In their hands: restoring institutional liability for sexual harassment in education.

• Author: MacKinnon, Catharine A.
• Position: III. Deliberate Indifference in Practice through Conclusion, with footnotes, p. 2067-2105 - A Conversation on Title IX

3. DELIBERATE INDIFFERENCE IN PRACTICE

   As it is required for institutional liability under Title IX, the deliberate indifference doctrine conceptually has two parts: the schools' knowledge (making the deliberate part possible) and the schools' actions in response to that knowledge (the indifferent part). (136) First, the right person at the school must know of the alleged act of discrimination, which requires a report to an official who has the power to remedy the situation. (137) Then, the school must respond not unreasonably to what it knew. (138) The basic floor for no deliberate indifference is that the school, upon being correctly notified of a teacher's sexually harassing conduct toward a student, "did not 'turn a blind eye and do nothing.'" (139) The relation between the two facets of the standard is, observably, proportionality: the appropriateness of the response measured against facts known when the institution acted or failed to act. (140) Obviously fact-heavy, making rules difficult, deliberate indifference can be determined as a matter of law when facts are undisputed (which happens frequently in this setting). (141) In general, the standard is easy for schools to satisfy, including on motions to dismiss or summary judgment, while doing little about sexual abuse--either its perpetrator or its consequences for survivors and other potential targets. Deliberate indifference is as hard on victims as it is easy on schools. Varying by circuit, heedless incompetence or even malignant cover-ups may not always qualify as deliberately indifferent. (142) A case finding deliberate indifference in which a school has held a hearing is rare.

   Perhaps the strongest factual cases are now settled, so produce no new judicial decisions. But a close reading of all the Title IX cases decided in the federal courts in 2015 that substantially discuss the deliberate indifference standard, together with an assessment of the many brought in the years since Gebser, shows a vast disproportion between the number of cases that have lost on deliberate indifference and those that have won. (143) Yet little distinction emerges between the facts of cases dismissed for legal insufficiency or in which summary judgment is granted for the school, despite the school's failure to stop the sexual harassment or remedy the injury, and those that survive these preliminary motions. (144)

   1. What Did They Know?

      The lack of effectiveness and absence of realism of the deliberate indifference standard begin with the requisite notice. Schools need only act on information they had, but "the precise boundaries of ... 'actual knowledge' ... remain undefined," (145) making the contours of the knowledge required for Title IX liability not notable for transparency or consistency. Decisions often appear arbitrary and contradictory. Some cases essentially require formal complaints for actual notice, (146) which is a lot to require, especially of a child or even a young adult. Many display a narrow, specific, individualized notion of notice, requiring notice of the risk the particular perpetrator would sexually abuse the particular victim before he does, in the way he does. (147)

      The implicit rule often appears to be that schools do not know enough for actual notice standards until they are informed of an exact specific possibility that then becomes an actuality. (148) When parents tell a superintendent about texts between a teacher and their daughter, the superintendent calls the teacher a "sick pervert," the parent says the teacher would "end up raping somebody," (149) and he then rapes their daughter, this is actual notice. (150Who knew?) But numerous complaints for years and years of a teacher-and-coach's sexually inappropriate verbal and physical conduct with girl students are "stale," if many years have gone by, or "too different," if verbal rather than physical, to constitute actual notice to the school of sexual danger to female students when this same man then has a sexual affair with an underage girl student. (151) And when a professor grabs a student consulting with hint in his office, places her on his lap twice, rubs her stomach and fondles her breasts, a trial court finds that the school had no notice despite a prior complaint by another student of the same conduct by the same professor to the school's ombudswoman, and the conduct allegedly continuing against the plaintiff after the incident of which she complained. (152) Essentially, we are waiting for the other shoe to drop, and then another, which even then may be found irrelevant.

      Because notice so often calls for a longer series of ignored reported events, it requires more assault. One plaintiff alleged she was sexually harassed by her physical education teacher the entire time she was in high school. Between her first and second complaint--the second finally found sufficient for notice--her whole high school experience passes before your eyes. (153) Sometimes, for actual knowledge, the report is required to identify not only the specific student and perpetrator, but also the specific behavior. When one young student complained of "an improper relationship" with her dance teacher, but not that it was sexual, although parents and other students had repeatedly complained to the school of an "obsessive and unusual relationship" between the two, no actual knowledge was found by the school until the student told its authorities that she had been sexually molested for two years--after she graduated. (154) The logic of this prong of the doctrine, in relation to the rest, frequently leaves the impression of permitting sexually predatory teachers at least one free bite.

      Much, even all, depends on what a court is willing to infer or project from known facts about the likelihood of future similar or worse facts--in another vernacular, foreseeability. The Seventh Circuit has held that the "school district need not possess actual knowledge of a teacher's acts directed at a particular plaintiff, but it must still have actual knowledge of misconduct that would create risks 'so great that they are almost certain to materialize if nothing is done,'" such as harboring a teacher who is a serial harasser. (155) Of course, several students have to have been harassed and previously reported, or the harasser has to have been known to harass when hired, for the school to know a harasser is serial. Some courts apply an individual victim predictability standard to notice. For example, suspicions that a woman teacher was too friendly with the students and was told to be more professional were found insufficient to constitute actual knowledge when the teacher was abusing a female student for two entire years, because the school was not on notice that she had harassed this specific student. (156)

      The inquiry into notice can focus on knowledge of substantial risk of abuse to students, (157) or on "whether the appropriate official possessed enough knowledge of the harassment that he or she reasonably could have responded with remedial measures to address the kind of harassment upon which [the] plaintiff's legal claim is based." (158) In two different holdings within this range in the same case, one court recently found that appropriate authorities were aware of verbal harassment by students who were responding to a sexual relationship the victimized student was having with the assistant principal, but the school was not aware of the affair itself. (159) Why the assistant principal is not the school, given his obvious awareness of the situation, was not discussed. Moreover, the students knew about the affair: they were verbally harassing the plaintiff about it. The information of which the school was found insufficiently aware was being spread around the school through verbal harassment by students. Why didn't this notify the school of a need to investigate? So when students engage in slurs and name-calling because the assistant principal is sexually abusing a student, the slurs about it are actionable but the sexual imposition by an administrative official of the school itself is not.

      By contrast, further showing the crucial role of inference, when another school was aware of "tendencies to pedophilia, sexual abuse, and harassment of school-age boys" by a teacher and influential former member of the city council, such "warnings that a teacher is prone to inappropriate attractions to students should have set off alarm bells." (160) Comparing the two cases, the flexibility, even arbitrariness, of reasonableness is apparent. In the latter case, the failure to stop the perpetrator's grooming, aggressive pursuit of sexual relations, and offering of money in exchange for sex or a video of the plaintiff masturbating was "clearly unreasonable in light of the known circumstances." (161) By standards applied in other cases, this knowledge of "tendencies" could have been deemed overgeneralized, unspecific to this plaintiff, twenty-twenty intrusive disciplinary hindsight, and insufficient notice of actual events, making the failure to protect the student reasonable. (162)

      Courts range between calling for knowing an individual has "potential" to sexually harass students, (163) to an intermediate standard of knowing of "substantial danger to students" (164) or "substantial risk of serious harm," (165) to requiring a tighter fit between prior acts and ultimate harm, as in the Seventh Circuit's "almost certain to materialize if nothing is done" (166) standard. "Generalized" knowledge of threats of sexual assault is not usually considered sufficient for actual notice, (167) although some courts have found actual notice when members of the same sex-based group as were previously victimized were later victimized by the same sex-based group. In one example, both victims (seventh-grade basketball players) and perpetrators (eighth-grade team members) belonged to the same groups who had allegedly been involved in incidents of...