Many higher education institutions are well-versed in Title IX compliance and litigation issues as they relate to gender discrimination claims on account of university conduct, or claims arising out of sexual assaults on campuses.  However, an increasingly concerning area of Title IX litigation, enforcement, and compliance deals with peer gender-based harassment and bullying, including, specifically, harassment and bullying of students that identify as LGBTQ.  University legal departments and Title IX coordinators should consult with counsel to formulate Title IX policies that can limit the impact of these potential claims, in addition to retaining counsel well-versed in peer-harassment issues to handle the defense of underlying lawsuits or to associate with insurance defense counsel.

This alert addresses: (i) the types of theories and claims that have been brought against higher education institutions and other covered entities due to peer gender-based harassment; and (ii) how Title IX policies can be formulated and implemented in order to ensure statutory compliance and bolster universities’ defenses of these claims in private litigation and government-enforcement actions.

Types of Peer Gender-Based Harassment Claims

Recently, students have brought lawsuits against universities as a result of gender-based bullying by their peers.  The general theory behind these claims is that the university’s Title IX policy and the implementation of that policy in response to an incident was so deficient as to violate the statute.  The types of claims being brought in this context vary (some complaints allege civil rights claims under 42 U.S.C. § 1983, negligence claims, and other state-law tort claims, or violations of other federal and state anti-discrimination statutes), but most of them allege a specific violation of Title IX.

A plaintiff bringing a Title IX claim due to peer gender-based harassment is usually required to demonstrate the following: (1) a sexually hostile educational environment; (2) that he or she provided actual notice to “an appropriate person” who had authority to take corrective measures; and (3) that the institution’s response to the harassment amounted to “deliberate indifference.”

Price v. Scranton School District provides an example of a peer gender-based harassment claim.  In Price, a seventh-grade student “developed a discomforting yeast infection causing her to scratch her genital area.”^[1]  She was taunted by several students and called names, such as “bitch,” “skank,” “slut,” “tramp,” and “whore.”^[2]  The student’s parent notified the school, and the school implemented “some form of punishment” to the students involved in the harassment.  In spite of this, and other remedies offered by the school, the harassment continued.  As a result of the harassment, the student left class, resigned from her yearbook position, and eventually left the school district.

The court found that the complaint established a sexually hostile educational environment because the taunting and slurs were gender-based and were brought on by the female student’s medical condition.  The court also found that, based on the complaint, the school was deliberately indifferent because of inadequate discipline, a delay in separating the students, inaction by the superintendent, and the school “did not implement any policy to educate their students or employees about sexual harassment.”^[3]

Buoyed by the initial success of the gender-based harassment claims in cases like Price,students and attorneys have become more creative in asserting claims.  For example, in Howard v. University of Virginia,^[4] Aidan Howard, a freshman at the University of Virginia (“UVA”) and a member of UVA’s football program, filed a complaint against the university alleging, among other things, that he was the “target of bullying and harassing conduct because of his soft-spoken and mild-mannered nature,”^[5] and some upperclassmen “perceived him to be ‘soft’ and ‘not manly’ like other student-athletes in the Football Program.”^[6]  In order to prove “his toughness and manliness,” Howard was allegedly pressured to fight with another freshman.^[7]  As a result of this fight, Howard suffered serious injuries, including a broken orbital bone.^[8]

In Howard, one of the claims was that UVA violated Title IX by acting with deliberate indifference towards this alleged bullying incident.  Therefore, what is likely to figure prominently in the case (which is pending) is the existence of UVA’s gender-based harassment policies, whether those policies were adhered to, and the extent of the investigation into the harassment.

Focusing Title IX Policies to Bolster Potential Defenses 

When faced with a peer gender-based harassment claim, universities have a number of defenses available to them.  As noted below, many of these defenses are bolstered through having strong Title IX policies in the first instance.

• Target peer gender-based harassment.  Price and Howard, noted above, illustrate the need to implement and enforce specific policies that deal with peer gender-based harassment.  While it is difficult, or impossible, to completely eliminate peer gender-based harassment from campuses, institutions can significantly bolster their defense of any potential claims under Title IX by implementing policies and educational programs geared specifically towards peer gender-based harassment.
• Focus on LGBTQ harassment.  Similarly, Title IX policies that are geared towards harassment of LGBTQ students due to nonconformance with gender stereotypes are important to position universities to defend against such claims.  In the Association of American Universities’ recent survey conducted regarding campus sexual assault among college students, LGBTQ students reported “significantly higher rates of sexual assault and harassment, as well as violence from an intimate partner, than their heterosexual peers.”^[9]  Many LGBTQ students who are victims of sexual assault and harassment will likely turn to Title IX as a remedy.^[10]
• When analyzing Title IX harassment claims brought by LGBTQ students, courts consider sexual orientation harassment to be either on the basis of sex per se (i.e., the court does not inquire whether gender-identity or sexual-orientation discrimination is of the type of discrimination that is actionable under Title IX) or on the basis of sex because of a failure to conform to gender stereotypes.^[11]  Riccio v. New Haven Board of Education provides an example of a Title IX claim involving a failure to conform to gender stereotypes.  In Riccio, an eighth-grade student was called derogatory names (e.g., “dyke,” “freak”) because of her friendship with another female student and her choice of dress.^[12]  The court relied on a Title VII Supreme Court case and guidance from the Department of Education’s Office of Civil Rights (“OCR”) to conclude that homosexual-related harassment constituted sexual harassment.^[13]
• Given the higher rates of Title IX violations experienced by LGBTQ students, institutions should consider measures and policies that specifically address the issue of bullying based on nonconformance to gender stereotypes.
• Follow OCR’s Title IX guidance.  OCR has issued several “Dear Colleague Letters” and other documents that specifically address Title IX and Title IX compliance.  Some universities have had a visceral reaction to adopting OCR’s guidance, in part, because there have been challenges brought against OCR for allegedly violating the Administrative Procedure Act.^[14]  That said, failure to adhere to OCR’s guidance could not only be used against a university in litigation, but universities may risk losing federal funding if they fail to comply with OCR’s guidance.  One critical part of OCR’s guidance in this context is OCR’s directive for universities to treat students consistent with their gender identity “even if their education records or identification documents indicate a different sex.”^[15]  OCR further provides detailed guidance on what constitutes harassing conduct,^[16] and that gender-based complaints by LGBTQ students should be investigated in the same manner as sex-based harassment.^[17]

Conclusion

Peer-based gender discrimination presents another form of potential Title IX compliance and litigation risk for universities to address.  A careful review of existing policies, as well as periodic legal review of those policies, may ensure that universities are well-prepared to defend against litigation in this context.

_{[1]Price v. Scranton Sch. Dist., No. 11-0095, 2012 U.S. Dist. LEXIS 1651, at *9 (M.D. Pa. Jan. 6, 2012).}

_{[2]Id. at *10.}

_{[3]Id. at *25.}

_{[4]No. 2:16-cv-01576-DSC (W.D. Pa.).}

_{[5]Compl. ¶ 17.}

_[6]Id.

_{[7]Id. at ¶¶ 34–51.}

_{[8]Id. at ¶ 49.}

_{[9]Adrienne Green & Alia Wong, LGBT Students and Campus Sexual Assault, Atlantic (Sept. 22, 2015), http://www.theatlantic.com/education/archive/2015/09/campus-sexual-assault-lgbt-students/406684/; David Cantor et al., Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, Westat (Sept. 21, 2015), https://www.aau.edu/Climate-Survey.aspx?id=16525.}

_{[10[See generally Adele P. Kimmel, Title IX: An Imperfect But Vital Tool to Stop Bullying of LGBT Students, 125 Yale L. Rev. 2006, 2015, (2016).}

_{[11]See Kimmel, supra 14, at 2015 nn.4–45.}

_{[12]Riccio v. New Haven Bd. Of Educ., 467 F. Supp. 2d 219, 222 (D. Conn 2006).}

_{[13]Id. at 226.}

_{[14]See Doe v. Lhamon, No. 1:16-cv-01158-RC (D.D.C. Aug. 15, 2016), https://www.thefire.org/amended-complaint-in-doe-v-lhamon/.}

_{[15]U.S. Dep’t of Justice & U.S. Dep’t Educ., Dear Colleague Letter (May 13, 2016).}

_{[16]OCR’s guidance covers gender-based harassment in detail.  OCR’s April 2015 Title IX Resource Guide provides a brief summary of OCR’s previous Dear Colleague Letters regarding gender-based harassment.  The guide states the following:}

_{Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic and written statements, or conduct that is physically threatening, harmful, or humiliating. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. Indeed, a single or isolated incident of sexual violence may create a hostile environment.}

_{Office for Civil Rights, Title IX Resource Guide, U.S. DEP’T EDUC., at 15 (April 2015).  OCR also states that Title IX “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” Id.}

_{[17]OCR further notes that “[a] recipient should investigate and resolve allegations of sexual or gender-based harassment of lesbian, gay, bisexual, and transgender students using the same procedures and standards that it uses in all complaints involving sex-based harassment.”  Office for Civil Rights, Title IX Resource Guide, U.S. DEP’T EDUC., at 16 (April 2015).}