What Is ‘Deliberate Indifference’ in Title IX Cases?

A recent lawsuit against the Metro Nashville Public Schools (MNPS) has put a legal term under scrutiny. The concept of deliberate indifference can determine a school’s or school district’s level of liability in Title IX cases.

If a school has actual knowledge of sexual harassment allegations but does not take appropriate action based on the known circumstances, that school is showing deliberate indifference.

Deliberate indifference occurs when at least one of the following is true:

  • The school’s actions are clearly unreasonable.
  • The school intentionally discriminates against a student.
  • The school permits discrimination that is actually known.

What is Deliberate Indifference?

Deliberate indifference refers to a specific legal standard that applies to the liability of educational institutions, such as schools and colleges, for failing to address instances of sexual harassment or assault. Under Title IX, educational institutions have a responsibility to respond promptly and effectively to reports of sexual misconduct and to take steps to prevent its recurrence.

To establish deliberate indifference, the complainant (the person alleging discrimination or harassment) must prove two key elements:

  • Knowledge: The institution must have actual knowledge of the sexual harassment or assault. This means that the school or its officials must be aware of the misconduct through a formal complaint, a report to a responsible employee, or other credible sources.

  • Indifference: The institution's response to the reported misconduct must demonstrate deliberate indifference. Deliberate indifference means that the institution's response was clearly unreasonable in light of the known circumstances. It requires a showing that the institution's response was inadequate, willfully indifferent, or clearly unreasonable, thereby causing harm or denying the complainant educational benefits.

To establish deliberate indifference, the complainant typically needs to demonstrate that the institution's response was not prompt, thorough, or impartial, or that it failed to take appropriate measures to address the reported misconduct. This could include instances where the institution failed to conduct a proper investigation, did not take disciplinary action against the accused, or did not provide appropriate support or remedies for the complainant.

If a court or administrative body determines that deliberate indifference exists, the institution may be held liable for violating Title IX. Remedies can include injunctive relief (requiring the institution to take specific actions to prevent further discrimination) and damages for the complainant.

Actual Knowledge vs. Constructive Knowledge

Prior to the 2020 Final Rule, schools were held to the standard of constructive knowledge. If the school knew or should have known that sexual harassment was occurring, they were obligated to respond. No direct complaint had to be filed. The new rule changed the responsibility to actual knowledge. Actual knowledge occurs when a complainant makes a direct report to the Title IX coordinator in writing (a lesser standard in K-12).

The change to actual knowledge was based on two Supreme Court cases: Gebser v. Lago Vista ISD, 524 U.S. 274 (1998) and Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).

According to the 2020 Title IX new rules, an educational institution can avoid deliberate indifference by doing the following:

  • Schools must offer support to the alleged victim (complainant), regardless of whether they file a formal complaint.
  • Schools must explain the process of filing a formal complaint to the complainant.
  • Schools must follow an established grievance process before taking any disciplinary action against the person accused of Title IX violations (respondent).
  • Schools must not restrict rights afforded by the U.S. Constitution when complying with Title IX.
  • Schools are required to investigate any sexual harassment allegation in a formal complaint.
  • Schools should conduct an investigation over the wishes of the complainant if circumstances warrant.
  • Schools can address allegations under the school’s code of conduct if the allegations do not fall under Title IX.

As of this writing, proposed changes to Title IX are under review. Redefining deliberate indifference and revising the steps by the educational institutions are possible. Our legal team at Parisi, Coan, & Saccocio, PLLC is watching for further developments and how our clients could be affected.

Deliberate Indifference Debated in the Courts

In May 2022, the 6th Circuit U.S. Court of Appeals struck down a lower court’s ruling regarding deliberate indifference.

The case involves two separate alleged sexual assault incidents at two separate high schools, both within the MNPS district. The Nashville cases posited a preemptive deliberate indifference. The school was negligent because if it had taken appropriate action after previous allegations, the incidents their clients endured might not have happened. In January 2022, U.S. District Judge Aleta Trauger interpreted the precedent in Kollaritsch v. Michigan State University as deliberate indifference only occurring after an incident. Judge Trauger thus dismissed that aspect of the case.

The judge did rule, however, that enough evidence was presented to show that the female student was a victim of a Title IX violation and that the school did not appropriately act after the incident occurred. The court awarded the former student $75,000.

The dismissal of pre-incident deliberate indifference was appealed. In May 2022, the Sixth Circuit said the precedent doesn’t bar claims related to a school’s conduct before, as opposed to after, an incident occurs. The pre-incident deliberate indifference charge will return to the district court for a new trial. One appellate judge dissented from the majority opinion.

Defending the Accused in Title IX Cases

We focus our practice on helping students plus college faculty and staff who are being investigated for Title IX violations. If you are being accused, you need an attorney who understands the law and the investigatory process. You need an attorney who will stand up for your rights.

Title IX consequences can impact your education and your career. Schedule a consultation through our online form or call (737) 200-2332.