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Title IX: What Constitutes Actual Notice of Sexual Harassment or Sexual Violence in a School Setting?

By: Dr. Edward Dragan
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Under Title IX, for a school to be held liable for denying an educational opportunity to a student who was sexually harassed or abused, the court must be convinced that the school had actual notice of prohibited behavior and that it acted deliberately indifferent to it. Often, it is a challenge to define what "actual notice" is and whether the school had such notice. If the school has no information on which to act to end harassment or abuse, it cannot be determined to be indifferent. In some of the cases we have worked on, however, there has been some level of notice that, if investigated, would have confirmed that harassment or abuse was taking place. Such notice could be a teacher hearing a rumor about a sexual relationship between another teacher and a student, a staff member watching a student speak in a sexually inappropriate way to another student, or the school receiving notice that that an off-campus sexual violence event is creating retaliation at school. Examples such as these may constitute actual notice, depending on the circumstances.

If actual notice is established, the next question to answer is whether the school acted with deliberate indifference to the notice or complaint. The school's response is key when an education expert witness renders an opinion. This is not the same standard as reasonableness or negligence, as defined in the legal context. This is a professional standard-of-care issue that can be addressed by a qualified expert witness in education administration and supervision. A qualified expert can render an opinion as to whether a school's response, or lack of response, to a report of sexual harassment was reasonable in light of known circumstances.

What Constitutes Actual Notice Under Title IX?

The question of what constitutes actual notice has not been settled, and federal courts have used various methods to define it. The Court of Appeals for the Third Circuit approved a jury instruction that states "an educational institution has actual knowledge/notice if it knows the underlying facts, indicating sufficiently substantial danger to students and was therefore aware of the danger." In this case, the threshold for actual knowledge may be knowing some facts about a relationship that can be interpreted as substantially dangerous.

In James Hill v. Madison County School Board, the Court of Appeals for the Eleventh Circuit held that the U.S. District Court for the Northern District of Alabama applied an inappropriately heightened actual notice requirement that, if adopted, would absolve schools of the responsibility to respond to known sexual harassment in all but the narrowest of circumstances. The district court defined actual notice as knowledge of harassment that is already so severe it denies the victim an educational opportunity. However, the Court of Appeals noted that schools are required to respond to known harassment before it reaches that level of severity. If the school responds to this knowledge with deliberate indifference, and this deliberate indifference results in harassment severe enough to deprive the victim of an educational opportunity, then actual knowledge has been demonstrated. Based on this, schools must respond before an episode escalates and deprives the student of an educational opportunity. This may include the idea that schools should respond to rumors of inappropriate relationships between teachers and students rather than treating them as students trying to cause trouble. As mandated reporters in most states, schools are required to report any suspicions of an inappropriate teacher-student sexual relationship and allow authorities to conduct an investigation. There are no penalties for making reports that are later unsubstantiated.

School Investigation Requirements Under Title IX

In N.R. Doe v. St. Francis School District, the Seventh Circuit Court of Appeals held that actual notice must be actual knowledge of misconduct, not just actual knowledge of the risk of misconduct. Here, a teacher exchanged suggestive text messages and kisses with one of her students. The boy's mother discovered some of the texts and transferred her son to a private school. The teacher was fired, prosecuted, and pled guilty to fourth-degree sexual assault. The child later sued the school district under Title IX. In the complaint, the student alleged that reports of both an inappropriate relationship between the teacher and the teacher's reciprocation of the student's crush were sufficient to put the school district on notice of misconduct. The court, however, found that these facts did not satisfy the requirement of actual knowledge. Rather, it found, the school district only had knowledge that would cause a reasonable person to investigate further. Notice, it ruled, must be actual knowledge of misconduct - not just knowledge of a risk of misconduct.

In a typical school setting, information such as this should be concerning enough to cause a reasonable school administrator to investigate further. If the school administration had acted to investigate, it is possible that it would have obtained knowledge of a sexual assault. To protect students from harm and the school from costly litigation, it is always prudent to investigate information or rumors about potential misconduct.

These examples demonstrate how the courts are shaping the concept of actual notice of sexual harassment or abuse in schools. Each case must be reviewed in its own context and through a reasonable school administrator standard. Should the school have investigated when the principal was told that a teacher and student were holding hands in the hallway? How did the administration implement the school's policies when a parent complained that her son's teacher seemed to be spending too much time with him after school? Did the school adequately investigate a report from a 14-year-old that an older student keeps following her into the girls' bathroom? Any of these scenarios can be determined to be sexual harassment and can reasonably lead to sexual abuse. As an expert witness in education administration and supervision, my advice to schools is to err on the side of caution, assume that it is possible that there may be a Title IX violation, and conduct a thorough investigation according to the policies and procedures of the school district and the requirements of Title IX.

In Davis v. Monroe County Board of Education, the Eleventh Circuit Court of Appeals did not require that a school have a policy outlining the way actual notice is received or describe the form this notice should take. This has been the subject of countless lawsuits filed in federal courts under Title IX. Determining whether actual notice was provided not always easy to assess. This is particularly the case when students or parents do not know who should be told or when teachers fail to share reports from students or parents with the administration. An education expert witness must consider the specifics of a case, the context in which the alleged notice may have taken place, the understanding on the part of any individuals who received notice, and the overall context of the school environment when rendering an expert opinion as to whether a school received actual notice and if it responded reasonably to it.

Deliberate Indifference and Professional Standard of Care

In some of the cases our firm has handled, it has become apparent that although sexual harassment or abuse may have occurred at the school or during a school-sponsored activity, the school had no actual notice of it. Without actual notice, there can be no deliberate indifference. On the other hand, in some cases it can be easily determined that there was at least some level of notice that sexual harassment may be taking place. Reporting a rumor about a sexual relationship between a teacher and a student, under the totality of the circumstances, constitutes actual notice.

In its March 13, 1997 guidance, the Office for Civil Rights stated:

"Title IX does not make a school responsible for the actions of the harassing student, but rather for its own discrimination in failing to take immediate and appropriate steps to remedy the hostile environment once a school official knows about it. If a student is sexually harassed by a fellow student, and a school official knows about it, but does not stop it, the school is permitting an atmosphere of sexual discrimination to permeate the educational program. The school is liable for its own action, of lack of action, in response to this discrimination."

When we review Title IX matters, our experts are asked to determine whether a school acted reasonably within the professional standard of care. The focus of our review is on how the school administration and/or other employees responded to complaints of sexual harassment or abuse. Although we carefully review the documents describing allegations of harassment and/or abuse and review the student record and staff personnel file, this information is less relevant than how the school responded to the report or a reasonable suspicion of inappropriate behavior.

For example, if a student reports to her teacher that a classmate is continuously talking to her in a sexual manner and the teacher simply responds, "Ignore him and he'll stop," this might appear to be an inadequate response under the circumstances. If this occurs numerous times and the student now doesn't want to come to school because she feels uncomfortable around her peer, then a hostile school environment has likely developed. Often, it is often argued that because the student did not report the behavior to a school administrator or another person in authority who could have intervened to end the harassment, the school is not liable. However, the question is: Did the school (the teacher) act with deliberate indifference to the complaint(s) of the student, and was this a reasonable cause for harassment to continue, thus leading to a hostile learning environment?

We review school policies regarding sexual harassment, how it can be reported, and the expected response of the school. Next, we chart what issues of harassment were allegedly or actually reported to the institution and the school's response. Finally, we render an expert opinion as to whether, in light of these facts, the school, through its administration and/or other employees, knew of the harassment and/or abuse but failed to respond. Did the school act deliberately indifferent to the safety of the student? If it knew of harassment or abuse and did in fact respond, then we consider whether the response was appropriate and reasonable under the circumstances and meant to end the harassment. A school may not be liable for damages unless its deliberate indifference subjects students to harassment or continued harassment.

Dr. Edward Dragan, provides education expert consultation for high-profile and complicated cases. As an educator and administrator, he has more than 35 years' experience as a teacher, principal, superintendent and director of special education. He also has served as a state department of education official.

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