Readers by now are aware of Title IX, a statute that is supposed to prevent sex discrimination in educational institutes. It originally related to opportunities for women in college sports. Over the years the statute quickly evolved. By the 2000s, Title IX was being used to adjudicate alleged sexual misconduct between co-eds. The basis was that if schools weren’t adjudicating complaints from female students, the school was effectively discriminating against them and violating Title IX.

One of the major hurdles to Title IX which is constantly ignored is a little Supreme Court decision you may have heard about: Davis v. Monroe County Board of Education. This decision requires harassment to be “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Davis standard above never appeared in the Obama administration’s guidance regarding schools adjudicating campus sexual assault and harassment, and schools largely ignored it.

But a recent ruling from the U.S. Court of Appeals for the Sixth Circuit has upheld the Davis decision. The three-judge panel was reviewing whether Michigan State University had violated the so-called Davis precedent from the Supreme Court. It holds that a school is liable for damages only when it is “deliberately indifferent” to sexual harassment “so severe, pervasive, and objectively offensive” that it functionally blocks the victim’s education. (Schools often misstate this precedent in their policies on harassment, replacing “and” with “or” – reducing the three-prong test to a single prong.) 

In short, we hold that a student-victim plaintiff must plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school’s deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries. A student-victim’s subjective dissatisfaction with the school’s response is immaterial to whether the school’s response caused the claimed Title IX violation.

The panel noted the three-prong test is not easy to meet: “severe” is more than “name-calling” or “juvenile behavior,” “pervasive” is more than one incident, and “objectively offensive” is not determined by the “perceptions” of the alleged victim. There are also four necessary prongs to deliberate indifference. A school has to “consciously disregard” known harassment and respond in a “clearly unreasonable” way that causes more than “emotional harm.” The fourth prong: The injury to the victim must stem from “post-actual-knowledge further harassment,” encouraged by the school’s indifference. The decision clears Michigan State of wrongdoing and sends the case back to the district court for dismissal.

The ruling is reflective of the Department of Education’s proposed regulations, which it published for review in November 2018, said KC Johnson, a professor of history at Brooklyn College who writes about due process violations in Title IX proceedings. “The court said that the complainant doesn’t have the right to a specific punishment,” Johnson said. “It’s a recurring theme to how the Sixth Circuit has approached this more broadly, and how Education Secretary Betsy DeVos approached the regulations.”

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