The Catholic University of America

Title IX of the Education Amendments of 1972 cases

Selected Case Law

Williams v. Board of Regents of the University System of Georgia, et al. (Case No. O4-13800, 11th Circuit, Feb. 9, 2007)

After being raped in a dorm room by several members of the basketball team, the plaintiff brought this civil action against the University for sexual harassment under Title IX, as well as for violation of 42 USC Section 1983. The Court of Appeals reversed the district courts dismissal of plaintiff's Title IX claims against both the University and the University Athletic Association, and remanded to the district court for futher proceedings. The court found that the university knowledge of past sexual misconduct by a student before enrollment at the university may support a finding of deliberate indifference under the Title IX standard. The court also found that defendant University of Georgia Athletic Association (UGAA) may be treated as a recipient of Title IX funds if plaintiff's allegation that the university had ceded control of its athletic program to UGAA is sustained at trial. From the opinion:

First, Title IX requires that the plaintiff prove that the deliberate indifference occurred in response to discrimination she faced. Davis, 526 U.S. at 633. Second, as Davis requires, a Title IX recipient "may not be liable for damages unless its deliberate indifference "subject[s]" its students to harassment. That is, the deliberate indifference must, at a minimum, "cause [students] to undergo" harassment or "make them liable or vulnerable" to it. Id. at 644-45 (citing Random House Dictionary of the English Language 1415 (1966) (defining "subject" as "to cause to undergo the action of something specified; expose" or "to make liable or vulnerable; lay open; expose"); Webster's Third New International Dictionary 2275 (1961) (defining "subject" as "to cause to undergo or submit to: make submit to a particular action or effect: EXPOSE"). Based on the Davis Court's language, we hold that a Title IX plaintiff at the motion to dismiss stage must allege that the Title IX recipient's deliberate indifference to the initial discrimination [*25] subjected the plaintiff to further discrimination.

As stated earlier, Adams, Dooley, and Harrick's decision to recruit Cole and admit him through UGA's special admission process was a form of discrimination that Williams suffered. According to Williams, Adams, Dooley, and Harrick knew at that point of the need to supervise Cole for two reasons. First, UGA and UGAA officials had received suggestions from student-athletes that UGA and UGAA ensure that athletic coaches inform their athletes about the sexual harassment policy applicable to student-athletes. Second, and more importantly, Williams alleges that Adams, Harrick, and Dooley knew about Cole's past sexual misconduct. Nevertheless, even with its knowledge of the need to inform its student-athletes about the applicable sexual harassment policy and of Cole's past sexual misconduct, UGA and UGAA failed to adequately supervise Cole. Williams's allegations of UGA and UGAA's failures are sufficient at this stage to establish deliberate indifference under our municipality liability precedent. But to satisfy our Title IX precedent, Williams must go further and sufficiently allege that the deliberate indifference subjected her to further [*26] discrimination.

Williams meets the Title IX standard through her allegations regarding the January 14 incident. UGA and UGAA's failure to inform its student-athletes about the applicable sexual harassment policy and failure to supervise its student-athletes subjected Williams to this further harassment and caused Williams to be the victim of a conspiracy between Cole, Brandon Williams, and Thomas to sexually assault and rape her. By placing Cole in a student dormitory and failing to supervise him in any way or to inform him of their expectations of him under the applicable sexual harassment policy, UGA and UGAA substantially increased the risk faced by female students at UGA.

Simpson v. University of Colorado, United States District Court for the District of Colorado,

2005 U.S. Dist. LEXIS 5633, March 31, 2005.

In this case the plaintiffs, two University of Colorado students, alleged a violation of Title IX, (actionable sexual harassment and sexual assault) based on the the fact that they were sexually assaulted at a party attended by University of Colorado football players and recruits. In granting summary judgment for the university, the court held that as follows:

Considered as a whole, however, all of the relevant information known to the CU officials did not constitute adequate notice, under Title IX, that female CU students, including the plaintiffs, faced a risk that CU football players and recruits would sexually assault female University students as part of the recruiting program, including the risk that those assaults would be aided or exacerbated by excessive alcohol use by players, recruits, and female students. Viewing the facts in the record in the light most favorable to the plaintiffs, I conclude that a reasonable fact finder could not find that the University had adequate notice, under Title IX, of the risk at issue in this case. Absent sufficient evidence that the University was on notice of this risk, the plaintiffs cannot prove their Title IX claim against the University. The University is entitled to judgment as a matter of law.

In reaching this conclusion, the court set forth five elements that would have to have been proved by plaintiffs to establish their claim, as noted by the court below:

The parties disagree on the wording of the elements of a Title IX claim in the context of this case. Based on Davis and Murrell, I conclude that the plaintiffs must allege and prove by a preponderance of the evidence the following five essential elements to establish their Title IX claim:
1. that the University had actual knowledge of sexual harassment of female CU students by football players and recruits as a part of the football recruiting program;
2. that the University was deliberately indifferent to this known sexual harassment of female CU students by football players and recruits as a part of the football recruiting program;
3. that the plaintiffs were subjected to severe, pervasive and objectively offensive sexual harassment caused by the University's deliberate indifference to known sexual harassment;
4. that the harassment occurred in the context of an educational activity; and
5. that the harassment had the systemic effect of depriving plaintiff of access to educational benefits or opportunities.

Jackson v. Birmingham Board of Education, (No. 02-1672) decided March 29, 2005

In this case brought under Title IX, the U.S. Supreme Court held that the private right of action under Title IX encompasses claims of retaliation. Roderick Jackson was a high school teacher and basketball coach for the girls' basketball team. In December of 2000 he began to complain to his supervisor that the lack of adequate funding, equipment and facilities made it difficult for him to do his job. He pointed out that the girls team was not receiving equal treatment from the school district. Instead of responding to his complaint, the school began to give him negative evaluations, and in May 2001 took away his job as basketball coach. He filed suit, alleging a violation of Title IX. The District Court and the 11th Circuit Court of Appeals affirmed the dismissal, on the ground that Title IX does not encompass claims of retaliation. The U.S. Supreme Court granted cert to resolve a conflict in the Circuits over the issue of whether or not Title IX's private right of action encompasses claims of retaliation for sex discrimination. The Court held as follows:

Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action. Retaliation is, by definition, an intentional act. It is a form of "discrimination" because the complainant is being subjected to differential treatment. See generally Olmstead v. L. C., 527 U.S. 581, 614 (1999) (Kennedy, J., concurring in judgment) (the "normal definition of discrimination" is "differential treatment"); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22 (1983) (discrimination means "less favorable" treatment). Moreover, retaliation is discrimination "on the basis of sex" because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional "discrimination" "on the basis of sex," in violation of Title IX.

In answer to the argument that Title IX does not expressly mention retaliation, the Court pointed out that neither does it expressly mention sexual harassment, which is covered under the statute, and also noted that Title IX was broadly drafted, where Title VII spells out in greater detail the conduct that constitutes unlawful discrimination. The Court also dismissed the argument that Jackson was not entitled to invoke the protection of Title IX because he was an indirect victim of sex discrimination. Justice O'Connor, who wrote the 5-4 opinion, stated as follows:

Congress enacted Title IX not only to prevent the use of federal dollars to support discriminatory practices, but also "to provide individual citizens effective protection against those practices." Cannon, 441 U.S., at 704. We agree with the United States that this objective "would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation." Brief for United States as Amicus Curiae 13. If recipients were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result. See Sullivan, supra, at 237 (noting that without protection against retaliation, the underlying discrimination is perpetuated). Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Indeed, if retaliation were not prohibited, Title IX's enforcement scheme would unravel.

The case will now go back to the lower courts where there will be a decision as to whether the adverse employment action was due to retaliation based on Mr. Jackson's complaints about sex discrimination.

OCR September 22, 2004 compliance determination on a complaint filed alleging hostile environment on basis of race and sex at University of North Carolina-Chapel Hill. The complaint was resolved favorably on behalf of the University.

National Wrestling Association et al. v. U.S. Department of Education (No. 03-5169) (Oct. 8th, 2004) US Supreme Court certiorari denied by Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 545 U.S. 1104, 125 S. Ct. 2537, 162 L. Ed. 2d 274, 2005 U.S. LEXIS 4519 (2005)

Decision of U.S. Court of Appeals for the D.C. Circuit denying a petition for rehearing in the case below. The court reiterated that the decision in Washington Legal Foundation v. Alexander, 984 F. 2d 483 (D.C. Cir. 1993) was controlling. The availability of a private cause of action directly against universities bars the lawsuit against the agency.

National Wrestling Association et al. v. U.S. Department of Education (Civ. No. 02-0072)

In this 121 page opinion issued on June 11,2003 by Judge Emmet G. Sullivan for the United States District Court for the District of Columbia, the Court dismissed the lawsuit by the wrestling coaches who had hoped to have the U.S. Department of Education gender equity rules under Title IX ruled unconstitutional. The plaintiffs contended that the manner of enforcement discriminated against male athletes, targeting the 1979 Policy Interpretation and the 1996 Clarification. The Judge found that the plaintiffs did not have standing (they failed the causation and redressability tests) to sue the Department of Education. The Court also noted that Title IX was only one of the factors that induced colleges to drop sports, and that there was no proof that eliminating the policies would provide the relief sought by Plaintiffs. The lengthy opinion contains a thorough review of the history of Title IX as enforced by the Department of Education.

Oden v. Northern Marianas College, 284 F.3d 1058 (9th Cir. 2002) In a case applying the standard set forth in Gebser v. Lago Vista Independent School District, the 9th Circuit Court of Appeals held the University was not guilty of "deliberate indifference" to a complaint of sexual harassment, and thus the district court's entry of summary judgment was affirmed in this case. In relevant part the opinion notes the actions the University did take:

The material facts are not in dispute. Upon receiving actual knowledge of the alleged sexual harassment, NMC took action by (1) providing NMC counselors to assist Oden in documenting and presenting her case before the Committee; (2) providing Oden with one-on-one counseling sessions; (3) instructing Dalla Pozza to avoid contact with Oden; (4) conducting a hearing; (5) concluding that Dalla Pozza had sexually harassed Oden; and (6) imposing a number of disciplinary sanctions upon Dalla Pozza. Far from demonstrating "deliberate indifference," these facts demonstrate that NMC actively engaged in investigating and resolving Oden's allegations (from page 1061 of the opinion).

Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274 (1998). In Gebser, the Supreme Court held that a school district will not be liable under Title IX unless an official, who, at a minimum, has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of the discrimination, and fails to respond. Failure to respond must amount to deliberate indifference to the discrimination. Mere negligence will not suffice. Failure to comply with the Code of Federal Regulations requiring adoption and publication of grievance procedures and anti-harassment policy does not establish actual notice and deliberate indifference.

In the case of Davis v. Monroe County Bd. of Education, 526 US 629 (1999), the Supreme Court ruled in a 5-4 decision that a school board may be held liable for damages under federal law when the school has actual knowledge of student-on-student sexual harassment and is deliberately indifferent to the action and fails to address the situation. The harassment must be so severe, pervasive, and objectively offensive, that it can be said to deprive the victim of access to the educational benefits or opportunities provided by the school. The case was brought under Title IX, and thus the language of the decision applies to any education program or activity receiving federal financial assistance. The fact situation in this case involved repeated harassment of a female fifth grader in a public elementary school. While application of the law to the facts might differ in the postsecondary setting, the legal standard is still relevant. The Court made it clear that student-on-student harassment of the type described above is gender harassment for purposes of Title IX. The educational institution would not be liable without having had actual knowledge of the harassment.



Links checked July 6th, 2010, FJL.