circuit Court of Appeals reiterated how educators are judged under Title IX when responding to peer-on-peer sexual harassment allegations.  The Court said it is not enough for administrators to simply show that they took some action.  Instead, their efforts must be “reasonably calculated” to stop the harassment.  As such, schools should be prepared to show that they took specific, concrete steps in response to claims of sexual harassment.

Background of the Case

Pursuant to Title IX, no person can be subject to discrimination on the basis of sex under any education program receiving Federal financial assistance.  Because of the extremely wide reach of federal education dollars, Title IX applies to almost all K-12 and higher education institutions in the U.S.  Multiple categories of conduct by schools are subject to Title IX including evaluation of an educational institution’s response to allegations of peer-on-peer sexual harassment conduct. 

The Supreme Court has previously held that “deliberate indifference” occurs when an educational institution makes a “clearly unreasonable” response to allegations of sexual harassment.  In Virginia, in the recent past, federal district courts applying that standard have looked for an almost complete refusal to act by educators in order to allow allegations of “deliberate indifference” to peer-on-peer sexual harassment under Title IX to survive a motion to dismiss.  For example, in Butters v. J.M.U., a federal trial court denied a motion to dismiss where plaintiff alleged that school officials failed “to conduct any investigation or take any action” after learning of a peer-on-peer sexual assault.  In essence, Courts often looked to whether the plaintiff alleged a “failure to act” by the educational institution following allegations of sexual harassment.

In 2018, the Fourth Circuit in Feminist Majority Fund v. Hurley recalibrated the “deliberate indifference” focus by holding that an educational institution responding to peer-on-peer sexual harassment allegations must show that it took “reasonably calculated” efforts to end the harassment.

The Fourth Circuit’s Decision

Blair involved a 14-year-old high school student who had a history of trauma and mental health challenges and suffered from gender dysphoria.  Identified as female at birth, the student self-identified as male in the 9^th grade and was advised by a school counselor that he could use the boys’ restroom.  Subsequently, the student alleged that while using the male restroom, he was subjected to harassment, threats, and sexual assault by other students.  After learning from the student of these allegations, the school officials allowed the student to use a nurse’s restroom. 

Regarding plaintiff’s claims of “deliberate indifference” under Title IX, the issue before the Fourth Circuit was whether the school division’s response – allowing the student to use an alternate nurse’s restroom – was “clearly unreasonable” such that it constituted “deliberate indifference”.  In a 2 to 1 split decision, the Fourth Circuit reversed the trial court and held that the plaintiff had sufficiently alleged the requisite standard and remanded the case for further proceedings.  The majority, citing Hurley, stated that the correct test was whether the allegations of the complaint showed that the school division’s actions were not “reasonably calculated” to end the harassment.  In reaching its decision, the Court noted a number of actions not taken by the school division to conclude that the actions it did take were not “reasonably calculated” to end the harassment.  In particular, the Court focused on the allegation that no actions had been taken by the school division against the perpetrators of the harassment.    

It is important to note that the procedural posture of Blair involved a motion to dismiss where the Court accepted the complaint’s allegations as true and drew all reasonable inferences in favor of the plaintiff.  On remand, the school division will get a chance to develop its defense, offer its own evidence, and demonstrate the concrete actions it did take in response to the allegations of harassment.    

What Does This Mean for School Divisions?

As alluded to by the minority opinion, the reality of the Court’s decision is that it puts teachers and school administrators under the microscope by second guessing their actions as they deal with some of the toughest issues facing educators and society.  It makes an already difficult job harder. 

Thus, under Blair, it is not sufficient for educators to show that they did something in response to sexual harassment allegations.  They must go further and show that their actions were “reasonably calculated” to end the harassment.  While every case is different, in general, school divisions should be prepared to show that they took multiple concrete actions in response to harassment allegations.  Depending on the specific allegations, such steps could include proactive investigations, Title IX-coordinator involvement, and parental outreach.  Further, such steps should be fully documented as they occur.

If you have any questions, please contact one of our School & Education Law Attorneys.

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