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PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

‘Take Responsibility Act’ Would Upend Long-Standing Supreme Court Decisions, Dramatically Increasing University Liability Risk

WASHINGTON / October 11, 2021 – Rep. Debbie Dingell (D-MI) recently introduced H.R. 5396 (1), a bill that would substantially increase universities’ risk of being targeted in Title IX lawsuits. The bill would remove the “actual notice” standard for Title IX claims, and provide a private right of action for alleged violations of Title IX regulations. These two changes would revolutionize how Title IX cases are handled on college campuses.

First, Section 3(a) of H.R. 5396 would abolish the “actual notice” standard for deliberate indifference of Title IX claims. “Deliberate indifference” claims are those filed against schools by persons who claim they are victims of sexual harassment or sexual assault where the university failed to act in response to the allegation.

Currently, such claims are governed by the standard set forth by the Supreme Court in Gebser v. Lago Vista Independent School District (2), and Davis Next Friend LaShonda D. v. Monroe City Board of Education (3). These cases established the same standard for faculty-on-student and student-on-student claims, respectively. For a plaintiff to succeed, he or she must show that the school had “actual notice” of the harassment, meaning that “an official who at a minimum has authority to address the alleged discrimination… has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” (4). In addition, the plaintiff must prove that the harassment was “so severe, pervasive, and objectively offensive that it… deprive[d] the victim of access to the educational opportunities.” (5).

Rep. Dingell’s bill would overrule these Supreme Court cases and establish a much lower standard. Under H.R. 5396, Title IX plaintiffs could use a negligence standard, which would allow them to prevail if they could merely show that the school “should have known” about the harassment. This bucks the Supreme Court’s reasoning that such a standard would unfairly punish schools for actions of third parties of which the school was unaware (6). Were this bill to become law, schools could expect a flood of litigation from alleged victims who may not have even filed complaints at their respective schools, because the school need not know about the harassment to be liable.

Second, the changes wrought by the bill’s Section 3(b) would be even more profound. This section would provide a private right of action to all Title IX plaintiffs (not just victim-plaintiffs) for violations of federal Title IX regulations.  As it stands now, victims of campus sex discrimination are required to prove discrimination in court, under the appropriate Title IX theories. Under H.R. 5396, a student could prevail if he or she shows discrimination, or that Title IX regulations were violated.

For example, the current Title IX regulations require “notice of the allegations of sexual harassment potentially constituting sexual harassment.” (7) Under the current Title IX regime, a plaintiff cannot sue if a school fails to provide adequate notice (unless he argues that the failure was motivated by sex-bias); rather, he will have to file a complaint with the Office for Civil Rights and hope that the Executive Branch enforces its regulations. Under the Dingell bill, by contrast, the plaintiff could simply show the school failed to provide adequate notice, and that failure in itself would be sufficient to show a violation of Title IX.

The effects would be immense. Whereas currently OCR could decline to pursue claims it received, under this bill every student effectively would become a citizen enforcement agency empowered to enforce federal regulations.

If this bill were to become law, schools could be held liable for harassment they did not know occurred, and for any failure to strictly abide by federal regulations. It is unclear whether sexual harassment accusers or respondents would be more likely to take advantage of these changes. But there is little doubt that if enacted into law, H.R. 5396 would provide an array of opportunities for students searching for creative strategies to cover their higher education expenses.

Citations:

1. https://www.congress.gov/bill/117th-congress/house-bill/5396?q=%7B%22search%22%3A%5B%22H.R.+5396%22%2C%22H.R.%22%2C%225396%22%5D%7D&s=1&r=2
2. 524 U.S. 274 (1998).
3. 526 U.S. 629 (1999).
4. Gebser, 524 U.S. at 290.
5. Davis, 526 U.S. at 650.
6. Davis, 526 U.S. at 642.
7. Section 106.45(b)(2)(i)(B).