Bullying on the Basis of Sex: the Eighth Circuit Properly Established Title Ix Standards of Liability for Schools in Wolfe v. Fayetteville, Arkansas School District

• Publication year: 2012

47 Creighton L. Rev. 521. BULLYING ON THE BASIS OF SEX: THE EIGHTH CIRCUIT PROPERLY ESTABLISHED TITLE IX STANDARDS OF LIABILITY FOR SCHOOLS IN WOLFE V. FAYETTEVILLE, ARKANSAS SCHOOL DISTRICT

BULLYING ON THE BASIS OF SEX: THE EIGHTH CIRCUIT PROPERLY ESTABLISHED TITLE IX STANDARDS OF LIABILITY FOR SCHOOLS IN WOLFE V. FAYETTEVILLE, ARKANSAS SCHOOL DISTRICT

Kaylen K. Fleming

I. INTRODUCTION ................................... 521

II. FACTS AND HOLDING ............................ 523

III. BACKGROUND .................................... 525

A. TITLE IX: PROVIDING PROTECTION FROM GENDER-BASED DISCRIMINATION IN EDUCATION .... 525

B. TITLE VII: PROVIDING PROTECTION FROM GENDER-BASED DISCRIMINATION IN EMPLOYMENT .................................... 526

C. THE SUPREME COURT TACITLY APPROVES OF USING TITLE VII CASE LAW TO DETERMINE TITLE IX LIABILITY WITH AN ANALOGY ............ 526

D. THE SUPREME COURT ACKNOWLEDGES A CAUSEOF ACTION FOR SAME-SEX HARASSMENT ........... 527

E. THE SUPREME COURT RECOGNIZES A CAUSE OF ACTION AGAINST A FUNDING RECIPIENT FOR STUDENT-ON-STUDENT HARASSMENT .............. 528

F. THE SUPREME COURT ESTABLISHES AN ACTUAL NOTICE REQUIREMENT ........................... 530

IV. ANALYSIS ......................................... 531

A. THE EIGHTH CIRCUIT PROPERLY RELIED ON TITLE VII PRINCIPLES ............................ 533

B. THE EIGHTH CIRCUIT WAS CORRECT IN AFFIRMING THE DENIAL OF PLAINTIFF'S PROPOSED JURY INSTRUCTION .................... 534

C. THE EIGHTH CIRCUIT'S DECISION PROPERLY REFLECTS THE LIMITATIONS OF TITLE IX LIABILITY ........................................ 535

V. CONCLUSION ..................................... 536

I. INTRODUCTION

In Wolfe v. Fayetteville, Arkansas School District,(fn1) the United States Court of Appeals for the Eighth Circuit determined that an educational entity receiving federal funds may be liable under Title IX ofthe Education Amendments of 1972(fn2) ("Title IX") only if the victim could establish that the harasser intended to discriminate on the basis of sex.(fn3) As a matter of first impression in any federal appellate court, the Eighth Circuit added this requirement to a Title IX plaintiff's burden of proof.(fn4)

Title IX prohibits an educational entity receiving federal funds from discriminating against any person based on gender.(fn5) By enacting this statute, Congress desired to protect potential victims of discrimination and deny the allocation of federal funds to support discriminatory practices.(fn6) A school's potential liability under Title IX has broadened since the statute's inception.(fn7) The United States Supreme Court recognized an implied private right of action.(fn8) The Supreme Court has also acknowledged that a school may be liable for damages under Title IX.(fn9) Additionally, the Supreme Court has extended Title IX protections to hold schools liable for student-on-student sexual harassment.(fn10) To guide their interpretations of Title IX claims, courts often employ principles found in Title VII of the Civil Rights Act of 1964(fn11) ("Title VII"), which prohibits discrimination inthe workplace.(fn12)

This Note will first review the facts and holding of Wolfe.(fn13) This Note explores relevant case law establishing various forms of liability under Title IX, including same-sex and student-on-student discrimination, and the actual notice requirement.(fn14) This Note asserts that the Eighth Circuit properly relied on Title VII principles.(fn15) Drawing on those principles, this Note will argue that the Eighth Circuit correctly affirmed the denial of the plaintiff's proposed jury instruction.(fn16) Further, this Note will argue that the Eighth Circuit's decision properly reflects the limitations of Title IX liability.(fn17) This Note will conclude that the Eighth Circuit properly required the Title IX plaintiff to prove the harasser was motivated by the victim's gender.(fn18)

II. FACTS AND HOLDING

In Wolfe v. Fayetteville, Arkansas School District,(fn19) the parents of William Wolfe ("Billy"), a high school student, sued the Fayetteville School District ("FSD"), alleging violations of Title IX of the Education Amendments of 1972(fn20) in the United States District Court for the Western District of Arkansas.(fn21) The plaintiffs alleged that FSD was liable pursuant to 20 U.S.C. § 1681(a) for the student-on-student sexual harassment Billy encountered at school.(fn22) FSD filed a motion for summary judgment, but the motion was denied by the district court.(fn23)

At the request of FSD, the district court then empanelled a twelve-person jury because Billy's circumstances had attracted national attention.(fn24) Prior to the suit against FSD, Billy was interviewed by The Today Show, 20/20, Dateline, and The New York Times after a video was uploaded to YouTube depicting his classmates violently punching him as he walked home from school.(fn25) Billy argued that the various incidents of harassment amounted to sex-based discrimination because of the physical abuse and name-calling, including epithets like "queer bait," "faggot," and "homo."(fn26) Billy's classmates explained that they accosted him in general, not because of his perceived sexuality, but because he had bullied a friend of theirs who suffered from cerebral palsy.(fn27)

When the case went to trial, the plaintiff and defendants each offered jury instructions regarding the Title IX claim.(fn28) The plaintiff'sproposed instructions stated that sex-based harassment includes falsely labeling the victim as a homosexual in rumors or name-calling, or if the victim failed to meet the other student's expectations of stereotypical males.(fn29) However, the district court declined to follow the plaintiff's proposed instructions.(fn30) The district court's instructions stated that in order for the plaintiff to prevail on the Title IX claim, the plaintiff must prove that (1) he was harassed on the basis of sex; (2) the harassment raised to a certain level of severity; (3) the school district had actual notice of the discrimination; and (4) the school district remained deliberately indifferent to the harassing conduct.(fn31) The court further explained that there must be proof that the harasser was motivated by the victim's sex.(fn32) After the instructions were given, the jury found in favor of FSD.(fn33)

The plaintiffs then filed a motion for a new trial on the basis that the district court erred in granting a twelve-person jury and improperly instructing the jury.(fn34) After the plaintiff's motion for a new trial was denied, the plaintiffs appealed to the United States Court of Appeals for the Eighth Circuit.(fn35) The plaintiffs alleged the district court erred in instructing the jury, arguing that Title IX does not require proof of the harasser's motivation.(fn36)

The Eighth Circuit affirmed the district court's denial of the plaintiffs' proposed jury instruction.(fn37) In affirming the district court's instructions, the Eighth Circuit held that proof of gender-based motivation or intent is required to prevail on a Title IX claim.(fn38) The Eighth Circuit analogized Title VII principles to Billy's Title IX claim, noting that the language of Title VII and Title IX were substantially similar and should not be treated differently.(fn39) The Eighth Circuit reasoned that because Title VII case law requires a showing of the harasser's motivation, this requirement should also be adopted for a Title IX claim as well.(fn40) The Eighth Circuit reiterated that a school could be held liable for student-on-student harassment, but only when the harassment reached a certain level of severity.(fn41) Thus, name-calling, even if related to the victim's gender, does not rise to the level required for an actionable Title IX claim.(fn42) Hence, the Eighth Circuit concluded that the plaintiff must prove that the harasser was motivated by the victim's gender or failure to conform with conventionalgender stereotypes.(fn43)

III. BACKGROUND

A. TITLE IX: PROVIDING PROTECTION FROM GENDER-BASED DISCRIMINATION IN EDUCATION

Pursuant to Title IX of the Education Amendments of 1972(fn44) ("Title IX"), a person is protected from gender-based discrimination by an educational entity that receives federal funding.(fn45) Sexual harassment is discrimination under Title IX, but must rise to a certain level of severity to constitute an actionable claim.(fn46) Courts recognize two forms of sexual harassment, quid pro quo and hostile environment.(fn47) Quid pro quo harassment occurs when a student's educational benefit is conditioned upon submission to sexual advances.(fn48) A recipient of federal funds can be liable for a hostile learning environment if the recipient remains deliberately indifferent to sexual harassment of a student by a teacher or fellow student.(fn49) A recipient may face liability only if it had actual notice of the harassment.(fn50) Although not expressly stated in the statute, the United States Supreme Court hasconcluded that the victim of discrimination has an implied privateremedy.(fn51)

B. TITLE VII: PROVIDING PROTECTION FROM GENDER-BASED DISCRIMINATION IN EMPLOYMENT

Title VII of the Civil Rights Act of 1964(fn52) ("Title VII") prohibits discrimination in the workplace, including sex-based discrimination.(fn53) Title VII also includes the theories of quid pro quo and hostile working environment liability.(fn54) The statute was enacted...