The Eleventh Circuit Expands Title IX Sexual Harassment Liability


By Mary Anne Ackourey and Bill Buechner
The Eleventh Circuit has expanded the circumstances under which a school district may be held liable for sexual harassment under Title IX.  In Doe v. School Board of Broward County, Fla., (11th Cir. April 27, 2010), a high school student alleged that her math teacher sexually assaulted her in the classroom by, among other things, pinning her against a classroom wall, lifting her skirt, and rubbing his penis against her vagina.   The student alleged that the sexual assault was the result of the school district’s deliberate indifference to actual notice of previous incidents of sexual harassment by the teacher.

Two students alleged several incidents wherein the teacher had propositioned them for sex and dates while they were in the teacher’s classroom.  The first student also alleged that the teacher lifted her skirt and commented on her “flat stomach” and “sexy physique.”  The second student alleged that the teacher touched her leg while trying to hold her hand and also told her to pull up her jacket and shirt so that he could see her stomach.   The school district conducted an informal investigation of the first complaint and found no probable cause.  In response to the second student’s complaint, the school district obtained written statements from the teacher and several other students, but did not investigate further.
The court held that the two prior complaints were sufficient to show actual notice.  The court held that “lesser harassment still may provide actual notice of sexually violent conduct,” and emphasized that the two students alleged both verbal and physical conduct while alone with the teacher in the classroom.  The court held that there was sufficient evidence of deliberate indifference because of the school district’s failure to further investigate the allegations of the second student.  The court rejected the notion that doing something in response to sexual harassment is sufficient to avoid Title IX liability; instead a school district must respond in a manner that is not “clearly unreasonable in light of the known circumstances.”
When deciding how to respond to an allegation of sexual harassment, school administrators should take into account that non-violent allegations of sexual harassment that include improper touching may provide actual notice of sexually violent conduct.  Also, the failure to conduct even a modest investigation of an allegation of sexual harassment could result in a finding of deliberate indifference.  Finally, when the outcome of an investigation of sexual harassment is inconclusive, school administrators nevertheless should consider taking informal corrective action such as a verbal warning and increased monitoring.
For more information regarding this article, please contact Mary Anne Ackourey at 770.818.1407 or by email at or Bill Buechner at 770.818.1420 or by email at