Tatum Pike | When Does Title IX Liability for Sex Discrimination Arise for Educational Institutions?

Background:

Title IX was established fifty-three years ago to protect individuals from sex-based discriminatory practices in educational institutions that receive federal funding. The law prohibits these educational institutions from causing anyone to "be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity" based on that individual’s sex. 20 U.S.C. § 1681(a). 

In April of 2018, Isabella Arana, a University of Wisconsin student, was sexually harassed and assaulted by two football players, Quintez Cephus and Danny Davis III. Arana’s father informed the school of the incident, and the university began a Title IV investigation. Additionally, the university instituted a no-contact order between Cephus and Arana. At the end of the Title IX process, Cephus was found, by a preponderance of the evidence, responsible for two charges: third-degree sexual assault and sexual harassment. The University of Wisconsin expelled Cephus, and the no-contact order stayed in place. 

Later, Cephus faced a charge of second-degree sexual assault in the Dane County Circuit Court and was acquitted by the jury. After his acquittal, he petitioned for readmission to the school. After the submission of his petition the University of Wisconsin football program and several influential donors, including a significant donor that had just pledged a sizable donation, urged Chancellor Blank to readmit Cephus. Chancellor Blank reviewed the petition and additional evidence used in the trial that was submitted by Cephus’s attorneys. Notably, Chancellor Blank did not reach out to Arana or her attorneys during this process. On August 19th, Cephus was readmitted to the university and permitted to play football. 

Due to Cephus’s acquittal in the Dane County Circuit Court, the university overturned his third-degree sexual assault charge, but not his sexual harassment charge. Additionally, the university maintained the no-contact order between Arana and Cephus. At the start of the semester, Arana and her attorneys met with the university to develop a safety plan, given that Cephus was back on campus. The university brushed off Arana’s request, encouraging her to walk away or call 911 if she came across Cephus. As a result, Arana changed her behavior at the university; she skipped classes, didn’t use communal student resources or study spaces, avoided parts of campus where she might encounter Cephus, switched to easier courses, reduced her attendance at sorority events, and traveled home for the weekends instead of socializing. As a result, Arana's graduation was delayed by a semester, which delayed her matriculation into law school.

In June 2020, Arana filed a Title IX suit against the University of Wisconsin, “alleging, in part, deliberate indifference to the sexual harassment that she experienced” due to the university ignoring her request for a safety plan and Arana feeling that the university would not uphold the no-contact order. Arana v. Bd. of Regents of the Univ. of Wis. Sys., 142 F.4th 992, 998 (7th Cir. 2025). The district court, finding that Arana could not show that the harassment of Cephus deprived her of educational opportunities, granted summary judgment in favor of the university, arguing that no reasonable jury could find for her on all elements of her Title IX claim. Arana appealed the summary judgment, arguing that the district court erred in concluding that no reasonable jury could find for her. 

In Arana, the Seventh Circuit relied on the analysis in Davis v. Monroe County Board of Education, which explained the elements of a successful Title IX claim based on student-on-student harassment. First, the school must have had actual knowledge of the harassment. Second, the harassment was “so severe, pervasive, and objectively offensive” as to deprive the victim of educational opportunities or benefits. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 632 (1998). Third, the educational institution’s response to the harassment must be deliberately indifferent. The Seventh Circuit focused primarily on the second element and third elements. The circuit split happens along the second element; if a single incident of sexual harassment can be so severe, pervasive, and objectively offensive as to be actionable under Title IX. Specifically, Arana argued that the University of Wisconsin readmitted Cephus due to outside pressure, not because of additional evidence or changed circumstances, and that once Cephus was back on campus that the university was deliberately indifferent to Arana. Ultimately, the Seventh Circuit found that a single incident of sexual harassment can be actionable under Title IX and reversed the summary judgment in favor of the university.

Issue:

Can a single incident of sexual harassment meet the standard of “severe, pervasive, and objectively offensive” giving rise to Title IX liability for an educational institutional under certain circumstances?

The Split:

First Circuit

In Fitzgerald v. Barnstable School Committee, the First Circuit read Davis in a similar manner as the Seventh Circuit. The Court upheld that schools may be in violation of Title IX if they make students liable or vulnerable to harassment. Additionally, the First Circuit upheld that a single instance of harassment could form a basis for Title IX liability “if that incident were vile enough and the institution's response, after learning of it, unreasonable enough to have the combined systemic effect of denying access to a scholastic program or activity.” Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172-173 (2008).

Fourth Circuit

In Doe v. Fairfax County School Board, the Fourth Circuit used similar reasoning to the First Circuit when considering a single incident of sexual harassment. Here, the Court held that a single incident can cause serious lasting harm to the victim, which in turn can deprive them of their ability to participate in educational opportunities. If the educational institution knows of this single incident of sexual harassment, and is deliberately indifferent to it, then the school may be held liable under Title IX. Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 274 (4th Cir. 2021).

Eleventh Circuit

The Eleventh Circuit is interesting in that both sides of the circuit split point to a case in this circuit as upholding their opposing points of view. The majority in Arana points to the Eleventh Circuit as a sister circuit which held in Williams v. Board of Regents that a single incident can fit the severe, pervasive, and objectively offensive standard set out in Davis. However, in Willaims, the Eleventh Circuit found that the assault differed from the theoretical single incident mentioned in Davis, but never explicitly upheld that a single incident could be actionable. Williams v. Bd. of Regents, 477 F.3d 1282, 1298 (11th Cir. 2007). Despite this potential ambiguity, the Seventh Circuit, in their opinion in Arana, read Williams to allow Title IX claims for a single incident of harassment. Notably, the dissent opinion in Arana alleges that Williams actually supports the argument that a single incident is not actionable. The dissent opinion’s argument is that Williams does not support the single incident argument because it involved several actions of sexual assault and rape in the same night.  

Sixth Circuit

The Sixth Circuit, in Kollaritsch v. Michigan State University Board of Trustees, analyzed the meaning of the word “pervasive” differently than the Seventh Circuit. Here, the Court read Title IX's language of “pervasive” to mean “systemic”, which then requires multiple incidents of harassment to be actionable. Interestingly, the Sixth Circuit also points to Davis in their analysis of this element, which they read to echo that a single incident would fall short of Title IX’s definition of “systemic” harassment. Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 620 (6th Cir. 2019).

Eighth Circuit

The Eighth Circuit, in K.T. v. Culver-Stockton College, employs a similar line of reasoning to the Sixth Circuit. Here, the Court held that a single sexual assault is not actionable under Title IX because it falls short of the pervasive discrimination requirement. Additionally, the Eighth Circuit read Davis in a similar manner as the Sixth Circuit in that “pervasive” requires that there be more than one incident. Notably, the Eighth Circuit refers to Williams in the Eleventh Circuit as upholding their reading that a single incident is not actionable under Title IX. K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1059 (8th Cir. 2017).

Looking Forward

It is hard to predict the future of this circuit split. The evolution of this split will be influenced by many factors including the amount of future Title IX cases, the priorities of the Office for Civil Rights within the Department of Education, the current administration’s view on Title IX specifics, and the continuing changes to the Title IX hearing system.

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