10 F.4th 406
4th Cir.2021Background
- Jane Doe alleged that a male student sexually assaulted her on a high‑school band bus (touching and digital penetration) and that she froze during the incident.
- Doe, friends, and parents repeatedly reported the incident to school officials; the school investigated, asked victim‑blaming questions, declined to discipline the accused, and made limited accommodations.
- A jury found the harassment severe, pervasive, and access‑depriving but (applying an incorrect standard) found the school lacked actual knowledge; the panel majority reversed and remanded for a new trial because no evidence supported the verdict under the correct actual‑knowledge standard and a reasonable jury could find deliberate indifference.
- The full Fourth Circuit denied rehearing en banc; Judge Wynn concurred in that denial and defended the panel majority on the merits while also criticizing the practice of merits dissents appended to denials of rehearing en banc.
- Judges Wilkinson and Niemeyer dissented from the denial of rehearing en banc on merits grounds, arguing Title IX and Pennhurst principles preclude imposing liability for a single, unforeseeable pre‑notice peer assault based on the school’s post‑hoc response.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a school can be liable under Title IX for its response to a single pre‑notice student‑on‑student sexual assault | Doe: Title IX liability may attach where a single severe incident plus an objectively unreasonable/deliberately indifferent school response deprives access to education | School Board: Title IX does not unambiguously authorize damages for unforeseeable, single pre‑notice incidents; Pennhurst forbids such expansion | Panel majority (affirmed by concurrence in denial of en banc): a single severe incident plus unreasonable response can support a jury finding of deliberate indifference; case remanded for new trial; en banc denied |
| Whether Pennhurst’s clear‑statement rule bars Title IX damages for single, unforeseeable pre‑notice incidents | Doe: Davis and Davis‑line precedents permit liability based on post‑notice response that makes a student vulnerable | School Board/Wilkinson: Spending‑clause statutes must give unambiguous notice; Title IX is ambiguous here and Pennhurst precludes liability | Dissent (Wilkinson): Pennhurst applies and would preclude such liability; majority (panel) disagreed and en banc denial left panel ruling intact |
| Proper elements/standards: actual knowledge and deliberate indifference for student‑on‑student harassment | Doe: actual notice can be established by a report alleging harassment; deliberate indifference is shown by objectively unreasonable post‑report conduct | School Board: jury’s finding of no actual knowledge (under correct standard) should stand; liability cannot rest on post‑hoc response alone | Panel: corrected actual‑knowledge standard required; remanded because no evidence supported jury verdict under correct standard and reasonable jury could find deliberate indifference |
| Whether merits dissents appended to denials of rehearing en banc are appropriate and what rule should govern them | N/A (procedural) | N/A (procedural) | Judge Wynn: warned these are advisory, urged transparency and proposed amending Circuit Rule 35 to clarify such opinions do not constitute circuit law; nonetheless she treated the en banc denial as proper |
Key Cases Cited
- Cannon v. University of Chicago, 441 U.S. 677 (recognition of implied private action under Title IX)
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (actual notice and deliberate‑indifference cause requirement for damages under Title IX)
- Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (student‑on‑student harassment; deliberate indifference must cause deprivation; caution about single‑incident suits)
- Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (Spending Clause clear‑statement rule constraining conditions on federal funds)
- Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (Title IX retaliation and limits on implied rights tied to regulatory notice)
- Franklin v. Gwinnett Cnty. Public Schools, 503 U.S. 60 (availability of monetary relief under implied Title IX right)
- Farmer v. Kan. State Univ., 918 F.3d 1094 (Tenth Circuit recognizing single severe instance + bad response can support liability)
- Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165 (First Circuit holding single‑incident liability theoretically possible if response/systemic effect severe)
- Williams v. Bd. of Regents of the Univ. Sys. of Ga., 477 F.3d 1282 (Eleventh Circuit recognizing liability where school acted with deliberate indifference)
- Kollaritsch v. Mich. State Univ. Bd. of Trustees, 944 F.3d 613 (Sixth Circuit adopting narrower rule requiring post‑notice harassment for Title IX liability)
- Escue v. N. Okla. Coll., 450 F.3d 1146 (Tenth Circuit discussion of Title IX limits on peer harassment liability)
- Tahoe‑Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 228 F.3d 998 (example of practice of dissents from denial of rehearing en banc in other circuits)
- Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257 (4th Cir. panel decision reversing and remanding; central decision at issue)