On August 5, 2020, the United States Court of Appeals for the Third Circuit issued a precedential decision in the matter of M.S. v. Susquehanna Twp. Sch. Dist., 2020 U.S. App. LEXIS 24639 (3d Cir. 2020), clarifying the scope of a school district’s potential Title IX liability for sex-based harassment. The Court determined that a school administrator who, himself, was the perpetrator of the alleged sex-based harassment, could not qualify as the “appropriate person” required under Title IX to have actual knowledge, sufficient to visit liability upon the district itself.
The plaintiff in the case was a student at Susquehanna Township High School. In January of 2013, Shawn Sharkey assumed a role as assistant principal and special educator at the high school. In short order, Sharkey and M.S., the plaintiff carried on a sexual relationship that lasted through March of 2013. The district conducted an investigation shortly thereafter, after rumors about this relationship percolated through the student body. Based on both M.S. and Sharkey’s denials, as well as the absence of any other evidence besides the rumors themselves, the district determined in its initial investigation that the allegations were inconclusive, and took no disciplinary action. At the beginning of the following school year, the rumors resurfaced, and the district once again investigated, this time involving local police. During a police interview, M.S. admitted for the first time that a sexual relationship had been engaged in. Sharkey was criminally charged and resigned his position with the district.
Thereafter, M.S. filed a lawsuit in federal court alleging, inter alia, a hostile educational environment due to Sharkey’s sexual harassment, and students’ behavior, in violation of Title IX. In order for a school district to be liable under Title IX’s private right of action in such a context, an “appropriate person” must have actual knowledge of the sex-based harassment and must respond with deliberate indifference. An “appropriate person” is defined as an official who, at a minimum, has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf. The actual knowledge requirement prevents the award of damages based solely on vicarious liability and constructive notice. It also protects against the recipient (in this case the school district) being liable for not its own official decision, but instead for its employees’ independent actions. The school district moved for summary judgment against this claim at the district court and it was granted.
The court considered the Supreme Court’s decision inGebser v. Lago Vista Independent School District,524 U.S. 274 (1998). There, the Supreme Court stated that “when a school district’s liability rests on actual notice principles . . . the knowledge of the wrongdoer himself is not pertinent to the analysis.” As applied to the M.S. matter, this meant that Sharkey,m, who had personal notice of his own misdeeds, could not constitute a valid source of notice that would attribute to the school district liability as a whole.
The Court also considered the holding in the Supreme Court’s decision in Jackson v. Birmingham Board of Education, 544 U.S. 167, 180 (2005), where the Supreme Court provided a hypothetical, suggesting that a school district “would likely be liable for a Title IX violation if a [school] principal sexually harasses a student, and a teacher complains to the school board but the school board is indifferent.” The Third Circuit found this persuasive, signaling the Supreme Court’s intent for a requirement that there be another party, other than the alleged harasser, that is a necessary part of the reporting, and a larger board or district that is indifferent to the allegations after and despite being put on notice. The perpetrator in a position of influence’s notice alone is insufficient to sustain a broader claim. Liability of a district or board of education is therefore reliant on multiple parties (including actors other than the perpetrator) being involved and put on notice with ensuing inaction. As applied here, when the school district was made aware of the rumors it conducted an investigation into the matter and did not act indifferent towards the potential issues presented, however, true actual knowledge of the misconduct committed rested with the perpetrator alone.
The Third Circuit concluded that it would defeat the purpose of Title IX if liability on a federal funding recipient was imposed when the perpetrator of sexual harassment was the authorized official responsible for addressing it. It is doubtful that knowledge of the perpetrator’s own guilt would then be transmitted to other officials in positions of authority for the subject recipient. The matter would likely then go unaddressed. Sexual harassment was in fact a violation of the school district’s policy and the deliberate indifference of the perpetrator to address his own misdeed does not reflect on the entire school district. The school district pursued an initial investigation, but the investigation did not produce the necessary actual knowledge to remedy the situation. The sole perpetrator did not constitute an appropriate person with actual knowledge that would hold the school district liable. The Third Circuit, therefore, affirmed the district court’s ruling of summary judgment in favor of the school district on the Title IX issue.