United States: When Is Rape A Title IX Civil Rights Act Violation?

Last Updated: November 4 2014
Article by Nathan P. Roberts and Anna L. Price

Title IX of the Civil Rights Act was enacted in June 1972 with the purpose of eliminating discrimination on the basis of sex in America's education system. In February 2012, as the forty-year anniversary of Title IX approached, a young woman was sexually assaulted in the bathroom of a local high school. The perpetrator was a fellow special education student who had become obsessed with the victim, our client. The District's response to the assault was half-hearted, at best; the offender was never arrested or charged, and our client was left without the medical or psychological treatment necessary to deal with the aftermath of such an event. She soon determined that holding the school district accountable for its role would be an important part of the healing process, and we agreed to represent her in a Title IX lawsuit. This article outlines Title IX's application to "peer-on-peer" harassment situations, summarizes the facts of our case, and discusses why our client's sexual assault qualified as a Title IX violation.

"Peer-on-Peer" Harassment Under Title IX

Title IX was part of the Education Amendments of 1972, codified at 20 U.S.C. §§ 1681-1688. With certain limited exceptions, the law provides that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"

Title IX is enforceable through an implied right of action,1 through which monetary damages are available.2 In the context of student-to-student sexual harassment, the Supreme Court has held that liability will attach to a school district under Title IX where it is "deliberately indifferent to sexual harassment, of which [the district has] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."3 Whether gender-oriented conduct rises to the level of actionable harassment under Title IX "depends on a constellation of surrounding circumstances, expectations, and relationships."4

When student-on-student harassment (or rape) occurs, a school district may be held liable under Title IX if four distinct requirements are met.5 First, the district must exercise "substantial control over both the harasser and the context in which the known harassment occurs."6 Second, the sexual harassment must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."7 Third, the school district must have "actual knowledge" of the harassment.8 Finally, the school district must subject the student to harassment via "deliberate indifference."9 The deliberate indifference prong is met if the district causes students to undergo harassment or makes them more liable or vulnerable to it. Put another way, liability is triggered if, in addition to fulfilling the first three prongs, the district's response to the harassment "is clearly unreasonable in light of the known circumstances."10

Facts of Our Case

We represented L.S., who was a special education student at Mt. Tahoma High School, in the Tacoma School District, during the 2011-2012 school year. At some point during the school year, she met and befriended Fresnel Williams. He was also a special education student, and they had some classes together. Initially they were friends who would spend time together at school, text, and call each other, and occasionally spend some time together outside of class.

During the very beginning of 2012, after winter break, L.S. noticed that Williams had started to change. By the accounts of L.S.'s teachers, Williams developed an "infatuation" with L.S. He also became aggressive toward her, began pressuring her to date him, and would not leave her alone. Williams eventually began stalking L.S. with constant text messages and phone calls. He began following L.S. around school, even leaving his classes and coming into her classrooms where he was not supposed to be, and had started to become more uptight and jealous when L.S. paid attention to others. He also began showing up at her house uninvited. Williams would constantly tell L.S. that he liked her, but she always turned down his requests to go on dates, or to be his girlfriend. Despite this, Williams began telling his about his plans for their future together as a couple, including getting married and having children.

From this point forward L.S. was very clear with Williams that she was not interested in being romantic with him or in dating him. She also made this clear to her teachers at Mt. Tahoma, and she would often arrive for classes emotional and in tears, due to Williams' unwanted advances and harassment.

In response to Williams' recognized "infatuation" with L.S., the special education teachers held a meeting with Williams and his parents, to advise him that he needed to "back off" from L.S. Despite the meeting, Williams began to get physically aggressive with L.S. He would grab her arm, chase her through the hallways, grab her rear-end, and at one point even attempted to choke her at school, before a friend intervened. L.S. eventually became so afraid of Williams that she tried to avoid him whenever possible.

Unfortunately the staff at Mt. Tahoma did not take the situation seriously enough. They told L.S. to avoid Williams, and they attempted to use Williams' harassment as a teaching tool for L.S. in the art of romance and "appropriate boundaries." In March of 2012, Williams learned that L.S. had become interested another classmate, Alex, and that she and Alex had started dating. This enraged Williams, and he became extremely aggressive with Alex, even threatening to kill him. The situation became known to the administration, and Williams was suspended for one day for making threats. However, the District failed to remove Williams from L.S.'s classes and neglected to put any sort of written safety plan in place.

On March 16, 2012, Williams sent L.S. a threatening text message. This was reported to staff, but no action was taken. Near the end of the day, L.S. was in sixth period class, along with Williams, when she asked to be excused to use the restroom. Williams was in class when L.S. left, but he soon exited the classroom and headed to the restrooms, where he waited for L.S. to exit. When she did, he grabbed her, dragged her into the boys' restroom, and attempted to rape her in one of the stalls. The attack was interrupted when another boy came into the restroom.

Rape as a Title IX Violation

A pre-filing tort claim was filed in the amount of $400,000,11 but the Tacoma School District declined to resolve the matter. On L.S.'s behalf, we then brought claims in federal court for negligence and violation of Title IX, with the latter cause of action giving us the potential for a significant award of attorneys' fees and costs if we prevailed.12 The Tacoma School District was ably represented by Charles P.E. Leitch and Angela N. Marshlain of Patterson Buchanan Fobes & Leitch, Inc., P.S.

Discovery served to confirm the facts as set forth above, and we began preparing for trial. Meanwhile, the District moved for summary judgment, claiming that the relationship between L.S. and Williams was "amorphous" and the teenagers were still learning the boundaries of adult behavior. The School District also argued that after the harassment and alleged rape, L.S.'s grades actually improved. With regard to the requirements of a Title IX claim, the District admitted that it exercised control over F.W. and the context in which the harassment occurred but denied that the other elements were present.

The case had been assigned to U.S. District Court Judge Ronald B. Leighton, and on April 18 he issued his memorandum opinion and order denying the District's motion in its entirety. Regarding the requisite severity, pervasiveness, an objective offensiveness, the Court noted that L.S. would sometimes be emotional and cry in class because of interactions with Williams; in fact, it bothered her enough that she complained to teachers and the administration about it. The Court also cited deposition testimony we had elicited from teachers who admitted that Williams was "very disruptive to [L.S.'s] education and the education of others."

Title IX's "actual knowledge" requirement forecloses a cause of action 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 discrimination."13 "In other words, the district is liable only for failure to address known harassment, not for the harassment itself."14 In our case, the Court found that the knowledge of L.S.'s teachers and at least one administrator was sufficient to create an issue of fact. Likewise, the Court noted that summary judgment is inappropriate where "the plaintiff has alleged specific facts that show that the school district arguably acted with deliberate indifference."15 Summary judgment on the negligence claims was also denied.

The case had been mediated by Margo Keller of Tacoma WAMS. Following denial of the summary judgment, the District began making significant offers. On April 23 the parties reached an agreement to resolve the case for $750,000, nearly double the original claim amount. The case is significant in that it appears to be one of the first reported favorable settlements of a Title IX claim arising from alleged sexual assault perpetrated by a fellow student.

Nate Roberts and Anna Price are trial attorneys at Connelly Law Offices, PLLC. The firm's practice emphasizes catastrophic injury and wrongful death claims, including government liability, civil rights, product liability, medical malpractice, and abuse & neglect cases.

Footnotes

1 Cannon v. University of Chicago, 441 U.S. 677 (1979)

2 Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

3 Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999).

4 Davis, 526 U.S. at 651.

5 Reese v. Jefferson School District No. 14J, 208 F.3d 736, 739 (9th Cir. 2000) (quoting Davis, 526 U.S. at 645).

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 See RCW 4.96.020.

12 See 42 U.S.C. § 1988.

13 Gebser v. Lago Vista Indep. Sch. Dist, 524 U.S. 274, 284 (1998).

14 Order Denying Summary Judgment, L.S. v. Tacoma School District, 3:13-cv-5240-RBL (W.D. Wash.), Dkt. #51.

15 Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.