Sexual assault, harassment, and abuse within the education system are antithetical to the notion that our educational institutions are safe spaces of growth, learning, and development. Litigants have used Title IX1×1. Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (2012). to combat institutional ambivalence and hold educational institutions liable for abuse on their watch, with the Supreme Court articulating the standard for institutional liability in Gebser v. Lago Vista Independent School District.2×2. 524 U.S. 274 (1998). There, the Court held that a plaintiff alleging Title IX violation must show that a school official possessing “authority to institute corrective measures” had “actual notice of [the discrimination]” and was “deliberately indifferent to” the misconduct.3×3. Id. at 277. Recently, in Doe No. 55 v. Madison Metropolitan School District,4×4. 897 F.3d 819 (7th Cir. 2018). A rehearing en banc of this case was granted, and the opinion was vacated on October 11, 2018. A final holding and new opinion in this case are therefore currently pending. See Order, Madison Metro., No. 17-1521 (7th Cir. Oct. 11, 2018) [hereinafter Order]. the Seventh Circuit affirmed summary judgment against a child who alleged she had been the victim of sexual abuse by a school security guard, finding that a reasonable jury could not have found, based on the record, that the school district had actual knowledge of that abuse.5×5. Madison Metro., 897 F.3d at 825. The Seventh Circuit interpreted the actual knowledge requirement in an institution-friendly manner, rejecting to exercise the latitude Gebser permits lower courts. In doing so, the Seventh Circuit’s decision elides the reasons for underreporting brought to light by #MeToo and other social movements and incentivizes institutions to refrain from investigating instances of abuse.
From 2011 to 2014, Jane Doe was a student at Whitehorse Middle School, where Willie Collins was a security guard.6×6. Id. at 820. Over that time, school officials observed potentially inappropriate behavior: School principal Deborah Ptak frequently observed Collins hugging students and saw Collins rub Doe’s shoulders.7×7. Id. Ptak noted these hugs were largely initiated by students. Id. School teachers and staff expressed concern to Ptak after observing Doe “frequently seek[ing] out Collins, initiat[ing] hugs . . . and sometimes jump[ing] and hang[ing] onto him” as well as learning of an incident where Doe jumped on Collins and kissed him on the cheek.8×8. Id. at 821. The school personnel did note that Collins rebuffed Doe, after which no such incident was observed again. Id. Ptak met with Collins to discuss the issue, and Collins assured Ptak that Doe was merely “confiding in him.”9×9. Id. Ptak cautioned Collins to establish strong boundaries.10×10. Id. After this meeting, Ptak learned that Doe had been using Collins’s name as her iPad password, Collins was seen at one of Doe’s tennis matches, and Doe had tried to get out of class by saying she needed Collins to help her with something.11×11. Id. at 821–22. Ptak and Doe’s mother never spoke to each other about the incidents, although it is disputed whether Ptak left Doe’s mother a voicemail. Id. at 821. Doe’s mother wrote Collins an email apologizing for the “drama” and thanking him for kindness he showed to her daughter. Id. at 822. Despite these warning signs, Ptak took no further action on the issue in 2013, and after Doe started her next year of school, Ptak reported she was unaware of any new events regarding Collins.12×12. Id. at 822. In August 2014, about a year after beginning eighth grade, Doe divulged that “Collins had made sexual comments to her, kissed her, fondled her breasts, rubbed his penis against her clothed body, and digitally penetrated her.”13×13. Id.
Doe filed a complaint in the U.S. District Court for the Western District of Wisconsin on September 11, 2015, alleging that the school had violated Title IX and acted negligently.14×14. Complaint at 1, Doe No. 55 v. Madison Metro. Sch. Dist., 218 F. Supp. 3d 826 (W.D. Wis. 2016) (No. 15-cv-570). The school moved for summary judgment and the district court granted the motion, noting that the Supreme Court’s standard for institutional liability under Title IX requires that an “official of the school district [with] authority to institute corrective measures . . . ha[d] actual notice of, and [was] deliberately indifferent to, [an employee’s discriminatory] misconduct.”15×15. Madison Metro., 218 F. Supp. 3d at 830 (omission and last alteration in original) (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998)). The district court did not address the question of whether the school had showed deliberate indifference, instead concluding that the school had no actual notice of sexual abuse because the information Ptak had about the relationship between Collins and Doe did not rise to the level of sexual abuse.16×16. See id. at 833–37.
The Seventh Circuit affirmed.17×17. The opinion has since been vacated and an en banc rehearing granted. See Order, supra note 4. Writing for the panel, Judge Lee18×18. Judge Lee, a District Judge for the Northern District of Illinois, was sitting by designation for this case. Madison Metro., 897 F.3d at 820. Judge Lee was joined by Judges Easterbrook and Manion. Id. emphasized that the Gebser standard rejected liability based on respondeat superior.19×19. Id. at 822 (quoting Doe v. St. Francis Sch. Dist., 694 F.3d 869, 871 (7th Cir. 2012)). He noted that an official must obtain actual knowledge of existing misconduct, “not just actual knowledge of the risk of misconduct.”20×20. Id. (emphasis added) (quoting Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004)). Judge Lee went on to note that, in part because Doe’s charge of school liability relied on events that had occurred before any alleged sexual misconduct, “such facts certainly could have raised some concern . . . [but] a reasonable jury could not find . . . that Ptak had actual knowledge of any sexual misconduct” or find that “Ptak had actual knowledge of a risk so great that harm to Doe was almost certain to materialize . . . .”21×21. Id. at 824. Judge Lee further noted that even suspicion of abuse would not fulfill the actual knowledge requirement because “to know that someone suspects something is not to know the something.”22×22. Id. (quoting St. Francis, 694 F.3d at 872). Judge Lee concluded that the facts of Madison Metropolitan equated to mere suspicion and therefore did not rise to the level required to demonstrate school liability.23×23. Id. at 825. Judge Lee thus affirmed the district court’s decision, highlighting that Ptak did not witness any contact between Collins and Doe after the incidents in her seventh-grade year, including any purported sexual abuse, and that “to the extent that others did, they did not report anything.”24×24. Id.
With an opinion from the Seventh Circuit currently pending after an en banc rehearing of the case was granted in October of last year, of critical interest is whether, despite Judge Lee’s analysis, the Seventh Circuit will realize that its original holding was not the inevitable outcome of the actual knowledge standard.25×25. The Gebser Court heavily used the term “actual notice,” see Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, passim (1998), whereas the Madison Metropolitan court heavily used the term “actual knowledge,” see Madison Metro., 897 F.3d 819, passim. For purposes of uniformity, this piece uses “actual knowledge” in referencing both Madison Metropolitan and Gebser. Because the Title IX liability scheme is judicially implied,26×26. See Gebser, 524 U.S. at 284. and the Gebser Court did not specifically define “actual knowledge,” lower courts retain latitude in applying Gebser’s standard and can use that latitude to meet the purposes of Title IX. In declining to do so, the Seventh Circuit missed an opportunity to hold institutions accountable for sexual harassment, abuse, and assault.
The Gebser case itself stands out in the history of sexual harassment law as an institution-protective decision and has received significant criticism. A private right of action under Title IX was not included under the statute and instead was judicially recognized by the Court in Cannon v. University of Chicago27×27. 441 U.S. 677 (1979). in 1979. It was not until thirteen years later that the Court also held money damages could be granted in such cases.28×28. See Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 72–73 (1992). Courts were then split as to the standard of liability to apply. Some courts applied a standard of constructive notice, analogizing Title IX to Title VII and holding that schools could be liable if they “knew or should have known” about abuse.29×29. Kaija Clark, Note, School Liability and Compensation for Title IX Sexual Harassment Violations by Teachers and Peers, 66 Geo. Wash. L. Rev. 353, 366 (1998) (emphasis added). Others, including the Seventh Circuit, applied a more stringent actual knowledge requirement.30×30. Id. at 366–67. Gebser, decided in 1998, fixed the modern Title IX liability standard.31×31. Gebser, 524 U.S. at 277. Gebser then bore the brunt of much criticism.32×32. See, e.g., Latosha Higgins, Note, Lack of Knowledge of Sexual Harassment Shields School Districts from Employer Liability Under Title IX Gebser v. Lago Vista Indep. Sch. Dist., 18 St. Louis U. Pub. L. Rev. 317, 317 n.2 (1999) (collecting sources). One salient strand of criticism emphasizes that the Title IX standard under Gebser is harder to meet than the standard for sexual harassment in the Title VII context, with critics noting that “[e]mployers can’t put their heads in the sand to avoid liability. Yet, that is exactly what schools can do under Title IX after Gebser . . . .”33×33. Kristen Galles, The Supreme Court’s Assault on Civil Rights and Access to Justice, 41 Hum. Rts. 1, 7 (2014).
A key difficulty with strict application of the Gebser standard is how difficult it is to obtain “actual knowledge” given that various biases and incentives prevent both bystanders and survivors from reporting. Recent events have shed light on how unlikely it is to get the kind of notice the Seventh Circuit imagines, highlighting the pervasive risks in leaving institutions unchecked. Take, for instance, the #MeToo movement. Stories about “casting couch” abuses have plagued Hollywood since the industry’s very inception.34×34. Thelma Adams, Casting-Couch Tactics Plagued Hollywood Long Before Harvey Weinstein, Variety (Oct. 17, 2017), https://variety.com/2017/film/features/casting-couch-hollywood-sexual-harassment-harvey-weinstein-1202589895/ [https://perma.cc/P5DZ-CGBH]. Harvey Weinstein’s sexual misconduct was, similarly, an open secret characterized as a “serial problem” by those in his network, but one the industry willingly chose to ignore.35×35. Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories, New Yorker (Oct. 10, 2017, 10:47 AM), https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their-stories [https://perma.cc/ZVX8-AAB6]. The conscious ignorance stemmed from power dynamics, with one employee stating that “[i]f Harvey were to discover my identity [after I spoke out on his misconduct], I’m worried that he could ruin my life.”36×36. Id. Many survivors were reluctant to come forward for the same reason; this phenomenon is exemplified by the story of one survivor who stated, “I know he has crushed a lot of people before . . . . That’s why this story — in my case, it’s twenty years old, some of them are older — has never come out.”37×37. Id. The risks of reporting in these situations seem to outweigh the benefits and disincentivize victims and bystanders from holding perpetrators to account, along with the institutions that enable or turn a blind eye to the abuse.
Similar patterns have emerged in the Catholic Church sexual abuse scandal, as well as sexual assault crises on college campuses and in the military.38×38. For information on these topics, see, for example, Benjamin David Landry, Comment, The Church Abuse Scandal: Prosecuting the Pope Before the International Criminal Court, 12 Chi. J. Int’l L. 341 (2011); Tanya Somanader, President Obama Launches the “It’s On Us” Campaign to End Sexual Assault on Campus, White House Blog (Sept. 19, 2014, 2:40 PM), https://obamawhitehouse.archives.gov/blog/2014/09/19/president-obama-launches-its-us-campaign-end-sexual-assault-campus [https://perma.cc/92HH-7M63]; Colleen Dalton, Note, The Sexual Assault Crisis in the United States Air Force Academy, 11 Cardozo Women’s L.J. 177 (2004); Protect Our Defenders, Facts on United States Military Sexual Violence (2018), https://www.protectourdefenders.com/wp-content/uploads/2018/06/1.-MSA-Fact-Sheet-180628.pdf [https://perma.cc/MEF9-T8VJ]. A report by the Department of Defense in 2016 uncovered that sixty-eight percent of sexual assault victims in the military did not report their assaults.39×39. U.S. Dep’t of Defense, Annual Report of Sexual Assault in the Military, Fiscal Year 2016, app. C at 7 (2017), http://sapr.mil/public/docs/reports/FY17_Annual/FY16_Annual_Report_on_Sexual_Assault_in_the_Military_Full_Report3_Volume1.pdf [https://perma.cc/749X-7RXJ]. In 2003, the United States Air Force Academy began to acknowledge the problem, noting women often did not report their assaults due to fear of retaliation.40×40. Dalton, supra note 38, at 177. One survivor stated that “[d]uring sexual assault awareness week, people told us that if you make it through all four years without being sexually assaulted, you’re lucky. . . . They also say if you want to have an Air Force career you should not report it.”41×41. Id. at 178 (omission in original). With this surge in awareness, the Obama Administration launched the “It’s On Us” campaign in an attempt to curtail campus sexual assault, with then-President Obama urging that “[i]t is on all of us to reject the quiet tolerance of sexual assault” and noting the tendency to “look the other way.”42×42. Somanader, supra note 38. In spite of longstanding pressures to be silent and complicit in sweeping sexual assault under the rug, public consciousness is on the rise, as exemplified by a Women’s Media Center study that revealed a thirty percent increase in articles on sexual assault being published between May 2017 and August 2018.43×43. Media and #MeToo: How a Movement Affected Press Coverage of Sexual Assault, Women’s Media Ctr. (Oct. 5, 2018), http://www.womensmediacenter.com/reports/media-and-metoo-how-a-movement-affected-press-coverage-of-sexual-assault [https://perma.cc/EJ9Y-EH4D].
In light of these widespread and widely publicized events, the Seventh Circuit should have applied the Title IX awareness standard in a way that adjusts for the issues of underreporting and institutionalized sexual harassment. The court even acknowledged that “to the extent that [people may have witnessed contact between Doe and Collins] they did not report anything,”44×44. Madison Metro., 897 F.3d at 825. which could be read as a subtle affirmation of the statistics on underreporting of sexual assault. Yet, instead of incorporating awareness of underreporting into its interpretation, the court left it as an aside, and worse, used it as support for the fact that there was no actual knowledge.
The Seventh Circuit’s application of the actual knowledge prong is therefore what should garner criticism and be reevaluated in its en banc review. Given that some consider Title IX a mechanism for “ensur[ing] schools prevent and respond to discrimination and harassment on the basis of sex,”45×45. S. Res. 201, 115th Cong., 163 Cong. Rec. 3736 (2017) (emphasis added). the standard of institutional liability in sexual abuse cases should be structured to encourage preventive action. Yet, by rigidly adhering to an interpretation that “actual knowledge” means either factual proof of already-executed abuse or actual knowledge of a “risk so great that harm [would] almost certain[ly] materialize,”46×46. Madison Metro., 897 F.3d at 825. the Seventh Circuit’s application of the standard detracts from the purpose of Title IX. As Professor Catharine MacKinnon notes, the rigidity of this standard means that “several students have to have been harassed and previously reported, or the harasser has to have been known to harass when hired, for the school to know a harasser is serial.”47×47. Catharine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale. L.J. 2038, 2070 (2016). If an institution can ensure that its officials ignore signs of abuse, then the court’s interpretation simply incentivizes such deflection. And while the court likely felt that it was bound by the Gebser precedent, Gebser does leave latitude in interpreting and applying its standard.
Specifically, the Gebser Court left such latitude to lower courts by not defining “actual knowledge” except to situate it against standards of respondeat superior and constructive notice,48×48. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 283–90 (1998). In delineating the “actual knowledge” prong of the test, the Court focused more on who would constitute an “appropriate person.” See id. at 290. It is worth noting that the language the Gebser Court used was “actual notice” as opposed to actual knowledge. Id. at 277 (emphasis added). Because “knowledge” has stronger connotations of awareness than mere “notice,” the Seventh Circuit’s wording of the Gebser test itself implies an unnecessarily heightened level of awareness. and lower courts have utilized this latitude in an instructive way. The Tenth Circuit has noted that, under the Gebser standard, “[a]t some point . . . a supervisory school official [should] know . . . that a school employee is a substantial risk to sexually abuse children,”49×49. Escue v. N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006) (first and third alteration in orginal) (quoting Gordon ex rel. Gordon v. Ottumwa Cmty. Sch., 115 F. Supp. 2d 1077, 1082 (S.D. Iowa 2000)). and the Eleventh Circuit has noted that the risk is what a “Title IX recipient has [a] duty to deter.”50×50. Doe v. Sch. Bd. of Broward Cty., 604 F. 3d 1248, 1258 (11th Cir. 2010). Previously, the Tenth Circuit had applied the “substantial risk” standard of notice51×51. See Plaintiff-Appellant Jane Doe No. 55’s Petition for Rehearing and Rehearing En Banc at 11, Madison Metro., 897 F.3d 819 (No. 17-1521) [hereinafter Petition for Rehearing]. The standard of “substantial risk” has also been adopted by the Fifth, Sixth, and Eleventh Circuits in interpreting “actual knowledge.” See id. and noted that the “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.”52×52. Escue, 450 F.3d at 1154 (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 63 (D. Me. 1998)). Similarly, a Washington state court in S.S. v. Alexander53×53. 177 P.3d 724 (Wash. Ct. App. 2008). implied that notice short of knowledge of already-executed abuse would suffice, stating that a student “did not have to be raped twice” before response was required because “there is no ‘one free rape’ rule.”54×54. Id. at 741.
In spite of the latitude provided by Gebser, the Seventh Circuit rigidly interpreted the standard and seemingly authorized a “one free rape” rule, where the school must either have knowledge of actual abuse or of a risk that abuse will almost certainly occur.55×55. It is unclear exactly what creates such a risk. The court stated that a school official knowing that “a staff member was a serial harasser . . . might suffice,” but did not provide further explanation. Madison Metro., 897 F.3d at 823. This interpretation is evident in Madison Metropolitan itself, where the principal was repeatedly warned about concerns over the security guard’s behavior toward Doe and even witnessed inappropriate conduct herself, but none of this was germane to the court, in part because it occurred before any abuse had actually begun. The court thus required that a student either be subject to actual assault or be at a risk that such assault will almost certainly occur before a school can be said to have such notice.56×56. For further examples and discussion of how such a rigid application of the standard can lead to such absurd results, see MacKinnon, supra note 47, at 2070.
The resulting outcome — which seems to require an actual injury before preventive steps must be taken — reflects the need for a more capacious application of “actual knowledge” that fits the precedent of Gebser while also respecting current social knowledge. Incorporating a broader interpretation for what constitutes knowledge, as other courts have done,57×57. See Petition for Rehearing, supra note 51, at 11. would allow a wider range of actions to constitute notice and mitigate harms of underreporting. Moreover, in S.S., the court found that the statutory language “appropriate person,” which refers to an official whose knowledge constitutes notice on behalf of the institution, could potentially refer to more individuals than many courts recognize.58×58. See S.S., 177 P.3d at 737–38. While these standards alleviate some of the harshness of “actual knowledge,” they are stricter than standards used before Gebser. Before Gebser, some courts used a constructive notice standard akin to negligence such that if a school reasonably should have known about misconduct, even if it never gained any actual knowledge, it could be liable.59×59. See, e.g., Kracunas v. Iona Coll., 119 F.3d 80, 88 (2d. Cir. 1997) (extending Title VII’s constructive notice to Title IX). In Gebser, the Supreme Court seemed to take most issue with the fact that constructive notice could potentially cause schools to be held liable even if nothing ever reached officials. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285–88 (1998). By contrast, a standard fashioned after the Tenth Circuit and S.S. decisions would require that the risk of misconduct be “obvious” or “substantial” as opposed to reasonably likely, forming a middle ground between lower court interpretations pre- and post-Gebser standards.
Given that courts like the Seventh Circuit may feel bound by precedent to a formalistic actual knowledge inquiry, truly systemic change is most likely to come only from Congress. Because the private right of action under Title IX is judicially inferred, the Supreme Court’s ability to shape a remedial scheme, as it noted in Gebser, is limited by congressional intent expressed in the statute.60×60. See Gebser, 524 U.S. at 284. Perhaps then, it is time that Congress itself spoke on the issue by making the private right of action under Title IX express and shaping the contours of institutional liability in a practical fashion cognizant of reality. Indeed, the Gebser Court actually invited Congress to do so, even before the watershed moments surrounding #MeToo and other sexual abuse crises came to the surface.61×61. See id. at 292–93. Congress is not limited to simply modifying the actual knowledge standard: it could opt to implement other regimes, like the due diligence standard proposed by MacKinnon, which “would hold schools accountable to survivors for failure to prevent, adequately investigate, effectively respond to, and transformatively remediate sexual violation.”62×62. MacKinnon, supra note 47, at 2041 (emphasis added). Now, with the centrality of such issues to recent political debates, particularly Justice Kavanaugh’s hotly contested confirmation and the surge of sexual assault survivors sharing their stories with their congressional representatives, the opportunity is ripe for congressional action.63×63. Senators have made public statements on sexual assault regarding the Kavanaugh hearing in particular. Senator Dianne Feinstein tweeted to highlight a “57 percent uptick” in National Sexual Assault Hotline calls after Dr. Christine Blasey Ford’s testimony. Dianne Feinstein (@SenFeinstein), Twitter (Sept. 26, 2018, 1:00 PM), https://twitter.com/SenFeinstein/status/1045040530894336000 [https://perma.cc/SX6F-5RSL]. Senator Cory Booker expressed that “how we deal with survivors who come forward right now is unacceptable.” Kavanaugh Hearing: Transcript, Wash. Post (Sept. 27, 2018), https://wapo.st/2R4RAqI [https://perma.cc/H5CW-YJJE]. Senator Kamala Harris tweeted, telling sexual assault survivors that “[w]e hear you. . . . Don’t let this process bully you into silence.” Kamala Harris (@KamalaHarris), Twitter (Oct. 5, 2018, 11:40 AM), https://twitter.com/KamalaHarris/status/1048281670548447233 [https://perma.cc/6EKL-LR7B].