Recently, I wrote about a report to the Senate by a task force of college presidents, on how the Education Department is illegally dumping an avalanche of new rules and regulations on America’s schools, without even complying with the Administrative Procedure Act’s notice-and-comment requirements.
Yet another example of such mischief is the 2014 sexual harassment guidance issued by the Education Department’s Office for Civil Rights. That guidance radically expanded liability for harassment under Title IX from OCR’s past 1997 and 2001 harassment guidance, and deviated sharply from principles of harassment liability developed by the courts. And it imposed new obligations on colleges without any notice or opportunity to comment.
(The Administrative Procedure Act requires notice and comment before an agency imposes new obligations on regulated entities. In addition, the D.C. Circuit Court of Appeals’ Paralyzed Veterans decision also requires notice and comment for changes to many interpretive rules. The Education Department ignores these requirements.)
OCR’s 2014 harassment guidance generally imposes liability on institutions even if they correctly discipline those who engage in sexual harassment or sexual assault, if they do not also “prevent its recurrence” and “remedy its effects,” and it warns that even punishing the harasser “likely will not be sufficient” to comply with Title IX. See Office for Civil Rights, “Questions and Answers on Title IX and Sexual Violence“ (April 29, 2014), at pg. 25 (“imposing sanctions against the perpetrator, without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence as required by Title IX,” since the school must not just “end the sexual violence,” but also “eliminate the hostile environment, and prevent its recurrence”), and at pg. 1, Question A-2 (institution must “eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects”).
Such “remedies,” seemingly required of blameless and guilty schools alike, may include “monetary relief” and counseling for victims, even though the Supreme Court’s Davis decision says that money damages cannot be imposed on schools under Title IX unless they cause a sexually hostile environment through their “deliberate indifference” to misconduct of which they have “actual notice,” and that schools are not liable for sexual harassment their own actions did not cause. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). For example, Tufts recently agreed to provide “monetary compensation“ for a complainant to resolve a Title IX investigation: “Tufts signed an agreement with the government earlier this month, pledging to take a long list of steps in improving their policies, as well as providing monetary compensation to the student.”
By contrast, OCR’s 1997 guidance, modeled on federal workplace harassment precedent, required negligence by an institution for liability in cases of peer harassment, and a college or school district thus was not liable merely because harassment persisted despite reasonable attempts to stop it. The mere existence of harassment by students was not enough for liability under Title IX. More was required. The school’s own actions in response to the harassment had to be culpable. As the Education Department admitted in its 1997 “Sexual Harassment Guidance,” “Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.” (62 Fed. Reg. 12034 (1997).) Under this negligence standard, if an institution took action “reasonably calculated” to deter further harassment, it was not liable even if harassment unexpectedly recurred or persisted. See, e.g., Adler v. Wal-Mart, 164 F.3d 664 (10th Cir. 1998) (in which an appeals court ruled that an employer that disciplined most of the harassers, except one that it plausibly viewed as innocent, was not liable even though harassment unexpectedly recurred, because the employer was not negligent).
Under OCR’s 1997 guidance, as under federal court precedent, a college, like any institution, had no duty to compensate victims of peer sexual harassment merely because it occurred, or to automatically dispel any hostile environment or ensure against the recurrence of inappropriate behavior, given the prevalence of misbehavior among young people. As a Supreme Court ruling that cited that guidance (while limiting its reach a bit) observed, “Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. . . . in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it.” See Davis v. Monroe County Board of Education, 526 U.S. 629, 651-52 (1999).
And a school was only required to discipline harassers who were clearly guilty, meaning that there was no rigid requirement in terms of providing even that sort of “remedy.” See Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001) (appeals court ruling reversing jury verdict for plaintiff because harasser’s guilt was so murky that employer’s failure to discipline him was reasonable); Knabe v. Boury Corporation, 114 F.3d 407 (3rd Cir. 1997) (appeals court ruling affirming dismissal of lawsuit over harassment where employer refused to discipline alleged harasser due to lack of corroborating witness); Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000) (appeals court ruling finding no Title IX liability for failure to remove harasser based on belief he was innocent, even though harassment persisted).
The Supreme Court buttressed these limits on liability, and further limited Title IX liability, in its 1999 decision in Davis v. Monroe County Board of Education, 526 U.S. 629, 648-49 (1999), which noted both that a Title IX lawsuit must show “deliberate indifference” by the school, and also that Title IX itself doesn’t give complainants a “right” to second-guess a school’s reasonable decisions about discipline, since there isn’t any “Title IX right” to “particular remedial demands” or “particular disciplinary action,” just because harassment has occurred:
“We stress that our conclusion here . . . does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. . . the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands . . .courts should refrain from second guessing the disciplinary decisions made by school administrators,” who “must merely respond to known peer harassment in a manner that is not clearly unreasonable.”
You can find the report I discussed above, which was issued by a task force set up by a bipartisan group of U.S. Senators, at this link. It is titled, “The Report of the Task Force on Federal Regulation of Higher Education: Recalibrating Regulation of Colleges and Universities.”
Hans Bader is a senior attorney at the Competitive Enterprise Institute.