Federal legislators have introduced a bill to correct absurdities in anti-discrimination law that ensure institutions are rarely held liable for egregious acts of discrimination on their campuses. As things currently stand, a school district cannot be held liable for an on-campus rape of a student even if the student had previously been harassed by the assailant and told her teacher about the harassment, but the teacher failed to report it to the right administrator at the school. Even where students can bring legal claims against their schools for the school’s failure to properly address sexual harassment, they may well walk away from such a lawsuit empty handed because plaintiffs cannot recover punitive damages and may not be able to recover emotional distress damages in civil rights lawsuits in the education context. Imagine this: a college knows that it employs a professor who has assaulted countless students over many years. The professor sexually assaults another student on campus. Despite suffering extreme mental health consequences from the assault, the student manages to stay in school and graduate on time. If the student sues the school, a court could decide that even though the school has violated the student’s rights under Title IX, the student is not entitled to any damages for the harm the school has caused.
The new bill, H.R. 9387 and S. 5158, is called the Students’ Access to Freedom and Educational Rights Act of 2022 (SAFER) and would realign these civil rights statutes with their original purpose: to ensure that schools prevent and address bias-based harassment.
Why is the Act needed?
In its findings, the bill recounts statistics demonstrating the significant number of students affected by harassment based on various protected categories, particularly sexual harassment, and harassment of LGBTQI+ students. The findings then note that while Title IX has broad language and was meant to “open the courthouse doors” to students who had experienced harassment and discrimination, decades of Supreme Court cases have restricted and undermined the reach of civil rights statutes that apply in the educational context. These include Title IX (sex discrimination), Title VI (race discrimination), the Rehabilitation Act (disability discrimination), and the Age Discrimination Act (age discrimination).
The findings start with a discussion of two Supreme Court cases from the late 1990s, Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, which set a high bar for students attempting to sue schools for damages related to sexual harassment. In Gebser and Davis, the Court declined to interpret Title IX as it had Title VII, which prohibits discrimination and harassment in employment. Instead, the Court determined that a school could only be held liable for harassment of students in monetary damages if it had actual knowledge of harassment in its program and was “deliberately indifferent” to that harassment. As subsequent jurisprudence has confirmed, “deliberate indifference” is an incredibly high standard; many students who have been harmed both by harassment and by their schools’ refusal to effectively address that harassment are unable to meet that standard.
Last June, the Supreme Court issued another decision that will severely limit students’ ability to hold their schools accountable for failing to address harassment. In Cummings v. Premier Rehab Keller, the Court held that because the Rehabilitation Act was passed pursuant to Congress’s authority under the Constitution’s spending clause, plaintiffs suing under the Rehabilitation Act are only entitled to those remedies available in breach of contract actions. The Court then held (contrary to significant case law, as the dissent noted) that damages for emotional distress are not the type of damages traditionally recoverable in contract suits. The impact of this decision is significant for discrimination involving harassment claims under the Rehabilitation Act. As Justice Breyer noted in his dissent in Cummings, discrimination “is particularly likely to cause serious emotional disturbance.” In many cases, such as those involving a hostile educational environment, emotional distress is the only significant category of damages a plaintiff will have. By eliminating plaintiffs’ ability to seek damages, the Cummings Court made it extremely difficult for people experiencing harassment and discrimination to bring claims at all. As the SAFER Act notes, the reasoning in Cummings could be extended by courts to other Spending Clause statutes, including Title IX and Title VI, effectively eliminating students’ ability to redress harassment they experience. The SAFER Act states: “Legislative action is necessary and appropriate to restore the access to the courts that was sharply limited by Gebser v. Lago Vista Independent School District, Davis v. Monroe County Board of Education, Cummings v. Premier Rehab, and other court opinions, restore the availability of a full range of remedies for harassment based on sex, race, color, national origin, disability, or age, and prevent discriminatory harassment in schools.”
How would the Act change schools’ liability under civil rights laws?
The Act would effectuate two main changes with respect to lawsuits against schools: (1) changes the standard for what plaintiffs must show to prevail on a claim under various civil rights laws, and (2) makes clear that a wide array of remedies is available for violations of those laws.
Liability for harassment
The Act would make an institution strictly liable for harassment (sexual, racial, disability-based, and age-based) committed by its employees, agents, or people authorized to provide the institution’s services or benefits if the harassment were enabled by the person’s authority exercised as an agent, employee, or person providing a benefit or service, or if the institution receives notice of the harassment. The Act would make institutions liable for harassment by a person who is not an employee, agent, or person providing a service or benefit, regardless of whether the harassment occurs, if the recipient receives notice of the harassment. On its face, this language makes institutions liable for any harassment committed against someone receiving any benefit or service from the institution if the target of the harassment gives the institution notice that the harassment occurred.
The Act would put the burden on the institution to prove it is not liable for the harassment. It includes an affirmative defense that institutions can raise in a lawsuit. An institution is not liable for harassment if it demonstrates it exercised reasonable care to prevent harassment and remedy the effects of harassment. The Act defines the “reasonable care” a school must take to include: (1) having and publishing a harassment prevention policy, training, and complaint procedure; (2) undertaking prompt, thorough, and impartial investigations when requested by someone who has experienced harassment; (3) providing supportive measures to people who have experienced harassment; (4) taking appropriate corrective action to address harassment. The Act includes a statement that the mere fact that harassment did not recur after the institution receives notice of the harassment is not enough to show that the institution exercised reasonable care.
Definition of “notice”
The Act would broaden the definition of when an institution has received “notice” under the statute. As Title IX currently stands, an institution only receives sufficient notice under the law if the institution’s Title IX coordinator or “an official with authority to institute corrective measures” on the institution’s behalf has “actual knowledge” of the harassment. In practice, this protects schools from harassment liability unless the person reporting the harassment makes the report in the right way. For example, if a student reports harassment to a school dean, but not the Title IX coordinator, the school could be deemed not to have sufficient notice of the harassment because the dean may not be a person with authority to address the situation. Even if the person to whom the report is required by school policies to report harassment to the Title IX coordinator, if that person fails to do so the school will not be considered to have received notice. Alternately if the Title IX coordinator hears rumors that harassment is going on but does not receive a direct report, the institution may be deemed not to have “actual knowledge.”
The SAFER Act would require a school to act to address harassment if an agent or employee of the institution should have known of the harassment and “(1) has the authority to take action to redress the harassment; (2) has the responsibility to report to an administrator harassment or similar misconduct by others; or (3) receives a report of such harassment from an individual who could reasonably believe that the agent, employee, or other authorized person is as described in paragraph (1) or (2).” This means that schools no longer get a pass if they actively bury their heads in the sand and try to avoid knowing about harassment. It means that if a student reports to someone they believe is the correct person to address the situation, the school will be liable if the situation is not addressed. And it means that if an employee is required to report harassment to the Title IX coordinator and fails to fulfill that duty, it is the school, not the student, who bears the responsibility for that failure.
The SAFER Act would make clear that individuals bringing suit under the relevant civil rights laws are entitled to the full panoply of equitable and legal relief available from the courts, including compensatory damages, emotional distress damages, punitive damages, and attorney’s fees and costs.
The SAFER Act is a much-needed fix to address decades of court decisions narrowing students’ rights and their ability to redress violations of those rights in court. The Act would bring the affected civil rights laws more in line with the protections provided to employees under Title VII. As the bill notes in its findings, under the current state of the law “schools may do less to address harassment against their students than to address the same harassment of their employees. This means that students, who are often children and young adults, must suffer worse harassment than adult employees before they are entitled to a remedy in court.” The SAFER Act would correct this imbalance and put the onus on schools to properly prevent and address bias-based harassment.
If you or a student you know has experienced harassment or discrimination in school, contact our education and Title IX lawyers at (617) 742-6020.