When Is Rape A Title IX Civil Rights Act Violation?

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

"Peer-on-Peer" Harassment Under Title IX

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

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

When student-on-student harassment (or rape) occurs, a school district may be held liable under Title IX if four distinct requirements are met.5 First, the district must exercise "substantial control over both the harasser and the context in which the known harassment occurs."6 Second, the sexual...