Deliberate Indifference: Analysis of the Circuit Split Regarding an Education Institution's Title IX Liability
No Thumbnail Available
Joyce, Leigh Campbell
McCauley, Addison C.
INTRODUCTION In 1999, the United States Supreme Court issued its seminal decision in the case of Davis as Next Friend of LaShonda D. v. Monroe Cty. Bd. Of Educ. In Davis, the Court faced the question of whether a federally-funded educational institution may be liable in a private cause of action for damages if the funding recipient (i.e., the school) is deliberately indifferent to known acts of sexual harassment between its students. Following the Court’s lengthy analysis—which has since been subject to significant debate in Title IX practice and academia, as discussed below—the Court held that “in certain limited circumstances,” it may. Twenty-three years after the Court’s decision in Davis, the precise circumstantial limitations referred to by the Court remain a topic of heated debate. This Article first addresses the Court’s holdings and rationales in Davis and Gebser v. Lago Vista Indep. Sch. Dist., the predicate case establishing the contours of funding recipient liability under Title IX by announcing the “deliberate indifference” standard. This Article next examines the current split amongst the U.S. Circuit Courts with regard to the “deliberate indifference” standard, specifically focusing on whether further, post-actual-notice harassment must occur to support an action for private damages in student-on-student harassment cases. Finally, this Article addresses the availability of damages in Title IX litigation.
Creighton University School of Law