06 June 2022

Just When You Thought You Had Title IX Figured Out, A New Twist

Does your school’s Title IX Coordinator know about each and every incident of sex-related misconduct that has occurred within the district?  Do all of your building-level teachers, counselors and administrators who usually receive reports of misconduct know how to identify what might qualify as “sexual harassment” that should be reported to the Title IX Coordinator?  If the answer is no (or you’re not sure), it would be wise to remedy that before school begins next year. This is because the Sixth Circuit Court of Appeals (i.e., the federal court with authority over Michigan schools) recently found that a school may have violated Title IX by (1) failing to prevent the circulation of sexually explicit videos of female students, even though the involved students had no prior history of harassing others or being harassed, and (2) mishandling the female students’ complaints after the fact because building-level administrators failed to recognize the videos as potential sexual harassment covered by Title IX.

Factual Background:  Metropolitan Nashville Public Schools (MNPS) is a large school district serving the city of Nashville and Davidson County, with over 86,000 students enrolled in its 73 elementary, 33 middle, and 25 high schools.  Over the four-year period between 2012 and 2016, there were “over 950 instances of sexual harassment, over 1200 instances of inappropriate sexual behavior, 45 instances of sexual assault, and 218 instances of inappropriate sexual contact” across all schools within MNPS.  Many of those incidents involved students taking and/or distributing sexually explicit photos or videos of themselves or other students.  In 2017, two female students, Jane Doe and Sally Doe, engaged in sexual acts with male students on school property, which were recorded by others and circulated among the student body.  The incidents happened at different high schools and were handled by different Assistant Principals.  Both of the girls reported feeling pressured, intimidated or unsure “how to get out of the situation;” however, neither of the encounters involved use of force. The Assistant Principals involved the School Resource Officers (SROs) in their investigations, but neither of them advised the students, their parents or the Title IX Coordinator that there could be a Title IX issue.  Nor did they report the situations to their respective Principals.  Both investigations focused on whether the sexual activity was consensual; the Assistant Principals did not consider that the video-recordings and/or their dissemination could amount to sexual harassment if the underlying sexual activity was consensual. After Sally’s video was shared, the Assistant Principal told Sally’s mom that the matter was “out of her hands” and referred her to law enforcement.  The school’s SRO did file a police report to have the video taken down; however, Sally continued to be called sexually derogatory names and bullied over the video.  The Assistant Principal offered to meet with and support Sally, but did not take any additional action about the bullying beyond helping arrange for Sally to be homeschooled. After Jane’s video was shared, she was called sexually derogatory names for a couple of weeks before she reported the video to the school. After meeting with the Assistant Principal, who did not impose discipline on any of students involved because he deemed the sexual encounter “consensual,” Sally withdrew from the school almost immediately, explaining that she was fearful of remaining there. Notably, prior to each of the incidents, none of the students involved had any disciplinary or other history that put MNPS on notice that they were likely to engage in, record or distribute recordings of students engaged in sexual activity.

The Decision.  The Court found that MNPS may have violated the female students’ rights under Title IX before the sexual encounters occurred and was therefore responsible for the fact that the videos were circulated because, even though MNPS had no reason to suspect that the specific students involved posed a risk of sexually harassing others or that the female students were particularly vulnerable, MNPS was aware of widespread issues with sexual harassment in its school system, including those that involved photos and videos, based on the significant number of disciplinary incidents across its schools. The Court found that it would defeat Title IX’s purpose to allow MNPS to be indifferent to that general problem by simply handling complaints on a case-by-case basis. The Court also found that MNPS may have violated the female student’s Title IX rights after they reported the videos by failing to respond appropriately and causing them to withdraw from school.  The Court found that, unlike in the higher education setting where an adult student must be subjected to at least one additional act of sexual harassment after reporting the initial harassment to the school, K-12 students can show that that their Title IX rights were violated if, after a single incident, the school failed to respond appropriately.  The Court also found that a reasonable jury could find that MNPS violated Title IX because building administration failed to treat the non-consensual sharing of sexually explicit videos as a Title IX issue over which the school was responsible; failed to inform the family of the steps it would take to address the consequences of the incident; and failed to take additional action to address the continued bullying.

Takeaways:  The Doe v. Metropolitan Nashville Public Schools case illustrates how school administrators with the best of intentions can violate Title IX due to inadequate training and reporting structures.  Here are few key takeaways:

  • Make sure that all ground-level staff are able to identify potential Title IX issues. In this case, multiple building level administrators missed the fact that, even if the sexual encounter was consensual (or at least non-forcible), it still may be a Title IX violation if the video was recorded or distributed without the student’s consent. Likewise, building administrators failed to identify the sexually derogatory names and other bullying as potential Title IX issues.
  • Make sure that all incidents that involve any type of sexual conduct are reported to the Title IX Coordinator. The failure of building administration to do this created two major problems for MNPS: (1) because issues involving sexual misconduct were often kept at the building level, MNPS – as a district – did not know how widespread the issues around sexual harassment or misconduct had become. In other words, the decentralized system for managing complaints prevented MNPS from understanding the scope of the problem and taking action to prevent further incidents; and (2) building level administrators without the requisite level of Title IX training failed to advise families of their Title IX rights or assure them of steps that MNPS would take to prevent further harassment.
  • Consider your overall school climate. Do individual schools or your district as a whole have a widespread problem with sexual harassment?  If so, consider what steps could be taken to resolve that problem, including training students on sexual harassment, consent, and “how to get out of situations” that are no longer welcome.

Reach out to Miller Johnson’s Education team if you have any questions about this case or whether your district is on sound footing.