NO ONE IS AN INAPPROPRIATE PERSON: THE MISTAKEN APPLICATION OF GEBSER'S 'APPROPRIATE PERSON' TEST TO TITLE IX PEER-HARASSMENT CASES.

• Author: Bardwell, Brian

CONTENTS INTRODUCTION I. GEBSER AND DAVIS II. POST--DAVIS CASE LAW A. The Majority Rule: Appropriate-Person Analysis Is Inapplicable to Peer-Harassment Claims B. The Minority Rule: Liability for Peer Harassment Requires Notice to an Appropriate Person III. THE SHORTCOMINGS OF CURRENT TITLE IX INTERPRETATIONS A. Title IX Is Not Achieving Its Goals Under the Court's Current Interpretations B. The Inequitable Results of the Appropriate-Person Test IV. WHY APPROPRIATE-PERSON ANALYSIS DOESN'T WORK A. What Is Corrective Action? 1. Corrective Action Means More Than Swift and Severe Punishment 2. Corrective Action Includes Remedial Measures to Benefit the Victim B. The Collegiate Athletic Coach: A Case Study 1. Courts Generally Accept Coaches as Appropriate Persons in Peer Harassment Cases 2. Coaches Employed by Schools Are Explicitly Empowered to Take Corrective Action 3. Students Are Obligated to Comply with a Coach's Directives C. Ross Is Wrong. V. RESOLUTIONS CONCLUSION INTRODUCTION

Abigail Ross, a sophomore at Tulsa University, reported to school officials in 2014 that Patrick Swilling Jr., one of the school's basketball players, raped her. (1) In the course of the school's investigation of her complaint, Ross learned that years earlier, Tulsa University Campus Police ("TUCP") officers fielded a pair of complaints that Swilling had raped another student. (2) The earlier victim maintained that she told the officers that she had been raped, but the director of the police department, later claiming that she denied ever being raped, chose not to document the report or alert the administration. (3)

During Swilling's disciplinary hearing, the school refused to allow Ms. Ross to make any mention of the earlier rape report--or the two rape reports that surfaced during the investigation--and applied "strained reasoning" to conclude that Swilling had probably not raped Ross. (4) Ross dropped out of classes in the spring semester and never returned to Tulsa University after the school issued its report. (5)

Ross filed a complaint alleging that the university had violated Title IX of the Education Amendments of 1972 (6) through its deliberate indifference to the 2012 rape report and her report. (7) The U.S. District Court for the Northern District of Oklahoma granted the university's motion for summary judgment on those claims, (8) and the Tenth Circuit affirmed, holding that the school could not be held liable because no one had notified an "appropriate person," i.e., an official "with authority to take corrective action," (9) that Swilling's presence posed a risk to the campus community. (10)

While the District Court had found three different bases for concluding that the campus security officers who fielded the 2012 report were appropriate persons, (11) the Tenth Circuit disagreed, holding that none of those reasons were adequate: First, although TUCP was supposed to initiate the school's "corrective action" process when it received a report of sexual assault, the Tenth Circuit said this was inadequate because the officers were required to pass the report on to someone who could take corrective action--not to take corrective action themselves; (12) Second, although TUCP consists of officers from the Tulsa Police Department and its own armed (13) investigators with arrest authority, (14) the Tenth Circuit concluded that "[i]t is not clear" how a police investigation into rape allegations could constitute corrective action, stating that "[p]erhaps investigation is a form of corrective action; perhaps not. The answer is not self-evident. ..."; (15) Finally, the District Court concluded that letting the university tell students that TUCP would institute corrective action and then letting TUCP neglect that obligation would allow the university to "effectively shield itself from Title IX civil liability." (16) The Tenth Circuit rejected this rationale, as well; even if university policy tasked TUCP with beginning corrective measures, it had not "expressly" labeled TUCP or its director as an "appropriate person[]." (17)

The court held that employees who are merely cogs in the wheel of the Title IX reporting process, who "cannot themselves take corrective action" cannot be deemed appropriate persons. (18) It did not say what kinds of corrective action must be within an appropriate person's power, but one hypothetical implied that the power would lie with "a Dean of Students who is tasked with adjudicating student-conduct complaints." (19)

Ross's petition for certiorari is now pending before the U.S. Supreme Court. (20) The petition echoes the District Court's opinion, providing that the Tenth Circuit's holding "effectively creates a framework for schools and universities to insulate themselves from Title IX liability" (21) and asking the Court to review the Tenth Circuit's application of the "appropriate person" test first announced in Gebser v. Lago Vista Independent School District. (22)

The Court should grant the petition, but not on the questions presented. This Comment argues instead that both the District Court and the Tenth Circuit erred in applying the appropriate-person test at all.

Part I analyzes Gebser and Davis v. Monroe County Board of Education, (23) the landmark cases giving rise to the private cause of action under Title IX for sexual harassment, and the differing approaches the Court took in laying out the elements of those claims in cases involving teacher-harassers and student-harassers.

Part II discusses the development of the case law in the circuit courts since Davis and the extent to which courts have treated Davis either as a mere extension of Gebser or as establishing an independent test for liability in peer-harassment cases.

Part III argues that the Supreme Court should intervene to clarify the law in this area. Such a decision would at once resolve the split among circuits, bolster the public policy embodied in Title IX, and address the inequitable consequences for students who attend schools that lure them into reliance on a robust Title IX process that, in fact, does not exist.

Part IV lays out the problems with applying the appropriate-person test to peer-harassment cases, using a collegiate athletic coach as a case study.

Finally, Part V proposes that the Court clarify the proper approach for peer-harassment cases either by explicitly disclaiming the applicability of the appropriate-person test or by establishing a presumption that school employees are appropriate persons.

1. GEBSER AND DAVIS

   The "appropriate person" requirement was born as part of the Supreme Court's actual-notice test in Gebser. In that case, a mother brought a Title IX hostile-environment claim against the school district after discovering that her daughter was involved in a sexual relationship with one of her teachers. (24) A district court granted summary judgment for the school district, and the Supreme Court affirmed, holding that agency principles were not appropriate for determining whether an employee's harassment of a student should subject a school to a private cause of action for monetary damages under Title IX. (25)

   The school district received reports that the teacher had made sex jokes in class, but the Court held that that was insufficient to put it on notice that the teacher was also having sex with a student. (26) Instead, holding a district liable would require proof that an appropriate person--"an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf"--knew of the threat to students and responded with deliberate indifference that effectively permitted the harassment to continue and deprive the plaintiff of the benefit of her education. (27) Because the report of sex jokes said nothing about the possibility of a sexual relationship, the Court affirmed summary judgment, but it left unaddressed the question of whether the school principal who took those reports was an appropriate person.

   Less than a year later, the Court in Davis said that harassment by a student, rather than a teacher, could also give rise to the implied private cause of action permitted in Gebser. (28) Davis involved a student whose classmate was permitted to continue groping her and harassing other students despite their repeated complaints to teachers and the principal. A district court dismissed the case, saying that peer harassment could not support a Title IX claim, but the Supreme Court re-versed, holding that deliberate indifference to harassment by peers could just as well support a Title IX claim. (29)

   But its decision made no mention of the "appropriate person" test. Had it intended to apply that test to such cases, the circumstances of the case suggest that it would have done so; the omission came despite the fact that the lower courts had never applied the test or offered even a conclusory statement that an appropriate person knew of the harassment, despite the fact that the highest-ranking employee with notice was again a school principal, whose appropriateness the Court had not directly addressed in Gebser, and despite the fact that at least one amicus had raised the issue. (30)

   Instead, the Davis Court's discussion of the Gebser framework repeatedly emphasized that the appropriate-person analysis was a test to be applied to cases of misconduct by employees:

   "[W]e rejected the use of agency principles to impute liability to the district for the misconduct of its teachers." (31)

   "[T]he district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment...." (32)

   "The high standard imposed in Gebser sought to eliminate any 'risk that the recipient would be liable in damages not for its own official decision but instead for its employees' independent actions.'" (33)

   "Gebser thus established that a recipient...