Title IX

If your child has experienced assault, sexual assault, sexual harassment, bullying, abuse, discrimination, or injuries while at school or during school functions, Title IX may have been violated. Schools are under numerous legal obligations to protect our children. When schools fail to do so, the law provides legal remedies. Many legal obligations and remedies are governed by Title IX of the Education Amendments of 1972 and 42 U.S.C. § 1983. Claims under Title IX and Section 1983 are usually filed in federal court. One can usually also allege a claim for negligence against the school.

Any negligence claim against a school is governed by Oklahoma’s Governmental Tort Claims Act, Okla. Stat. tit. 51, § 151. The GTCA has strict deadlines and requirements. Pursuant to the GTCA, one must present written notice of a claim to the appropriate political subdivision, typically the school’s Board of Education, within 1 year of the loss. Failure to do so will bar any claims for negligence. The political subdivision has ninety (90) days to respond. If the political subdivision does not respond within 90 days, one can proceed with a negligence lawsuit within 180 days. The GTCA imposes damage caps on any recovery against the school based upon a claim for negligence. Our lawyers have extensive experience handling these claims. We can help you navigate the law and procedures involved in these kinds of claims.

Title IX of the Education Amendments of 1972 is a comprehensive federal law that removed many obstacles that prevented people from educational opportunities on the basis of sex. 

Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance…” The Department of Education states an education program or activity “includes locations, events, or circumstances over which the school exercised substantial control over both the respondent and the context in which the sexual harassment occurred…”  34 C.F.R. § 106.44(a) (2020).

Title IX applies to all recipients of federal funds, whether it’s a public or private institution. It applies to issues of program equity, including but not limited to athletic programs. Title IX also applies to assault, sexual assault, sexual harassment, bullying, sexual abuse, and discrimination. Title IX covers the interactions of a school’s employees and volunteers with a student, as well as a student’s interactions with another student.

Sexual harassment and bullying include unwelcome conduct of a sexual nature. Sexual harassment can come in many forms, including sexual behavior, sexual advances, and requests for sexual favors, as well as verbal, visual or physical sexual conduct. Examples include repeated remarks about a person’s sex, stalking, inappropriate jokes, phone calls, texts, emails, gestures, and intimidation. Any of this conduct is inappropriate under the law if perpetrated by a school’s employee or volunteer.

Title IX requires every school receiving federal funds to provide a notice of nondiscrimination. The notice must be widely distributed, available and easily accessible. The notice must inform students of the protections outlined in Title IX. Title IX further requires that the school have a Title IX Coordinator and provide the contact information for that person. The Title IX Coordinator is required to ensure the school is following Title IX, and coordinate the investigation and disciplinary process for any complaints. If a school does not have a Title IX Coordinator, the school is not compliant with Title IX.

Title IX also requires that each school adopt and publish a procedure for filing and investigating complaints. The procedure must also outline the disciplinary process for addressing any complaint. The process must include notification to the involved parties, factual investigation, review and analysis of the factual investigation, a determination whether a violation occurred, a written report of the findings, and notification to the parties of the findings. The school’s response and resolution to a complaint must be prompt and equitable, meaning timely based upon the facts of each situation and fair to all parties involved.

In Cannon v. Univ. of Chicago, 441 U.S. 677 (1979), The United States Supreme Court recognizes that Title IX creates a private right of action. This private right of action allows victims who have been subjected to sexual harassment or sexual assault, during an education program or activity, to file a lawsuit against the school and seek legal relief. You do not need to file a GTCA claim before filing a claim under Title IX. However, in many circumstances it is better to file the GTCA claim first and then pursue both claims against the school.

The United States Court of Appeals for the Tenth Circuit has stated that to prevail on a Title IX claim against a school for the sexual harassment or sexual assault of an employee or volunteer, the victim must prove a district official had actual knowledge of harassment that was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational benefits or opportunities provided by the school. The victim must also prove the district official was deliberately indifferent to the harassment.

Murrell v. School Dist. No. 1, Denver, Colo., 186 F.3d 1238 (citing to Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998)): A district official can include the school’s principal or superintendent. Deliberate indifference can be shown by the district official’s refusal to investigate or remedy the conduct.

42 U.S.C. § 1983 also allows parents and students to bring claims against schools for civil rights violations. While a Section 1983 claim can include the claims one may bring under Title IX, Section 1983 can also include claims that do not have a sexual component, but violate a student’s constitutionally protected rights.

Section 1983 states, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

In general, a Section 1983 claim requires one to prove a deprivation of a constitutional right by someone acting under color of state law. For schools, “every person” can include boards of education, administrators, teachers, coaches, counselors, nurses, and other employees. Liability may be imposed upon a school when the enforcement of the school’s policies or customs causes a deprivation of a person’s federally protected rights. Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010). To prevail, one must identify a policy or custom that caused the student’s injury. Injury in this context means the deprivation of the constitutional right.

“A municipal policy or custom may take the form of (1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers’ review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.” Bryson v. City of Okla. City, 627 F.3d 784 (10th Cir. 2010).

Courts have recognized that sexual harassment and gender discrimination violate the Equal Protection Clause of the Fourteenth Amendment and can give rise to a claim under Section 1983. Murrell v. School District No. 1, Denver, Co., 186 F.3d 1238, 1249 (10th Cir. 1999); Cox v. Sugg, 484 F.3d 1062 (8th Cir. 2007).

One may also bring a claim under the Due Process Clause of the Fifth Amendment. To prevail, a person must allege a deprivation of a sufficient property or liberty interest. Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996). The guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property and requires something more than mere negligence. There must be an element of deliberateness.

The Title IX lawyers at Toon Law Firm have successfully handled numerous Title IX claims. Oklahoma lawyer Rich Toon is one of a very small percentage of attorneys who have tried a Title IX case to jury verdict.

If you believe a school employee or volunteer has acted inappropriately with you or your child, please contact us.