On Aug. 5, the U.S. Court of Appeals for the Third Circuit, the federal appeals court responsible for federal appeals from New Jersey, Pennsylvania, Delaware, and the Virgin Islands, weighed in on whether a Pennsylvania school district had actual knowledge of sexual harassment, such that it would trigger liability for the district under Title IX. The case involved a situation where an administrator had a sexual relationship with a minor student.

In general, Title IX provides protections from sex-based discrimination in educational programs or activities receiving Federal financial assistance.  Sex-based discrimination under Title IX includes, but is not limited to, sexual harassment or sexual violence.

In order for a school district to be liable for a private right of action under Title IX for sex-based harassment, two conditions must be met: (1) an appropriate person in the district must have had actual knowledge of the harassment, and (2) the district’s response must have been deliberately indifferent.

InM.S. v. Susquehanna Township School District, a Pennsylvania school district had investigated rumors spread by students that an administrator and a high school student had carried on a sexual relationship, but the district ended this investigation after the administrator and student denied the rumors and the investigation did not yield substantiating evidence. The next school year, the district referred the matter to the local police after the rumors resurfaced, and the student later informed the police about the relationship. The administrator was subsequently criminally charged and resigned from his employment after being informed of the district’s intention to terminate him.

The student filed hostile educational environment claims against the district asserting violations of, among other things, Title IX. The lower court ruled in favor of the school district. The issue before the Third Circuit was “whether an appropriate person had actual knowledge” of the administrator’s sex-based harassment of the student. An “appropriate person” under Title IX is “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf.” In this specific case, the administrator would ordinarily be an “appropriate person.” However, the court considered whether fact that the administrator was also the perpetrator meant that the district had actual knowledge of the sexual harassment.

School District Did Not Have “Actual Knowledge” In its decision, the Third Circuit upheld the lower court, stating in its opinion: “We hold that a perpetrator of sexual harassment who has authority to remedy Title IX violations is not an appropriate person for assessing a school district’s Title IX liability in a private right of action.” The court further held that “for a school district to have actual knowledge, a report must be made to an appropriate person who is not the perpetrator.” Moreover, the administrator’s actions did not constitute deliberate indifference where the district had a policy prohibiting unlawful harassment, and the district acted within days of acquiring actual knowledge, which required more than “the mere ‘possibility’ of a sexual relationship between a student and teacher . . . .”

Along with this new case, districts should also note recent changes to the Title IX regulations, which were announced in early May and took effect on Aug. 14, 2020. A summary of the requirements of the changes may be found here. Board members should review the new regulations and may wish to consult with the board attorney regarding whether any changes are needed to district policies or procedures.

In addition to Title IX, districts should also be aware that sexual misconduct by staff members may trigger other legal requirements, including but not limited to the requirements New Jersey’s “pass the trash” law, as well as other liability under federal and state law.  Readers may wish to review the article, “Pass the Trash” Update: One Year Later, which appeared in the July/August edition of School Leader magazine. That article also discussed another relatively recent case from the Third Circuit, Kobrick v. Stevens, in which a student who was the victim of sexual misconduct perpetrated by a band instructor filed claims against the school district she attended as well as the district where the instructor was previously employed.

For more information about the recent changes to the Title IX regulations and general protections against sex-based discrimination and/or harassment, board members should consult with their board attorney or call the NJSBA Legal and Labor Relations Department at (609) 278-5254.