While educational institutions are holding their collective breath, anticipating the Department of Education (DOE) releasing its promised Notice of Proposed Rulemaking (NPRM) detailing amendments to the existing 2020 Title IX Regulations, the Fourth Circuit Court of Appeals may have thrown a proverbial “wrench” into that release.
On February 7, 2022, the Fourth Circuit filed a petition for certiorari with the U.S. Supreme Court to decide the critical question of what constitutes “actual knowledge” of sexual harassment in cases alleging student-on-student sexual harassment.
The High Court granted the Fourth Circuit’s request to delay filing the petition to April 8, and a conference to decide whether to grant certiorari is scheduled for May 12, 2022. Will this petition delay DOE’s announcement of their planned amendments?
“Actual knowledge” is a critical issue. Under the 2020 Title IX Regulations in effect now, which apply to all educational institutions that receive federal funding, actual knowledge means “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or to any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school.” Once the institution receives actual knowledge of sexual harassment, the entity must “respond promptly in a manner that is not deliberately indifferent,” that is, the entity’s response must be not “clearly unreasonable in light of the known circumstances.”
The court decision from the Fourth Circuit that generated the petition for certiorari, Doe v. Fairfax County School Board, concerned an alleged sexual assault that occurred on a school bus carrying the Oakton High School band in March 2017. Jane Doe, a junior at the school, alleged that an older male band member sexually assaulted her as she shared her blanket with him in the chilly bus, grabbing her breasts and repeatedly forcing her hand on his penis. Upon arrival at the bus destination, Doe told two friends who reported the incident to their school’s Assistant Principal Jennifer Hogan, a chaperone on the trip.
When the bandmembers and chaperones returned to the high school, Hogan called Doe into the office, interviewed her, and had her submit a written statement about what happened. Hogan and the School’s Safety Officer interviewed the alleged perpetrator who admitted he had grabbed Doe’s breasts, but admitted nothing else. In the end, both agreed that they did not think they could call the bus incident a sexual assault. They also decided not to disciple either Doe or the male student for “sexual activity” on a school trip. In May 2018 Doe finally sued the Fairfax County School Board for deliberate indifference to her reported assault, requesting a jury trial.
In 2017 and 2018, pre-2020 Regulations, the standard for actual knowledge in private litigation for damages under Title IX was the standard enunciated in two seminal Supreme Court decisions, Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, published in 1998 and 1999 respectively.
The Gebser decision used the phrases “actual knowledge” and “actual notice” interchangeably, and the Fourth Circuit emphasized this dual usage, reasoning that “actual knowledge” might mean that the hearer received and subjectively understood the nature of the report, but “actual notice” meant the hearer simply received the knowledge, nothing more. Other Gebser language, that the school be “advised” of the conduct, was taken for support of an objective standard, that the report itself constituted “actual knowledge.” Similarly, the Davis court used the phrase “reports of the [harasser’s] misconduct.” Davis also made clear that the school board was required to respond to “complaints” and “allegations” of sexual misconduct between students.
The jury in district court ruled for the School Board, based on its finding that the Fairfax County School Board did not have actual knowledge of an “assault.” The Fourth Circuit reversed the ruling and remanded the controversy back to district court. The Fourth Circuit also declined the rehear the controversy en banc. The Fairfax County School Board then filed their petition for certiorari.
Bottom Line for Schools
The meaning of actual knowledge is the issue in the petition for certiorari from the Fourth Circuit: (1) whether the meaning of actual knowledge is that those who receive the report of sexual harassment have the subjective understanding that the incident reported is actually a assault that violates Title IX, or (2) whether actual knowledge is an objective standard that when a complaint or report of sexual assault is made, the school must not be deliberately indifferent. The Supreme Court also incorporated a separate but related issue that is causing conflicts in several circuits: whether, for the school to be liable under Title IX, the school’s response (or especially its non-response) to the first report of sexual harassment had to have enabled or caused further harassment of the victim, otherwise characterized as “the first rape free.”
The Supreme Court set the date of its first conference on whether or not to grant certiorari for May 12, 2022. Supreme Court conferences on petitions for certiorari are often rescheduled for months before the High Court decides whether to grant cert, to schedule oral arguments and finally announce a decision. It remains to be seen how the Supreme Court will deal with this petition, and how their decision will affect the DOE and its release of the NPRM for the 2020 Title IX Regulations.