Title IX

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret, and apply provisions of Title IX of the Education Amendments Act of 1972. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Title IX states that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Passed under Congress's Spending Clause authority, Title IX is contractual in nature, not banning discrimination outright but "conditioning an offer of federal funding on a promise by the recipient not to discriminate." Gebser, 524 U.S. at 286, 118 S.Ct. 1989. Put simply, there are strings attached. And if a school that receives federal funding violates the "no sex discrimination" condition, it may be held liable for money damages. See Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60, 74, 76, 112 S.Ct. 1028. * * * The Supreme Court in Gebser defined the contours of Title IX liability. And it did so carefully, given the statute's contractual framework. Essentially, schools are liable only for intentional sex discrimination. Gebser, 524 U.S. at 290, 118 S.Ct. 1989 And while Title IX covers "diverse forms" of such of discrimination [ ], it is not easy to prove an intentional violation of Title IX. Boiled down, Title IX requires actual notice to an "appropriate person" and "an opportunity for voluntary compliance." See Gebser, 524 U.S. at 275, 288, 290, 118 S.Ct. 1989; see also 20 U.S.C. § 1682. * * * First, "actual knowledge." Under Gebser, a school district cannot be liable in damages for a teacher's sexual harassment of a student unless "an official [with] authority to address the alleged discrimination and to institute corrective measures... has actual knowledge of discrimination ... and fails adequately to respond." 524 U.S. at 290, 118 S.Ct. 1989. And for the district to have knowledge, it is not enough that any employee knew of the harassment; it must be someone authorized to rectify it. Id. * * * Second, "deliberate indifference." Even if the school district knew about employee-on-student misconduct, the district cannot be liable unless its response amounted to "deliberate indifference." Id. And as we have observed, "[t]he deliberate indifference standard is a high one." Doe ex rel. Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000) (quotation marks and citation omitted). For example, liability does not attach where the official with authority to take corrective action responds reasonably to a risk of harm, "even if the harm ultimately was not averted." Id. Doe v. Edgewood Independent School Dist., 964 F. 3d 351 (5th Cir. 2020)