In Salazar v. South Antonio Independent School District, the U.S. Court of Appeals for the Fifth Circuit held that an educational institution can be liable under Title IX for sexual misconduct committed by its employees, but only when an employee with power to correct the misconduct—other than the wrongdoer himself—is aware of the misconduct and is deliberately indifferent to it. Although the student plaintiff in the case argued an institution could be liable based on a principal’s deliberate indifference to his own misconduct, the court rejected this result as inconsistent with Title IX. The court held: “We discern no congressional intent in Title IX to provide a private cause of action for damages when the only employee or representative of [an institution] who had knowledge of the [misconduct] was the offender.” The court’s ruling ensures that an educational institution—including a college or university—will not be liable under Title IX someone other than the wrongdoer at the institution is aware of misconduct and the institution has a fair opportunity to respond to it, but nonetheless remains deliberately indifferent.
The facts of Salazar are tragic. The plaintiff was an elementary school student who was repeatedly molested by a man who was a vice principal and subsequently principal of public elementary schools. In the trial court, it was undisputed that the perpetrator was the only school employee who was aware of the molestation until it was eventually reported to police by the victim’s family. It was also undisputed that, once police were notified, the school cooperated fully with the investigation. Nonetheless, based on its understanding of the Supreme Court’s decision in Gebser v. Lago Vista Independent School District, the district court held the school district could be liable for the perpetrator’s acts because the perpetrator was a managerial employee with responsibility to redress sexual misconduct, and he was deliberately indifferent to his own misconduct. A jury subsequently found in the plaintiff’s favor, awarding $4,500,000 in damages against the district.
On appeal, the Fifth Circuit held that the district court erred in its reading of Gebser and inappropriately expanded the scope of liability beyond that permitted by Title IX. As the Fifth Circuit noted, Gebser held that an educational institution can be liable for violating Title IX where there is (1) actual notice of sexual harassment; (2) to an official empowered to take corrective action; (3) who reacts with deliberate indifference. Applied mechanically and in isolation, these elements do appear to support the district court’s reasoning. However, as the Fifth Circuit noted, Gebser also stated that “where a school district’s liability rests on actual notice principles, however, the knowledge of the wrongdoer himself is not pertinent to the analysis.” The Fifth Circuit held the district court erred by ignoring this critical language and improperly imputed the perpetrator’s own knowledge to the district.
The Fifth Circuit went on to note that Title IX’s implementing regulations contemplate that the Department of Education will take enforcement action against an institution only when the institution has been found in violation of Title IX and has refused to voluntarily remedy the violation. The Fifth Circuit found that holding an institution civilly liable under Title IX solely due to a perpetrator’s deliberate indifference to his own undisclosed misconduct would be inconsistent with this enforcement structure and amount to a de facto form of strict liability not intended by Congress.
What this means to you
The Fifth Circuit’s decision in Salazar limits Title IX liability to cases where an employee, other than the perpetrator himself, is aware of the misconduct, has the power to correct it, but nonetheless remains deliberately indifferent to it. While the decision reversed a potentially dramatic expansion of Title IX liability that would have resulted from the district court’s rule, in reinforcing institutional obligations to respond to misconduct, Salazar reminds colleges and university administrators of the need to train appropriate administrators, managers, and others with responsibility to correct misconduct to promptly report information on sexual misconduct to an institution’s Title IX Coordinator or other designated reporting official.