Title IX provides that “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 education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The Supreme Court has explained that an educational institution can be held liable under Title IX not only where its deliberate indifference “causes students to undergo harassment,” but also where such indifference “makes them liable or vulnerable” to harassment. Davis, 526 U.S. at 645
A school may be held liable when it makes a student vulnerable to sexual harassment by their peers, such as by failing to respond appropriately after learning of an initial incident of sexual assault. A single, severe instance of peer-on-peer harassment can lead to liability for a school where the school’s response, or lack thereof, leaves the victim vulnerable to additional harassment. The school has a duty to not respond with indifference, and to leave the student vulnerable to further attacks.
So, if a school responds to a reported sexual assault in an inappropriate manner, it can be held liable for “its own decision to remain idle in the face of known student-on-student harassment in its school”—that is, for subjecting one of the students in its care to discrimination on the basis of sex.
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