Supreme Court won’t take up cases seen as expanding schools’ responsibility for sexual harassment

The U.S. Supreme Court on Monday declined to hear appeals from a school district and a university, arguing that lower courts are expanding their liability for sexual harassment of students under Title IX in a way which conflicts with previously established standards and goes against High Court precedent.

The judges made no comment in denying the review in Fairfax County School District v. Doe (Case No. 21-968) and University of Toledo vs. Wamer (No. 22-123). The High Court did not rule on the merits of these appeals, but instead left in place lower court rulings that several states and education groups had urged judges to review.

A coalition of state school board associations from Virginia, North Carolina and South Carolina said in a friend of the court brief that the federal appeals court’s decision in the county’s case of Fairfax threatens to “saddle public schools with crippling liability and litigation”. under Title IX of the Education Amendments of 1972. Title IX prohibits sex discrimination in federally funded schools and has been interpreted to cover peer-to-peer sexual harassment among students.

The Fairfax School District case involves two high school students – a junior and a senior – who engaged in sexual touching while under a blanket on a bus during a school-sponsored group trip. School officials investigated and determined the incident was consensual. When the mother of the 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 decision. The district agreed to provide the girl with several accommodations, including extra time for homework and seating away from the boy involved during music class, but did not discipline the boy.

The young woman, identified in court documents as Jane Doe, sued the District of Fairfax under Title IX, arguing that officials had been “deliberately indifferent” to the alleged sexual assault. A jury returned a complicated verdict finding some facts that supported the girl’s account, but returned a verdict for the school district.

On appeal, however, a panel of the United States Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 last year. to quash the district court and ordered a new trial.

“A school may be liable under Title IX if its response to a single incident of serious sexual harassment, or lack thereof, was patently unreasonable and thereby made the complainant more vulnerable to future harassment or further contributed to the deprivation plaintiff’s access to educational opportunities,” the 4th Circuit Majority said.

The school district requested a rehearing before the full 4th Circuit court, which the full court ruled against granting by a vote of 9 to 6. A dissenting judge, Judge J. Harvie Wilkinson, suggested to the Supreme Court to hear the District’s appeal and said Title IX “does not even suggest that a school could be held liable for peer harassment of which it was not informed until after-the do.”

In his petition in the high court, the Fairfax County District said the 4th Circuit’s decision conflicts with the Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education. That ruling found that schools could be held liable for peer-to-peer sexual harassment, but only when they met a high standard of “willful indifference” that the court had set in an earlier Title IX case.

The district also argued there was a split between the federal appeals courts, with four of those circuits ruling only one isolated incident of harassment that occurred before school officials were notified n was not sufficient to incur liability. But the 4th Circuit panel’s decision joined two other federal circuits in taking a broader view of district accountability.

In their supporting brief Fairfax District, Virginia, North Carolina and South Carolina school board groups have said sexual harassment and assault in schools is “reprehensible,” but “when the harassment is not attributable to the conduct of a school – such as when it occurred without prior warning – Title Liability IX cannot follow.

The Fairfax County case had piqued the interest of judges, who last May asked the Biden administration for its views. In a brief filed in September, US Solicitor General Elizabeth B. Prelogar said there were several reasons the case would be a poor vehicle to examine Title IX issues. More importantly, Prelogar said the 4th Circuit correctly ruled that “Title IX liability is not necessarily limited to cases where a school’s willful indifference to an alleged sexual assault causes” additional harassment after school officials were notified of the alleged assault.

The University of Toledo case arose from the alleged sexual harassment of a student by a professor and raised similar questions regarding the extent of the educational institution’s liability under Title IX. Nine states had filed a friend of the court brief supporting the university’s appeal of an adverse ruling earlier this year by the United States Court of Appeals for the 6th Circuit, in Cincinnati. The United States solicitor general did not comment on the case.

So, with its brief order on Monday, the court declined to entertain Title IX issues at this time.