Jane Doe v. Fairfax County School Board

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2203
JANE DOE,
Plaintiff - Appellant,
v.
FAIRFAX COUNTY SCHOOL BOARD,
Defendant - Appellee.
--------------------------------
NATIONAL WOMEN’S LAW CENTER; CHICAGO ALLIANCE AGAINST
SEXUAL EXPLOITATION; CLEARINGHOUSE ON WOMEN’S ISSUES;
DESIREE ALLIANCE; FEMINIST MAJORITY FOUNDATION; FORGE,
INCORPORATED; GENDER JUSTICE; GIRLS INC.; HUMAN RIGHTS
CAMPAIGN; IN OUR OWN VOICE: NATIONAL BLACK WOMEN’S
REPRODUCTIVE JUSTICE AGENDA; KWH LAW CENTER FOR SOCIAL
JUSTICE AND CHANGE; LEGAL AID AT WORK; NATIONAL ASIAN
PACIFIC AMERICAN WOMEN’S FORUM; NATIONAL ASSOCIATION OF
SOCIAL WORKERS, and its Virginia Chapter; NATIONAL CRITTENTON;
NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONAL
PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN’S
POLITICAL CAUCUS; RELIGIOUS COALITION FOR REPRODUCTIVE
CHOICE; STOP SEXUAL ASSAULT IN SCHOOLS; WOMEN’S LAW CENTER
OF MARYLAND, INCORPORATED; TRANSGENDER LAW CENTER;
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES; WOMEN
LAWYERS ON GUARD INC.; WOMEN’S BAR ASSOCIATION OF THE
STATE OF NEW YORK; WOMEN’S LAW PROJECT,
Amici Supporting Appellant.
NATIONAL SCHOOL BOARDS ASSOCIATION; VIRGINIA SCHOOL
BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF BOARDS OF
EDUCATION; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION;
SOUTH CAROLINA SCHOOL BOARD ASSOCIATION,
Amici Supporting Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:18−cv−00614−LO−MSN)
Argued: January 25, 2021 Decided: June 16, 2021
Before NIEMEYER, WYNN, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which
Judge Thacker joined. Judge Niemeyer wrote a dissenting opinion.
ARGUED: Alexandra Brodsky, PUBLIC JUSTICE, PC, Washington, D.C., for
Appellant. Stuart A. Raphael, HUNTON ANDREWS KURTH LLP, Washington, D.C.,
for Appellee. ON BRIEF: Linda M. Correia, Lauren A. Khouri, CORREIA & PUTH,
LLC, Washington, D.C.; John R. Ates, ATES LAW FIRM, PC, Towson, Maryland; Adele
P. Kimmel, PUBLIC JUSTICE, PC, Washington, D.C., for Appellant. Trevor S. Cox,
Richmond, Virginia, Sona Rewari, HUNTON ANDREWS KURTH LLP, Washington,
D.C., for Appellee. Emily Martin, Neena Chaudhry, Sunu Chandy, Elizabeth Tang,
NATIONAL WOMEN’S LAW CENTER, Washington, D.C.; Emily P. Mallen, Marisa S.
West, Michele L. Aronson, SIDLEY AUSTIN LLP, Washington, D.C., for Amici National
Women’s Law Center, et al. Robert W. Loftin, Summer L. Speight, Heidi E. Siegmund,
Richmond, Virginia, R. Craig Wood, MCGUIREWOODS LLP, Charlottesville, Virginia,
for Amici National School Boards Association, Virginia School Boards Association,
Maryland Association of Boards of Education, North Carolina School Boards Association,
and South Carolina School Boards Association.
2
WYNN, Circuit Judge:
Plaintiff “Jane Doe,” a former student at Oakton High School in Vienna, Virginia,
brought this Title IX action against the Fairfax County School Board (“School Board”),
alleging that her school’s administrators acted with deliberate indifference to reports that
she had been sexually harassed by another Oakton student, “Jack Smith.” 1 At the end of a
two-week trial, the jury ruled against Doe, based on its finding that the School Board did
not have actual knowledge of the alleged sexual harassment. Doe subsequently moved for
a new trial, which the district court denied. For the reasons set forth below, we reverse that
judgment and remand the case for a new trial.
I.
A.
The following facts are undisputed except where noted otherwise.
On March 8, 2017, Doe, a junior at Oakton High School and a member of the
school’s symphonic band, traveled with the band by bus to Indianapolis to perform at a
music festival. During the bus trip, Doe sat next to Smith, an older male student. Smith told
Doe that he was cold and asked her if she had a blanket. When Doe offered her blanket to
Smith, he put it over both of their bodies.
Doe alleges that Smith then repeatedly touched her breasts and genitals and
penetrated her vagina with his fingers despite her efforts to physically block him, and that
1
“Jane Doe” and “Jack Smith” are pseudonyms.
3
he also repeatedly put her hand on his penis even after she moved it away. She testified at
trial that during this incident, she felt so “confused,” “shocked,” and “scared” that she was
“frozen in fear the whole time.” J.A. 1712, 1800. 2
Soon after arriving in Indianapolis, Doe told two friends about the incident. They,
in turn, relayed what they had heard to school administrators, allegedly reporting that Smith
had touched Doe “down her pants and up her shirt” without her consent, “forced her hand
on his penis,” and “sexually assaulted [Doe.]” J.A. 383–86, 419–24.
At trial, Assistant Principal Jennifer Hogan testified that before the end of the five-
day band trip, she knew that she was dealing with the “possibility” of a “sexual assault.”
J.A. 1186–87. But school officials—including Assistant Principal Michelle Taylor, who
accompanied the band to Indianapolis—took no action regarding these reports during the
trip, and they did not speak to either Doe or her parents about what had happened on the
bus ride.
Once the band returned from its trip, Assistant Principal Hogan called Doe into her
office for an interview and requested that Doe provide a written statement. Doe’s statement
read: “I moved my hand away but [Smith] moved my hand back onto his genitals. I was so
shocked and scared that I did not know what to say or do. He then started to move his hands
towards me and I tried to block him but he still put his hands up my shirt and down my
pants.” J.A. 2515. During this meeting, Oakton’s Safety and Security Specialist, Wally
Baranyk, asked Doe if the sexual activity had been consensual, and Doe responded, “I don’t
2
Citations to “J.A. __” refer to the Joint Appendix filed by the parties in this appeal.
4
think it was consensual.” J.A. 2518. Hogan interpreted this statement as meaning that Doe
“didn’t want to be a participant” and that there was “a lack of consent.” J.A. 1207–08.
Hogan and Baranyk then interviewed Smith, who initially denied that he touched
Doe sexually against her will or made her touch his penis without her consent. But later in
the meeting, he changed his story, admitting that he did in fact “grab[]” her and touch her
breasts. J.A. 1332–33. He continued to deny that he touched Doe under her pants.
Assistant Principal Hogan also spoke with two other band students to see if they had
seen anything on the bus. Meanwhile, school officials continued to receive reports from
other concerned members of the school community—including both students and
parents—suggesting that Doe had been a victim of a “non-consenting sexual act” and
“sexual harassment.” J.A. 2523, 2526.
After the investigation, Hogan and Principal John Banbury discussed “whether this
was or wasn’t a sexual assault” and ultimately concluded that “the evidence that [they] had
didn’t show that [they] could call it a sexual assault.” J.A. 1291. They also decided against
disciplining either Doe or Smith for engaging in sexual activity while on a school trip.
Afterwards, in a meeting between Hogan and Doe’s parents, Doe’s mother stated
that Smith’s touching of Doe was nonconsensual and thus “a sexual assault.” J.A. 1298–
5
99, 1613. Hogan responded that the administration had concluded that what happened on
the bus did not amount to sexual assault.
After the band trip, Doe sought and received professional counseling for multiple
weeks, and she was diagnosed with adjustment disorder with anxiety. 3 During the rest of
her junior year, Doe was terrified of seeing or being near Smith, which caused her to go
out of her way to avoid him at school and also to refrain from fully participating in band
activities. Doe stated at trial that she felt “so uncomfortable being around . . . Smith that
[she] had to sit out of band class” for a period of time, instead attending class by sitting in
a small practice room by herself. J.A. 1755. And Doe continued to find it difficult to enjoy
and fully participate in her band classes even after Smith had graduated. Meanwhile, her
parents requested, and her teachers provided, a number of accommodations to help Doe
cope with the psychological and emotional trauma resulting from the alleged sexual assault.
B.
Doe brought the instant Title IX action against the School Board in May 2018,
asserting that her school had acted with deliberate indifference to reports of her sexual
assault. The case went to trial in July 2019. During trial, the School Board moved for
3
“An adjustment disorder is an emotional or behavioral reaction to a stressful event or
change in a person’s life” that “significantly interfere[s] with social, occupational or
educational functioning.” Johns Hopkins Med., Adjustment Disorders,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/adjustment-disorders.
Adjustment disorder with anxiety is one of the subtypes of adjustment disorder, and its
symptoms “mainly include nervousness, worry, difficulty concentrating or remembering
things, and feeling overwhelmed.” Mayo Clinic, Adjustment Disorders (Oct. 25, 2017),
https://www.mayoclinic.org/diseases-conditions/adjustment-disorders/diagnosis-
treatment/drc-20355230.
6
judgment as a matter of law, arguing that Doe could not prove deliberate indifference or
any deprivation of access to educational opportunities or benefits. The district court denied
the motion.
Ultimately, the jury returned its verdict for the School Board. The jury found that
Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and
offensive enough to deprive Doe of equal access to the educational opportunities or benefits
provided by her school. However, the jury also found that the School Board did not have
actual knowledge of the alleged sexual harassment. Because that finding ended Doe’s
claim, the jury did not reach the question of whether the School Board had acted with
deliberate indifference to the alleged harassment.
After the district court denied Doe’s motion for a new trial, Doe filed a motion to
reconsider, which was also denied. She timely appealed.
II.
Doe raises several different grounds for granting a new trial or, alternatively,
vacating the district court’s decision and remanding for reconsideration of her motion for
a new trial. But principally, she argues that the district court erred by misconstruing what
it means for a school to have actual notice or knowledge of alleged harassment in Title IX
cases, and that a new trial must be granted because no evidence in the record supports the
jury’s verdict under the correct legal standard.
We agree. As discussed below, we hold that a school’s receipt of a report that can
objectively be taken to allege sexual harassment is sufficient to establish actual notice or
knowledge under Title IX—regardless of whether school officials subjectively understood
7
the report to allege sexual harassment or whether they believed the alleged harassment
actually occurred. 4 We further conclude that under this standard, no evidence in the record
supports the jury’s conclusion that the School Board lacked actual notice of Smith’s alleged
sexual harassment of Doe. Accordingly, we reverse and remand for a new trial. 5
A.
Title IX provides: “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.” 20 U.S.C.
§ 1681(a). To establish a Title IX claim based on student-on-student sexual harassment, a
plaintiff must show that:
(1) they were a student at an educational institution receiving federal funds;
(2) they suffered sexual harassment that was so severe, pervasive, and
objectively offensive that it deprived them of equal access to the educational
opportunities or benefits provided by their school;
(3) the school, through an official who has authority to address the alleged
harassment and to institute corrective measures, had actual notice or
knowledge of the alleged harassment; and
(4) the school acted with deliberate indifference to the alleged harassment.
4
As explained below, “actual notice” and “actual knowledge” are interchangeable terms
for Title IX purposes. For stylistic convenience, we use the term “actual notice” throughout
this opinion to refer to the requisite notice or knowledge that a defendant school board must
have in order to be held liable under Title IX.
5
Doe’s other arguments on appeal also relate to actual notice. Because we conclude that
under the correct legal standard the record evidence all but establishes that the School
Board had actual notice of the alleged sexual harassment, and because we grant a new trial
on that basis, we need not and do not address Doe’s alternative arguments.
8
See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646–52 (1999); Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290–92 (1998); Jennings v. Univ. of North Carolina,
482 F.3d 686, 695 (4th Cir. 2007) (en banc). 6
At the center of this case is the third prong—the actual notice requirement—which
the jury found was not met. Doe argues that a school’s receipt of a report that can
objectively be understood as alleging sexual harassment is sufficient to establish actual
notice—regardless of whether the school in fact construed such a report as one alleging
sexual harassment, or whether the school believed the allegations to be true. In contrast,
the School Board contends that such notice exists only where a school official with
corrective authority becomes subjectively aware that the alleged sexual harassment has
occurred or is occurring. Thus, the critical issue we must decide is: What establishes a
school’s actual notice in Title IX cases? This is a question of law subject to de novo review.
See Fonner v. Fairfax Cnty., 415 F.3d 325, 330 (4th Cir. 2005).
6
In Jennings, we set forth a nearly identical test to the one we articulate here, based on the
Supreme Court’s decisions in Davis and Gebser. See 482 F.3d at 695, 700. We explained
that a plaintiff seeking to establish a Title IX sexual harassment claim must show, among
other things, that “the harassment was sufficiently severe or pervasive to create a hostile
(or abusive) environment in an educational program or activity.” Id. at 695. This
formulation differs slightly from the language that the Supreme Court used to articulate the
same requirement in Davis—i.e., “a plaintiff must establish sexual harassment . . . that is
so severe, pervasive, and objectively offensive[] . . . that [they are] effectively denied equal
access to an institution’s resources and opportunities.” Davis, 526 U.S. 651 (emphasis
added). Because Davis, like this case and unlike Jennings, involved student-on-student
harassment, we have modified the Jennings test to more precisely track Davis for purposes
of this case. Compare Jennings, 482 F.3d at 691, with Davis, 526 U.S. at 632–33.
9
B.
Although the Fourth Circuit has not explicitly ruled on this issue, our en banc
decision in Jennings v. University of North Carolina compels us to agree with Doe’s
position—which, as explained below, is consistent with relevant Supreme Court precedent
and that of our sister circuits. 7
In Jennings, a former student and soccer player at the University of North Carolina
at Chapel Hill brought a Title IX claim against the university, alleging that the school had
“allow[ed] . . . the women’s soccer coach[] to subject her to severe and pervasive sexual
harassment.” 482 F.3d at 694. She met with a high-ranking university official responsible
for dealing with Title IX grievances during her freshman year and lodged a complaint
against the coach, describing multiple instances of sexual harassment and the hostile and
abusive environment in the women’s soccer program. See id. at 693–94, 700. The official,
however, “dismissed these concerns and suggested that [the plaintiff] simply ‘work it out’
with [the coach].” Id. at 694. Accordingly, the university took no action on the plaintiff’s
complaint. See id. at 700.
We held in Jennings that the fact that the plaintiff filed a complaint alleging sexual
harassment with an official with authority to address the alleged harassment and to institute
corrective measures was “sufficient to establish that” the plaintiff had given that official—
7
Although Jennings involved harassment by a coach, rather than by a fellow student, that
distinction is irrelevant to the actual-notice inquiry. As Davis makes clear, the actual-notice
requirement adopted in Gebser—which dealt with teacher-on-student harassment—is
equally applicable in Title IX cases involving student-on-student harassment. See Davis,
526 U.S. at 642–43, 647, 650.
10
“and[,] by extension,” the university—“actual notice of the hostile environment created by
[the soccer coach].” Id. at 700–01; see also id. at 701 (noting as to the plaintiff’s § 1983
supervisory liability claim against the same university official that “[her] evidence would
allow a jury to find that [the official] had actual knowledge of [the coach’s] misconduct”).
Importantly, nothing in our discussion of actual notice indicated that the analysis turned on
whether the university official subjectively understood that the plaintiff was making an
allegation of sexual harassment or that the alleged harassment was actually occurring.
Rather, we concluded that by alleging facts that objectively amounted to sexual
harassment, the plaintiff put the university on actual notice of the alleged harassment. See
id. at 700–01.
In arguing that allegations of harassment alone cannot establish actual notice, the
School Board repeatedly cites our decision in Baynard v. Malone, 268 F.3d 228 (4th Cir.
2001). But its reliance on Baynard is misplaced for two reasons. First, Baynard held that
even where a school was informed of allegations that one of its teachers had a history of
sexually abusing his students in the past, such that the school was aware of allegations
supporting a general, “substantial risk” of—or “the potential” for—ongoing or future
misconduct by that teacher, an awareness of such possibilities did not constitute actual
notice of the teacher’s current abuse for Title IX purposes. 268 F.3d at 237–38. Rather, to
establish such notice, the plaintiff had to show that the school was aware of an allegation
that the teacher was currently abusing a student—although the school did not need to know
the identity of the student allegedly being abused. See id. 237–38 & n.9. Thus, nothing in
Baynard suggested that a report alleging a specific act or instance of sexual harassment
11
suffered by the plaintiff would be insufficient to establish actual notice. Moreover,
regardless of what we held in Baynard, our subsequent en banc decision in Jennings is the
controlling law.
Therefore, in keeping with our decision in Jennings, we hold that when a school
official with authority to address complaints of sexual harassment and to institute
corrective measures receives a report that can objectively be construed as alleging sexual
harassment, that receipt establishes actual notice of such harassment for Title IX purposes.
Our understanding of the actual-notice standard is consistent with applicable
Supreme Court precedent. The actual-notice requirement originates from the Supreme
Court’s decision in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 285
(1998). There, the Court rejected the plaintiff’s argument that an educational institution
could be liable under Title IX via respondeat superior or constructive notice. Id. Instead,
“to avoid diverting education funding from beneficial uses where a recipient was unaware
of discrimination in its programs,” the Supreme Court held that “a damages remedy will
not lie under Title IX” unless the defendant school or school district had “actual notice” or
“actual knowledge” of the alleged misconduct. Id. at 288–90.
The Gebser decision buttresses our holding today. First, we deem it significant that
Gebser used the terms “actual notice” and “actual knowledge” interchangeably. See
generally id. “Knowledge” is a broad and somewhat ambiguous term. For instance,
“knowledge” can mean merely “[a]n awareness . . . of a fact or circumstance” or the
“condition of having information” about something, but it can also denote “a state of mind
in which a person has no substantial doubt about the existence of a fact.” Knowledge,
12
Black’s Law Dictionary (11th ed. 2019); Knowledge, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/knowledge. In other words, the word
“knowledge” may describe either an objective condition of having information about
something or a subjective condition of understanding or believing in the existence of that
thing. In contrast, “notice” has a more specific definition that describes the objective
“condition of being warned or notified” of, or having “received information about,” a fact
or circumstance. Notice, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/notice; Notice, Black’s Law Dictionary.
Given that “knowledge” has several meanings, one of which denotes “notice,” the
Supreme Court’s interchangeable use of those two words in Gebser suggests that the more
specific term, “notice,” is what the Court really meant. Thus, the Gebser Court seems to
have used both “actual knowledge” and “actual notice” to mean information or notification
regarding a fact or condition “given directly to, or received personally by, a party.” Actual
Notice, Black’s Law Dictionary.
This reading is reinforced by the Supreme Court’s explanation in Gebser that to be
liable under Title IX, an appropriate school official must be “advised of” the alleged
misconduct. Gebser, 524 U.S. at 290 (emphasis added). To be “advised” of something
means to be “inform[ed]” or “give[n] information or notice” about it. Advise, Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/advise (emphasis
added). Thus, Gebser indicates that a school has actual notice or knowledge when it is
informed or notified of the alleged harassment—most likely via a report.
13
The Supreme Court’s application of the actual-notice standard to the facts in Gebser
confirms this understanding. The Court held that the defendant school district lacked actual
notice because a complaint from parents of students other than the plaintiff regarding a
teacher’s inappropriate comments during class “was plainly insufficient to alert the
principal to the possibility that [the teacher] was involved in a sexual relationship with [the
plaintiff].” Gebser, 524 U.S. at 291 (emphasis added). If actual notice means being
“alerted” to the “possibility” of sexual harassment occurring, a report alleging such
harassment surely is sufficient to establish it.
The Supreme Court’s subsequent decision in Davis v. Monroe County Board of
Education further bolsters this conclusion. There, the Court addressed for the first time a
Title IX claim involving student-on-student harassment. See 526 U.S. 629 (1999).
Importantly, in discussing the deliberate-indifference requirement for Title IX claims, the
Court asked “whether [the] petitioner can show that the Board’s response to reports of [the
harasser’s] misconduct was clearly unreasonable.” Id. at 649 (emphasis added).
Ultimately, the Court reversed the dismissal of the plaintiff’s complaint, finding that she
“may be able to show both actual knowledge and deliberate indifference” based on the
school board’s failure to adequately respond to repeated “complaints” and “allegations” of
misconduct. Id. at 649, 653–54. Thus, the Supreme Court again indicated that complaints,
allegations, or reports of gender-motivated harassment (including sexual harassment) are
sufficient to show actual notice for Title IX purposes. See also Jackson v. Birmingham Bd.
of Educ., 544 U.S. 167, 180 (2005) (explaining that a school board acting indifferently to
a complaint alleging sexual harassment “would likely be liable for a Title IX violation”);
14
id. at 181 (“Title IX’s enforcement scheme . . . depends on individual reporting because
individuals and agencies may not bring suit under the statute unless the recipient has
received ‘actual notice’ of the discrimination.”).
Our understanding of actual notice comports with the nearly unanimous view of our
sister circuits. The Seventh Circuit has held that “[t]o have actual knowledge of an incident,
school officials must have witnessed it or received a report of it.” Doe v. Galster, 768 F.3d
611, 614 (7th Cir. 2014) (emphasis added). Likewise, nearly all other courts of appeals
have found actual notice established where the plaintiff or another interested person
reported the alleged sexual harassment to a school official with authority to address the
alleged harassment and to institute corrective measures. See, e.g., I.F. v. Lewisville Indep.
Sch. Dist., 915 F.3d 360, 372 (5th Cir. 2019); Papelino v. Albany Coll. of Pharmacy of
Union Univ., 633 F.3d 81, 89–90 (2d Cir. 2011); Santiago v. Puerto Rico, 655 F.3d 61, 74
(1st Cir. 2011); Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1255 (11th Cir. 2010);
Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006); Warren ex rel. Good v.
Reading Sch. Dist., 278 F.3d 163, 173 (3d Cir. 2002); Vance v. Spencer Cnty. Pub. Sch.
Dist., 231 F.3d 253, 259 (6th Cir. 2000); Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1247
(10th Cir. 1999); see also Escue v. N. Okla. Coll., 450 F.3d 1146, 1154 (10th Cir. 2006)
(“[T]he actual notice standard does not set the bar so high that a school district is not put
on notice until it receives a clearly credible report of sexual abuse from the plaintiff-
student.” (citation omitted)). But see Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 780, 782
(8th Cir. 2001) (suggesting that actual knowledge requires conclusive evidence of
misconduct).
15
As a final note, common sense and public policy considerations further counsel us
to hold that a school’s receipt of a report or complaint alleging sexual harassment is
sufficient to satisfy the actual-notice requirement. As Doe and the amici civil rights groups
correctly point out, “[a]ny other rule would lead to absurd results.” Opening Br. at 32; see
also Amicus Br. of Nat’l Women’s L. Ctr. at 23–33. If, as the School Board and the amici
school board associations claim, actual notice required that an appropriate school official
subjectively understood the plaintiff’s complaint as one alleging sexual harassment,
schools involved in Title IX lawsuits could avoid liability simply by arguing that they did
not know that the report described sexual harassment. Such a rule would undermine
Congress’s goal of protecting students from sex discrimination in education, as it would
create “perverse incentives” for schools to refrain from training their staff to better identify
instances of sexual harassment as well as from investigating reports of harassment—in
order to avoid ever acquiring actual notice. Amicus Br. of Nat’l Women’s L. Ctr. at 28–
29. Furthermore, “[t]he consequences of [a subjective actual-notice standard] are especially
concerning as applied to children, who cannot be expected to articulate the sexual abuse
and harassment they suffer in the same words as adults.” Id. at 25.
To the extent that the School Board suggests that actual notice means a school
official’s subjective knowledge or conclusion that the alleged sexual harassment actually
occurred, such a standard would be even more nonsensical. Under Title IX, a school’s
actual notice of the alleged sexual harassment is what triggers its duty to investigate. See
Davis, 526 U.S. at 649–50. It would be illogical to require a school to investigate a
complaint alleging sexual harassment only if it has already determined that such
16
harassment did in fact occur. See Amicus Br. of Nat’l Women’s L. Ctr. at 23–25. As Doe
correctly notes, a school’s determination as to whether the alleged harassment actually
occurred is relevant only to the deliberate-indifference prong, not the actual-notice
requirement.
Nor would it make sense to require a student alleging sexual harassment to bear the
burden of substantiating their claim with adequate evidence at the time of their initial
report, before the school undertakes an investigation. The School Board and the amici
school board associations contend that allowing a student’s unsubstantiated complaint to
establish actual notice would mean that schools would be “liabl[e] based on mere gossip
or rumor.” Response Br. at 40 (emphasis added); see also Amicus Br. of Sch. Bd. Ass’ns
at 4. This argument is meritless for two reasons. First, it is a straw man. Doe has never
argued that a school acquires actual notice whenever a faculty member simply overhears
gossip or a rumor concerning sexual harassment. Rather, she asserts that a school has actual
notice when it receives a report or complaint directly alleging sexual harassment. But more
importantly, the School Board’s concern is unfounded. Title IX liability requires not only
actual notice but also proof of deliberate indifference, which is a high bar. If a school
becomes aware of an unsubstantiated allegation of sexual harassment, duly investigates it,
and reasonably dismisses it for lack of evidence, the school would not be liable since it did
not act with deliberate indifference.
For the foregoing reasons, we hold that a school’s receipt of a report or complaint
alleging sexual harassment is sufficient to establish actual notice under Title IX. This is an
objective inquiry which asks whether an appropriate official in fact received such a report
17
or complaint and whether a reasonable official would construe it as alleging misconduct
prohibited by Title IX. Having established the appropriate standard, we now proceed to
analyze Doe’s claim.
C.
Doe argues that the district court erred in denying her motion for a new trial because
no evidence in the record supports the jury’s verdict that the School Board lacked actual
notice of the sexual assault allegations. We agree.
Under Federal Rule of Civil Procedure 59(a), a “court may, on motion, grant a new
trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P.
59(a)(1)(A). Despite the permissive language of this Rule, we have interpreted it to require
district courts to “set aside the verdict and grant a new trial” where “(1) the verdict is
against the clear weight of the evidence, or (2) is based upon evidence which is false, or
(3) will result in a miscarriage of justice, even though there may be substantial evidence
which would prevent the direction of a verdict.” Minter v. Wells Fargo Bank, N.A., 762
F.3d 339, 346 (4th Cir. 2014) (quoting Knussman v. Maryland, 272 F.3d 625, 639 (4th Cir.
2001)); see also Atlas Food Sys. & Servs., Inc. v. Crane Nat. Vendors, Inc., 99 F.3d 587,
594 (4th Cir. 1996) (labeling this the “duty” of the district court (quoting Aetna Casualty
& Sur. Co. v. Yeatts, 122 F.2d 350, 352–53 (4th Cir. 1941), overruled on other grounds by
Gasperini v. Ctr. for Human., Inc., 518 U.S. 415 (1996))).
Doe asserts that the jury’s finding on actual notice was against the clear weight of
the evidence and therefore that the district court should have granted her a new trial. As a
18
general matter, this Court reviews a district court’s denial of a motion for a new trial for
abuse of discretion. See Minter, 762 F.3d at 346. But where, as here, a party did not move
for judgment as a matter of law before moving for a new trial, this Court’s “scope of review
is exceedingly confined, being limited to whether there was any evidence to support the
jury’s verdict, irrespective of its sufficiency.” Id. at 348 (quoting Bristol Steel & Iron Works
v. Bethlehem Steel Corp., 41 F.3d 182, 187 (4th Cir. 1994)). In other words, we must affirm
the district court’s denial of Doe’s motion for a new trial unless “there was an absolute
absence of evidence to support” the jury’s finding that the School Board lacked actual
notice. Id. (quoting Bristol Steel, 41 F.3d at 187).
While we acknowledge that the applicable standard of review is an extremely
stringent one, our review of the trial record leaves no doubt that under the correct actual-
notice standard, the jury’s finding wholly lacks evidentiary support. The record brims with
unrebutted evidence demonstrating that the School Board, through appropriate officials,
received multiple reports that objectively provided notice of an allegation that Doe had
been sexually assaulted by Smith. To summarize just some of this uncontradicted evidence:
• On March 13, 2017, Doe wrote a statement at Assistant Principal Hogan’s
request. In that statement—which was later published to the jury at trial—Doe
described that Smith “started rubbing [her] legs” and then “proceeded to move
[her] hands close to his genitals and then pulled down his pants.” J.A. 2515. Doe
“moved [her] hand away but he moved [her] hand back onto his genitals.” Id.She wrote: “I was so shocked and scared that I did not know what to say or do.”
Id. Smith “then started to move his hands towards [her] and [Doe] tried to block
him but he still put his hands up [her] shirt and down [her] pants.” Id.• At trial, Hogan testified that during the March 13 meeting, Doe stated that she
did not think the sexual contact with Smith was consensual—which was also
documented in Hogan’s own notes from that meeting. During her testimony,
Hogan admitted that this statement indicated “a lack of consent.” J.A. 1208.
19
• Shortly after her meeting with Doe, Assistant Principal Hogan met with Doe’s
mother. Both Hogan and Doe’s mother testified at trial that during their meeting,
Doe’s mother stated explicitly that Smith’s touching of Doe was nonconsensual
and that the incident was “a sexual assault.” J.A. 1298–99, 1613.
• School officials also received reports from other members of the school
community explicitly alleging that Smith had sexually harassed Doe—including
an email from a band student, a written statement from another band student,
and an email from a concerned parent of an Oakton alumnus. For example, one
bandmate of Doe and Smith sent an email titled “Need to Report Peer Pressure
and Sexual Harassment” to an Oakton counselor, who then forwarded the email
to Assistant Principals Hogan and Taylor. J.A. 2523–24. The email alleged that
Smith pressured Doe into nonconsensual sexual activity.
If these facts do not show that the School Board had actual notice, we don’t know
what would. Doe clearly conveyed that Smith’s touching was unwelcome and
nonconsensual, and that she was “shocked and scared.” J.A. 2515. And reports from other
concerned individuals, including Doe’s mother, explicitly described the bus incident as
“sexual assault” or “sexual harassment.” J.A. 1298–99, 1613, 2523–24. There can simply
be no debate that a reasonable official would understand explicit reports of a “sexual
assault” or “sexual harassment” as, well, reports of sexual harassment. 8
8
Indeed, while officials’ subjective understanding that an allegation involves sexual
harassment is not required, here, it is clear that Hogan actually understood the reports she
received as alleging “sexual assault”—providing further proof that a reasonable official
would certainly have understood Doe to be alleging sexual harassment. At trial, Hogan
admitted that within a few days of the bus incident, she was aware of a “possible” sexual
assault. J.A. 1186–87. And according to her testimony, Hogan understood, at the time of
her interview with Doe, that if Doe were to press charges, it would be for “[s]exual
harassment.” J.A. 1213. Hogan also testified that she and Principal Banbury “talked about”
whether they “could call [the incident] a sexual assault” based on “the evidence that [they]
had.” J.A. 1291. Finally, when Doe’s mother asserted that Smith’s nonconsensual touching
was “a sexual assault,” Hogan responded that she and the other school administrators “did
not come to that same conclusion, that it was a sexual assault.” J.A. 1299. All of this
20
In sum, our review of the record compels us to conclude that no evidence supports
the jury’s finding that the School Board lacked actual notice of the alleged sexual
harassment. To the contrary, the record contains extensive evidence confirming that the
School Board, through appropriate officials including Assistant Principal Hogan, received
multiple reports alleging Smith’s sexual assault of Doe. 9 Therefore, Doe is entitled to a
new trial under Rule 59 unless we find alternative grounds for affirming the judgment
below.
III.
The School Board offers two such grounds, both of which it presented to the district
court in its unsuccessful motion for judgment as a matter of law. Specifically, the School
Board argues that we should affirm the denial of Doe’s motion for a new trial because no
reasonable jury could find that (1) the School Board acted with deliberate indifference; or
(2) the sexual harassment Doe suffered was so severe, pervasive, and objectively offensive
that it deprived her of equal access to the educational opportunities or benefits provided by
her school.
We review de novo the district court’s denial of the School Board’s motion for
judgment as a matter of law. Baynard, 268 F.3d at 234. In doing so, we “must view the
evidence indicates that the School Board was both objectively and subjectively aware that
there was an allegation of a sexual assault.
9
We emphasize that we do not impugn the seriousness with which the jury approached this
case, and our opinion should not be read as a criticism of the jury. Rather, the jury very
likely reached a conclusion devoid of support in the record because it was not properly
instructed on the correct legal standard for actual notice.
21
evidence in the light most favorable to [Doe], the nonmovant, and draw all reasonable
inferences in [her] favor without weighing the evidence or assessing the witnesses’
credibility.” Id. at 234–35. Ultimately, we must reject the School Board’s arguments unless
no reasonable jury could rule in Doe’s favor on one or both of the two issues raised—
deliberate indifference and deprivation of access to educational opportunities or benefits. 10
Id.10
The School Board did not cross-appeal from the district court’s denial of its motion for
judgment as a matter of law—which makes sense, as it prevailed before the jury. Because
the School Board does not seek to modify the district court’s judgment, it may rely on “any
matter appearing in the record in support of the judgment” without filing a cross-appeal.
Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982). But because the School Board did not cross-
appeal, we are not directly reviewing the district court’s denial of judgment as a matter of
law.
Nevertheless, we deem it appropriate to evaluate the School Board’s alternative arguments
as if the School Board were appealing from that denial. Generally, a party can challenge
the jury’s verdict in one of two ways—“[t]he party may assert that the proceeding was in
some fashion so tainted with error that the party should be given a new trial, or it may assert
that its opponent’s evidence failed to create an issue on which reasonable persons could
differ, and that as a matter of law the dissatisfied party should be awarded judgment as a
matter of law.” 20 Charles Alan Wright & Mary Kay Kane, FED. PRAC. & PROC.
DESKBOOK § 101 (2d ed.).
Here, we are faced with a unique posture, in which the School Board—despite having
prevailed at trial—challenges two specific findings of the jury in its opposition to Doe’s
appeal seeking a new trial. Given that the School Board is obviously not seeking a new
trial, its attack on the jury findings should be construed as a request for judgment as a
matter of law. See id. Indeed, the parties agree that we should apply the judgment-as-a-
matter-of-law standard here. Moreover, it would hardly be fair to affirm the judgment
below on an alternative ground—and effectively overturn a jury finding—unless no
reasonable jury could find for Doe on that issue.
22
As explained below, we conclude that a reasonable jury could find for Doe on both
issues. Therefore, neither of the two grounds offered by the School Board precludes us
from granting Doe a new trial.
A.
The School Board first argues that no reasonable jury could find that it acted with
deliberate indifference—a question that the jury below did not reach. Under Title IX, a
school acts with deliberate indifference where its “response to the [alleged] harassment or
[the] lack [of any such response] is clearly unreasonable in light of the known
circumstances.” Davis, 526 U.S. at 648. While deliberate indifference is a high standard
that requires more than a showing of mere negligence, see Baynard, 268 F.3d at 236, “half-
hearted investigation or remedial action will [not] suffice to shield a school from liability,”
S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 77 (4th Cir. 2016).
Here, various evidence in the record, when considered together in the light most
favorable to Doe, could persuade a reasonable jury to find that the School Board acted with
deliberate indifference. To summarize some of that evidence:
• Despite having received reports alleging that Doe experienced nonconsensual
sexual touching on the bus ride to Indianapolis, school officials, including
Assistant Principal Taylor, took no action to protect Doe or to offer emotional
support to her during the five-day trip. Nor did any school official ever reach out
to Doe, check in on her, or notify her parents about the alleged incident.
• Instead, school officials, including Principal Banbury, made inappropriate jokes
about the reported incident. For example, when Assistant Principal Taylor
emailed Banbury asking how many inches of snow Oakton was expected to get
in the coming days, Banbury responded, “How many inches under the blanket
or on the ground?” J.A. 2494; see also J.A. 994–95 (Banbury admitting during
trial that this comment was alluding to “Doe stroking [] Smith’s penis” under the
blanket and thus was “inappropriate”).
23
• Doe testified at trial that when she met with Assistant Principal Hogan and
Safety and Security Specialist Baranyk after the band trip, Baranyk tried to
dissuade her from taking any legal action, telling her that “there was really
nothing [she] could do” and that “the school wasn’t liable for anything.” J.A.
1745.
• Doe further testified that during the same meeting, Baranyk asked her a number
of accusatory questions, including what she was wearing and why she did not
scream during the bus incident. When Doe responded that she did not scream
because she “was on a bus with . . . 60 people that [she] had known for most of
[her] high school years” and did not want to be embarrassed, Baranyk asked her
in a sarcastic manner, “Oh, well, how do you feel now?” J.A. 1745–46. While
Baranyk was asking these questions, Hogan just “sat there for the most part.” Id.At trial, Doe testified that the school officials “made [her] feel like [she] was in
the wrong” and they did not believe her story. Id. at 1747–48. Doe also described
their demeanor and tone toward her as “angry” and “menacing.” Id.• Despite the multiple reports that Smith had sexually assaulted Doe, school
officials, including Assistant Principal Hogan, discussed with Doe, but not with
Smith, the possibility of being disciplined for engaging in sexual activity on a
school trip.
• Although Assistant Principal Hogan interviewed Doe, Smith, and two of their
bandmates who also went on the trip, she never spoke with other students who
were identified as potential sources of information about the bus incident and
Doe’s demeanor in the immediate aftermath of the incident.
• In concluding that there was insufficient evidence indicating Smith had sexually
assaulted Doe, Assistant Principal Hogan seemingly relied in large part on the
fact that at the time Smith began to touch Doe, her head was rested on his
shoulder and she was wearing his hat. During the trial, Hogan testified that she
believed “those things[,] . . . for an 18-year-old boy, [were] signs that [Doe was]
a willing participant.” J.A. 1286. Hogan’s testimony suggested that the assistant
principal either gave little weight to or did not really believe Doe’s vital
statement that she tried to block Smith from touching her and pulled her hand
away—presumably because Smith denied its truth. But notably, Smith
acknowledged at trial that he was not entirely truthful during his meeting with
Hogan, as he initially denied ever grabbing or touching Doe on the bus, only to
change his story and admit it later.
24
Based on this evidence, a reasonable jury could draw any number of conclusions
that would support a finding of deliberate indifference. For instance, a jury could
reasonably conclude that the school officials improperly trivialized and dismissed the
reports of sexual assault; that they simply assumed, without adequate investigation, that
the bus incident was a consensual sexual encounter between teenagers; that they neglected
to take even the minimal step of checking in on Doe to make sure she was okay; that they
tried to sweep the reports under the rug so as not to cause trouble for Smith, one of their
star students who went on to attend a prestigious public university; that they engaged in a
“blame-the-victim” mentality in investigating and dealing with the bus incident; or that
their decision to believe Smith’s story over Doe’s—even after Smith had initially lied to
them about whether he had touched Doe—was likely attributable to bias.
Accordingly, we conclude that, faced with the evidence described above, a
reasonable jury could find that the School Board’s response to the alleged sexual assault
was clearly unreasonable. 11 Even though the jury, after a new trial, could weigh all of the
evidence and find there to be no deliberate indifference, we believe affirming the denial of
a new trial on this alternative ground is unwarranted at this stage. Therefore, we reject the
School Board’s argument that the lack of deliberate indifference provides an alternative
ground for affirming the denial of Doe’s motion for a new trial.
11
We acknowledge that the record also contains evidence showing that the school provided
a number of accommodations requested by Doe and her parents in the months after the
alleged sexual assault. However, when the record as a whole is viewed in the light most
favorable to Doe, such accommodations do not provide us a sufficient basis for concluding
that no reasonable jury could find deliberate indifference here.
25
For his part, our dissenting colleague argues that as a matter of law, the School
Board cannot be found deliberately indifferent under Title IX because school officials
received notice of the alleged sexual harassment “only after the fact,” and “no school
conduct, or lack thereof, caused any [further or continued] sexual harassment” of Doe.
Dissenting Op. at 38 (emphasis removed). However, contrary to our dissenting colleague’s
assertion, Title IX liability based on student-on-student harassment is not necessarily
limited to cases where such harassment “occur[s] after [the school] receives notice” and is
“caused” by the school’s own post-notice conduct. Id.In Davis, the Supreme Court explained that an educational institution could be liable
under Title IX not only where its deliberate indifference “‘cause[s] [students] to undergo’
harassment,” but also where such indifference “make[s] them liable or vulnerable” to
harassment. Davis, 526 U.S. at 645 (second alteration in original). And under the latter
theory of liability, “other courts have found (or countenanced the possibility of finding)
Title IX liability, even though the plaintiff alleged only a single incident of pre-notice
harassment.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172 (1st Cir. 2007), rev’d
and remanded on other grounds, 555 U.S. 246 (2009); Williams v. Bd. of Regents of Univ.
Sys. of Ga., 477 F.3d 1282, 1295–97 (11th Cir. 2007). 12 Notably, the First Circuit has
12
Courts of appeals have actually divided on the issue of whether a single, isolated incident
of pre-notice harassment may be sufficient to trigger Title IX liability. The First and
Eleventh Circuits have indicated that such an incident, if serious enough, would be
sufficient. See Fitzgerald, 504 F.3d at 172–73 (1st Cir.); Williams, 477 F.3d at 1295–97
(11th Cir.). On the other hand, the Eighth, Ninth, and Tenth Circuits have held that post-
notice harassment is required to show a school’s deliberate indifference. See K.T. v. Culver-
26
emphasized that a single instance of pre-notice, student-on-student harassment could “form
a basis for Title IX liability if that incident were vile enough and the institution’s response,
after learning of it, unreasonable enough to have the combined systemic effect of denying
access to a scholastic program or activity.” Fitzgerald, 504 F.3d at 172–73.
We agree with the First and Eleventh Circuits that a school may be held liable under
Title IX based on a single, pre-notice incident of severe sexual harassment, where the
school’s deliberate indifference to that incident made the plaintiff more vulnerable to future
harassment, or otherwise had “the combined systemic effect of denying [equal] access to a
scholastic program or activity.” Id. This reading of Title IX is consistent with the plain
language of the statute, which reads: “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.” 20 U.S.C. § 1681(a). As the Supreme Court noted in Davis, “[t]he statute
makes clear that, whatever else it prohibits, students must not be denied access to
educational benefits and opportunities on the basis of gender.” Davis, 526 U.S. at 650(emphasis added).
Even a single incident of sexual harassment, if sufficiently severe, can inflict serious
lasting harms on the victim—physical, psychological, emotional, and social. And where
such harms deprive the victim of the ability to fully participate in or to benefit from the
Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017); Escue, 450 F.3d at 1156 (10th Cir.);
Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000).
27
educational opportunities provided by their school, and where this deprivation remains
unremedied or is compounded as a result of the school’s deliberate indifference, the victim
surely is “denied access to educational benefits and opportunities on the basis of gender”—
which Title IX clearly prohibits. Id. In such situations, the school’s inadequate response to
the alleged sexual harassment leaves the victim more vulnerable to further harassment.
Thus, we hold that a school may be held liable under Title IX if its response to a
single incident of severe sexual harassment, or the lack thereof, was clearly unreasonable
and thereby made the plaintiff more vulnerable to future harassment or further contributed
to the deprivation of the plaintiff’s access to educational opportunities. Because we
conclude that a reasonable jury could make such a finding in this case, we decline to affirm
the district court’s judgment based on a lack of deliberate indifference.
B.
The School Board also asserts that we should affirm the judgment below because,
as a matter of law, Doe was not deprived of equal access to the educational opportunities
or benefits provided by her school. Because the jury specifically found that the alleged
sexual assault occurred and that it caused such a deprivation for Doe, the School Board
asks us to conclude that the jury’s findings on those points were unreasonable. Again, we
reject the School Board’s argument as meritless.
First, the School Board misconstrues the law by claiming that its own response to
the alleged sexual harassment did not exclude Doe from any educational opportunities or
benefits. But the Supreme Court has explained that a Title IX plaintiff must establish
“sexual harassment . . . that is so severe, pervasive, and objectively offensive that it can be
28
said to deprive the [plaintiff] of access to the educational opportunities or benefits provided
by the school.” Id. at 650–51 (emphasis added). In other words, the main object of inquiry
for this prong is the alleged sexual harassment, rather than the defendant’s response thereto.
See id.; see also Jennings, 482 F.3d at 696–99. Indeed, the latter is relevant only to the
issue of deliberate indifference. Thus, to the extent that the School Board claims it did not
bar Doe’s access to educational opportunities, its argument is misguided.
But more importantly, we conclude that the record, viewed in the light most
favorable to Doe, could lead a reasonable jury to find in Doe’s favor on this issue. In
Jennings, we explained that a victim of sexual harassment may be deprived of access to
educational opportunities or benefits in at least three different ways: if the harassment (1)
“results in the physical exclusion of the victim from an educational program or activity”;
(2) “‘so undermines and detracts from the victim[’s] educational experience’ as to
‘effectively den[y her] equal access to an institution’s resources and opportunities’”; or (3)
“has ‘a concrete, negative effect on [the victim’s] ability’ to participate in an educational
program or activity.” Jennings, 482 F.3d at 699 (alterations in original) (quoting Davis,
526 U.S. at 650–51, 654). In assessing whether the alleged harassment caused such a
deprivation, the factfinder must consider all of the “surrounding circumstances” and use
“[c]ommon sense[] and an appropriate sensitivity to social context” to “identify objectively
hostile or abusive conduct.” Id. at 696 (first quoting Davis, 526 U.S. at 651; then quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)).
Here, Doe’s testimony and evidence, if credited, indicate that she was a victim of a
serious sexual assault, during which Smith—without Doe’s consent—touched her intimate
29
body parts under her clothes, digitally penetrated her vagina, and forced her to pleasure
him by stroking his penis. One can hardly dispute that such sexual violence, which would
constitute a criminal offense in most, if not all, jurisdictions, would have a severe and
traumatic impact on any high school student. 13 Indeed, in Jennings, we held that a jury
could reasonably find that the “verbal sexual abuse” allegedly suffered by the college-
student plaintiff “was sufficiently severe or pervasive to” deprive her of equal access to
educational opportunities or benefits. Id. at 698–99. While the damaging effects of verbal
sexual harassment may equal or even exceed those of physical sexual assault in certain
cases, we believe a reasonable jury could conclude that the sexual violence Doe allegedly
suffered was at least as severe, offensive, and harrowing as the verbal harassment
experienced by the plaintiff in Jennings. 14 See also Davis, 526 U.S. at 653–54 (holding that
the plaintiff sufficiently alleged actionable sexual harassment where her minor daughter
suffered “objectively offensive touching” that amounted to “criminal sexual misconduct”).
13
See 6A C.J.S. Assault § 73 (updated June 2021) (defining “criminal battery” as “harmful
or offensive touching”); 87 A.L.R.3d 1250 (originally published in 1978) (defining the
offense of “sexual battery”); see also Rape, Fed. Bureau of Investigation,
https://ucr.fbi.gov/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/violent-crime/rape
(defining rape as the “[p]enetration, no matter how slight, of the vagina or anus with any
body part or object, or oral penetration by a sex organ of another person, without the
consent of the victim”).
14
Generally speaking, while federal and state laws criminalize physical sexual assault, they
prescribe only civil remedies for verbal sexual harassment. See Overview of Rape and
Sexual Violence, Nat’l Inst. Just., U.S. Dep’t of Just. (Oct. 25, 2010),
https://nij.ojp.gov/topics/articles/overview-rape-and-sexual-violence; Sexual Harassment,
Rape, Abuse & Incest Nat’l Network, https://www.rainn.org/articles/sexual-harassment.
30
Moreover, the record includes significant evidence supporting a finding that the
alleged sexual assault had a concrete, negative effect on Doe’s ability to participate in the
educational opportunities or benefits provided by her school. For example, the record
contains evidence from which a reasonable jury could conclude that:
• Doe’s academic performance and class attendance declined after the band trip.
During her sophomore year (i.e., before the alleged assault), Doe was absent three
times and never tardy. But in her junior year, she was absent seventeen times and
tardy four times. And whereas Doe received five A or A-’s and one B on her final
exams in her sophomore year, she received three A or A-’s, a B, a B-, a C, and a D+
on her final exams in her junior year.
• After the band trip, Doe felt so terrified of Smith that she altered her behavior in
school and limited her participation in band activities to avoid him. At trial, Doe
testified that after the alleged assault, she “was so uncomfortable being around . . .
Smith that [she] had to sit out of band class” until the band director rearranged the
seating to keep Doe and Smith as far apart as possible. J.A. 1755. During that time,
she sat alone in a small, windowless practice room away from her bandmates, which
made her feel “isolated” and “very alone.” Id. Doe also missed the band’s end-of-
year concert because she did not want to see Smith. Doe testified that while band
had long been an important part of her life, she found it difficult to enjoy and fully
participate in band activities after the alleged assault—even in her senior year, after
Smith had graduated.
• As a result of the alleged sexual assault, Doe suffered psychological and emotional
trauma that interfered with her daily functioning. She experienced increased feelings
of anxiety and anger, nightmares, flashbacks, intrusive thoughts about the assault
and the meetings with school administrators, and difficulty eating, sleeping, and
concentrating. Doe sought and received professional counseling for several weeks
both in her junior and senior years in an effort to cope with the trauma caused by
the alleged assault. She was diagnosed with adjustment disorder with anxiety.
Based on these and other concrete, negative effects supported by the record, a jury
could reasonably find that the alleged sexual assault was severe enough to deprive Doe of
31
equal access to educational opportunities or benefits. 15 Indeed, we held the same in
Jennings where the plaintiff—just like Doe—presented evidence showing that the alleged
harassment made her “feel humiliated, anxious, and uncomfortable,” “caused her to suffer
severe emotional distress,” and thereby “had a negative impact on her participation . . . in
[school programs] and on her academic performance.” Jennings, 482 F.3d at 699–700. We
see no reason to treat this case differently. Therefore, we reject the School Board’s
invitation to affirm the judgment below on this ground.
IV.
Because no evidence in the record supports the jury’s finding that the School Board
lacked actual notice or knowledge of the alleged sexual harassment, and because we find
no alternative grounds for affirming the judgment below, we conclude that Doe is entitled
to a new trial. 16 Accordingly, we reverse the district court’s denial of her Rule 59 motion
and remand for a new trial consistent with the legal standard set forth in this opinion.
15
We respectfully disagree with our dissenting colleague’s assertion that the sexual assault
Doe allegedly suffered was not sufficiently severe to be actionable under Title IX because
it was “an isolated, one-time incident.” Dissenting Op. at 34. Although a single, isolated
incident generally does not provide a basis for Title IX liability, we have recognized that
such an incident may be sufficient if it is “extremely serious.” Jennings, 482 F.3d at 696(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see also Fitzgerald,
504 F.3d at 172–73 (noting that a single instance of sexual harassment could “form a basis
for Title IX liability if that incident were vile enough”). Here, we believe a jury could
reasonably conclude that the sexual assault allegedly suffered by Doe as a high school
student (including digital penetration of her vagina) and the lasting trauma caused by that
incident were serious enough to trigger Title IX liability.
16
Curiously, the dissent claims that “[t]he majority opinion . . . vacates the jury’s verdict
[in part] because it concludes that the school . . . refused to discipline the offending
32
REVERSED AND REMANDED
student.” Dissenting Op. at 34. Our good colleague is mistaken. Nothing in our analysis
rests on the fact that the school officials decided not to discipline Smith.
Nor does our decision “improperly substitute the majority’s finding for the jury’s,” as the
dissent asserts. Id. Rather, we merely vacate the jury’s finding on actual notice because it
was based on an incorrect legal standard for evaluating whether such notice existed, and
because we conclude that no evidence in the record supports the jury’s finding under the
correct standard. See supra note 9. Indeed, the dissent too acknowledges that “whether the
school received notice of the [bus] incident . . . could hardly have been in dispute,” as it
was “actually told of the incident.” Dissenting Op. at 35.
33
NIEMEYER, Circuit Judge, dissenting:
The jury in this case returned a verdict in favor of the School Board, finding that it
was not liable under Title IX for a single incident of student-on-student sexual harassment.
The majority opinion nonetheless vacates the jury’s verdict because it concludes that the
school received notice of the incident after the fact and refused to discipline the offending
student. Not only does this conclusion improperly substitute the majority’s finding for the
jury’s, it does so based on a fundamental misunderstanding of the school’s liability under
Title IX.
I
During a band trip to perform at a music festival, a male student of Oakton High
School in Vienna, Virginia, engaged in sexual touching of a fellow female student while
the two were sitting together on a bus. The female student told school officials that the
touching was not consensual. After the school was notified of the incident and conducted
an investigation, receiving somewhat conflicting accounts, it concluded that a “sexual
assault” had not occurred and imposed no discipline.
The incident occurred while the two students were sitting together on a bus covered
by a blanket, and no school official or chaperone knew at the time that it was taking place.
It was an isolated, one-time incident, and no evidence forecasted repetition. Indeed, there
was no suggestion at trial that any other such incident took place thereafter, whether by the
same male student or by another of the female student’s peers. In other words, the
34
harassment was not systemic. Moreover, there was no evidence that the school caused
either the incident or any other sexual harassment.
The female student filed suit against the Fairfax County School Board, alleging that
the school violated Title IX because it acted with deliberate indifference to the report of
her sexual assault and therefore was liable to her for damages. The jury found that the
male student had, indeed, sexually harassed the female student and that the incident was
sufficiently severe to deprive her of equal access to the educational opportunities or
benefits provided by the school. But the jury returned a verdict in the School Board’s
favor, finding that the School Board did not have sufficient knowledge of the sexual
harassment to give rise to liability.
The majority opinion focuses almost entirely on whether the school received notice
of the incident — a fact that could hardly have been in dispute. The school was actually
told of the incident and conducted an investigation. The majority opinion then
ceremoniously concludes that the School Board had actual knowledge of the incident, and
because the jury had found that the school did not receive knowledge sufficient for liability,
the majority opinion vacates the jury verdict and orders a new trial. While the majority
opinion goes to great lengths to show that the School Board received notice of the incident
and therefore had actual knowledge of it, it barely addresses whether such notice created
liability under Title IX.
I conclude that the receipt of after-the-fact notice does not impose liability on the
School Board in the circumstances of this case. While, unremarkably, I agree with the
majority that the school received notice of the incident, the knowledge that was acquired
35
did not make the School Board liable under Title IX. To have liability, the school had to
receive knowledge of conduct such that the school’s indifference to the known conduct
actually caused the harassment that denied the student the benefits of the educational
programs or activities of the school. In short, as explained in detail by the Supreme Court,
liability can be imposed on the school only where it is shown that the school’s own conduct
“caused the [sex] discrimination.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643
(1999) (emphasis added) (cleaned up). This requirement is foundational, as a school is
liable under Title IX only when the school’s own deliberate conduct amounts to or causes
sex discrimination.
II
Title IX provides, “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.” 20 U.S.C.
§ 1681(a). Although the provision does not mention any private right of action against a
school when such discrimination occurs, the Supreme Court has found an implied private
right of action in the statute that permits students to sue educational institutions for
damages. See Cannon v. Univ. of Chi., 441 U.S. 677, 688–89 (1979). But the Court
carefully cabined that cause of action in subsequent decisions, rejecting any notion that
schools face strict liability under Title IX or can be imputed with liability under the
principles of agency or constructive notice. See Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 285 (1998). In Gebser, the Court held that only the school’s own conduct
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can justify liability and that such conduct can be shown only where a school has “actual
knowledge” (i.e., “notice”) of the harassment in circumstances where it has an opportunity
to rectify it and its deliberate indifference to the knowledge causes harassment by failing
to end or prevent it. Id. at 289–90. As the Court stated, the school must have “actual
knowledge of the [sexual] conduct” and also “have an opportunity to take action to end the
harassment or to limit further harassment.” Id. at 289. In short, its deliberate indifference
must be “the cause of the violation.” Id. at 291 (emphasis added).
In Davis v. Monroe County Board of Education, the Supreme Court again
considered a school’s Title IX liability — this time in the context of student-on-student
harassment — and reemphasized the kind of notice that imposes liability on a school. After
reaffirming that Title IX did not permit imputed liability based on agency principles or
constructive notice, the Court made clear that only the independent conduct of the school
causing harassment could result in the school’s liability. It explained, “recipients [of
federal funds] could be liable in damages only where their own deliberate indifference
effectively caused the discrimination.” Davis, 526 U.S. at 642–43 (emphasis added)
(cleaned up). And it repeated the proposition more fully, giving emphasis to it:
If a funding recipient does not engage in harassment directly, it may not be
liable for damages unless its deliberate indifference subjects its students to
harassment. That is, the deliberate indifference must, at a minimum, cause
students to undergo harassment or make them liable or vulnerable to it.
Id. at 644–45 (cleaned up).
As a consequence of its holdings in both Gebser and Davis, the Davis Court
observed:
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Although, in theory, a single instance of sufficiently severe one-on-one peer
harassment could be said to have [a systemic] effect, we think it unlikely that
Congress would have thought such behavior sufficient to rise to this level in
light of the inevitability of student misconduct and the amount of litigation
that would be invited by entertaining claims of official indifference to a
single instance of one-on-one peer harassment.
Davis, 526 U.S. at 652–53. For a school that does not directly discriminate, harassment
must occur after it receives notice — making it something that the school can prevent. And
“[b]y limiting private damages actions to cases having a systemic effect on educational
programs or activities,” the Court “reconcile[d] the general principle that Title IX prohibits
official indifference to known peer sexual harassment with the practical realities of
responding to student behavior.” Id. at 653 (emphasis added).
The Davis Court contrasted its doubt about a single act of one-on-one peer
harassment — which would not have a systemic effect — with the facts before it. There,
a student was “the victim of repeated acts of sexual harassment by [a peer] over a 5-month
period,” during which, the facts could show, the school had knowledge of the conduct
but “made no effort whatsoever . . . to put an end to the harassment.” Davis, 526 U.S. at653–54. This case does not fit that mold. The incident here was a one-time act of sexual
misconduct by a male student, and the school learned of the incident only after the fact,
with no opportunity to prevent it. Moreover, there was no suggestion that the harassment
continued and therefore no suggestion that the school had failed to prevent any continuing
or additional harassment. In short, no school conduct, or lack thereof, caused any sexual
harassment, as is required for the school’s liability under Title IX.
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The jury in this case found that the school did not have sufficient notice as required
for liability under Title IX, and this is well supported by the record. While the school did
receive after-the-fact notice of a single incident, it did not have the type of notice required
by Title IX, i.e., notice that provided the school with an “opportunity” to correct the
situation. See Kollaritsch v. Mich. State Univ. Bd. of Trustees, 944 F.3d 613, 622 (6th Cir.
2019), cert. denied, 141 S. Ct. 554 (2020) (noting that the “critical point” for a school’s
liability under Title IX is “that the [school’s] response must bring about or fail to protect
against the further harassment”); see also K.T. v. Culver-Stockton Coll., 865 F.3d 1054,
1058–59 (8th Cir. 2017); Escue v. N. Okla. Coll., 450 F.3d 1146, 1155–56 (10th Cir. 2006);
Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000).
Thus, I would affirm.
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