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  • Written by Scott F. Johnson, Professor of Law, Concord Law School

When a Virginia high school teen reported that another student repeatedly touched her breasts and genitals without consent during a school band trip, the school decided there wasn’t enough evidence to establish that there was a “sexual assault.” They did not punish the alleged offender.

The student sued the school in federal court under Title IX[1], a federal law that prohibits discrimination on the basis of sex in any “education program or activity” that receives federal funding. The jury rendered a verdict in favor of the school. But a Fourth Circuit Court of Appeals decision in June 2021 reversed that verdict and ordered a new trial.

As a professor who teaches education law[2] and constitutional law, I believe the Fourth Circuit’s decision is important. It means schools cannot decline to take action on student sexual harassment complaints on the grounds that the school officials who received the complaint didn’t understand it or didn’t believe it to allege sexual harassment.

Rather, the decision indicates that schools must view such complaints objectively and act on any complaint that a reasonable school official would understand to allege sexual harassment. If they do not, they may be liable for monetary damages under Title IX.

What happened in the case?

In Doe v. Fairfax County School Board[3], a student, “Jane Doe,” alleged that a fellow student, “Jack Smith,” “repeatedly touched her breasts and genitals and penetrated her vagina with his fingers despite her efforts to physically block him, and that he also repeatedly put her hand on his penis even after she moved it away” while riding on a bus during a school band trip in 2017.

Jane told two bandmates who were on the trip, and they told an assistant school principal who was also on the trip. The assistant principal did not speak to Jane or Jack about the incident during the trip.

When the band returned, school officials interviewed Jane about the incident and obtained a written statement. They asked her if the sexual activity was consensual. She responded: “I don’t think it was consensual.”

Jack initially denied the claims, but later admitted he did in fact “grab” her and touch her breasts. He continued to deny the other allegations. School officials also met with Jane’s mother, who said Jack’s touching of Jane was nonconsensual and “a sexual assault.” They received emails and a written statement from fellow band students and a parent alleging that Jack pressured Jane into nonconsensual sexual activity and sexually harassed Jane.

After their investigation, school officials concluded that the evidence wasn’t enough to “show that [they] could call it a sexual assault.” They did not take any further action.

Why did the jury rule in favor of the school?

Jane’s Title IX claim sought damages for sexual harassment. Two previous Supreme Court decisions, Gebser v. Lago Vista Independent School District[4] and Davis v. Monroe County School Board[5], establish that such a claim requires a student to prove four things:

First, that their educational institution receives federal funds. Second, that the sexual harassment was so severe, pervasive and objectively offensive that it deprived them of equal access to the school’s educational opportunities or benefits. Third, that the appropriate school authorities had actual notice or knowledge of the alleged harassment. And finally, that the school acted with deliberate indifference.

The jury found that the first two requirements were met, but the third was not because school officials did not “know with certainty that the student had been assaulted[6].”

Therefore, the jury determined that school officials did not have “actual knowledge” and did not violate Title IX, so the student was not entitled to damages.

Why did the court of appeals reverse the decision?

The U.S. Fourth Circuit Court reversed the decision and sent the case back for a new trial because “no evidence supports the jury’s finding that the School Board lacked actual notice of the alleged sexual harassment.” A new trial date has not yet been set.

A key part of the court’s decision in Doe v. Fairfax[7] involves whether a subjective or objective standard should be used to determine whether the school had “actual knowledge” of the alleged assault on the bus.

Objective standards are common in the law and generally focus on what a reasonable person would do in that situation. However, the trial court led jurors to use more of a subjective standard[8] in Jane’s case.

Rather than focus on how a reasonable school official in those circumstances should view Jane’s complaint based on the evidence, the jury focused on how the particular Fairfax school officials who were involved viewed the complaint.

The court of appeals rejected this as “nonsensical.”

A subjective standard, they argued, could allow school officials to escape liability by simply saying they did not understand a complaint to be sexual harassment, or that they did not believe harassment actually occurred.

Instead, the court found that the receipt of a report that can “objectively be taken to allege sexual harassment” is sufficient “regardless of whether school officials subjectively understood the report to allege sexual harassment or whether they believed the alleged harassment actually occurred.”

The court went on to find that based on the evidence, no reasonable jury could conclude that school officials did not have actual notice under this objective standard.

“[I]f these facts do not show that the School Board had actual notice,” the court stated in its opinion, “we don’t know what would.”

Schoolgirl wearing backpack holds hands over face School officials cannot escape liability by simply saying they did not believe harassment actually occurred. Chameleons Eye/iStock/Getty Images Plus[9]

What does it mean going forward?

The court’s decision applies to schools in the Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. The court noted that its decision “comports” with courts in other jurisdictions, but it appears to be the first case to expressly address the subjective versus objective issue.

Courts in other circuits will now determine whether to follow the decision or not.

Courts that do follow the decision and use the objective standard will likely find that actual notice is met when school authorities receive complaints that expressly mention sexual assault, sexual harassment or sexual activity that is “unwelcome and nonconsensual.”

Lower courts will need to determine the parameters of when complaints that do not clearly include this information meet the actual notice standard – for example, if a student complains that another student is harassing them, but does not describe the harassment or mention a sexual aspect. In doing so, the analysis used by courts that follow the objective standard will be how a reasonable official would interpret the complaint – not how the actual official interpreted it.

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Authors: Scott F. Johnson, Professor of Law, Concord Law School

Read more https://theconversation.com/sexual-harassment-cases-at-school-appeals-court-ruling-could-change-how-schools-judge-complaints-164222

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