JANE DOE v. FAIRFAX COUNTY SCHOOL BOARD
No. 19-2203
United States Court of Appeals for the Fourth Circuit
June 16, 2021
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
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.
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
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
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-
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
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
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.”
- they were a student at an educational institution receiving federal funds;
- 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;
- 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
- the school acted with deliberate indifference to the alleged harassment.
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).
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—
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
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,
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.
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“);
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).
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
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
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
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
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.
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
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
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.
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.
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
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“).
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.
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.
In Davis, the Supreme Court explained that an educational institution could be liable under
We agree with the First and Eleventh Circuits that a school may be held liable under
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
Thus, we hold that a school may be held liable under
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
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
- 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
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
The jury in this case returned a verdict in favor of the School Board, finding that it was not liable under
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
The female student filed suit against the Fairfax County School Board, alleging that the school violated
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
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
II
In Davis v. Monroe County Board of Education, the Supreme Court again considered a school‘s
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:
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
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. at 653–54. 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
Thus, I would affirm.