Why It Matters
A student sexually assaulted in North Carolina may face a different legal landscape from one assaulted across the border in Tennessee. That geographic disparity stems from disagreements among federal appeals courts over how Title IX applies to peer sexual harassment, potentially leaving Congress or the Supreme Court to establish a uniform national standard.
Federal appellate courts are divided over whether a single severe incident of sexual harassment can support Title IX liability or whether the harassment must involve multiple incidents to qualify as pervasive. They are also split over whether a plaintiff must show that a school’s inadequate response caused further harassment or whether it is sufficient to show that the response left the student more vulnerable to future harassment.
The Sixth and Eighth Circuits have held that a single incident generally cannot satisfy the requirement that harassment be severe, pervasive and objectively offensive. By contrast, the First, Fourth, Tenth and Eleventh Circuits have concluded that a single sufficiently severe incident, including sexual assault, can support a Title IX claim.
On the separate causation question, the Sixth, Eighth and Ninth Circuits require a plaintiff to show that a school’s deliberate indifference resulted in additional harassment after the school received notice. The First, Fourth, Tenth and Eleventh Circuits have held that a response making a student more vulnerable to future harassment may be sufficient even if no additional incident occurs. According to a recent Congressional Research Service report, a student’s ability to pursue a Title IX damages claim for a school’s response to peer sexual harassment may depend on the federal circuit in which the school is located.
Title IX prohibits sex discrimination in education programs and activities receiving federal funding, but it does not expressly create a private cause of action or mention sexual harassment. The Supreme Court has interpreted the statute to provide an implied private right of action and to cover certain claims involving sexual harassment.
A federally funded school may be held liable for damages under Title IX when an appropriate official has actual knowledge of actionable harassment, the school responds with deliberate indifference and the harassment occurs under circumstances in which the school exercises substantial control over the harasser and the context.
Because the Supreme Court treats Title IX as legislation enacted under Congress’ Spending Clause authority, the obligations imposed on schools receiving federal money must be stated clearly and unambiguously. Courts favoring a narrower liability standard have relied in part on that requirement.
The Seventh Circuit recently confronted both divisions in Arana v. Board of Regents of the University of Wisconsin System. The case involved allegations that the University of Wisconsin-Madison expelled a football player after finding that he sexually assaulted two students off campus, then readmitted him without first hearing from the victims.
A Seventh Circuit panel initially adopted the broader approach, holding that a single severe incident could support liability and that increased vulnerability could satisfy the causation requirement. The full court later vacated that opinion and affirmed dismissal on narrower grounds, concluding that the university’s continued enforcement of a no-contact directive meant its response was not clearly unreasonable.
The en banc court did not resolve either circuit-split question. A four-judge dissent argued that disputed evidence, including whether pressure from donors and other influential people drove the readmission decision—should have been considered by a jury.
The Big Picture
The Supreme Court established the principal framework for Title IX sexual harassment claims in Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education.
Under Gebser, a school may be liable for damages when an official with authority to take corrective action has actual knowledge of discrimination and responds with deliberate indifference. In Davis, the court held that a school may be liable for its response to student-on-student harassment when the misconduct is so severe, pervasive and objectively offensive that it deprives the victim of access to educational opportunities or benefits.
A peer-harassment plaintiff generally must establish that an appropriate school official had actual knowledge of the harassment; that the harassment was severe, pervasive and objectively offensive enough to deny educational access; and that the school’s clearly unreasonable response subjected the student to harassment.
Courts disagree over how those requirements apply to a sexual assault reported only after it occurs. The Sixth Circuit has reasoned that the word “pervasive” generally requires multiple incidents and that a plaintiff must connect the school’s post-notice response to later actionable harassment.
The Sixth Circuit has also characterized the claim as requiring knowledge, an unreasonable response, injury and causation. Under that approach, a plaintiff must show that the school’s response caused or failed to prevent additional harassment; increased vulnerability alone is insufficient.
The Eighth Circuit followed a similarly restrictive approach in K.T. v. Culver-Stockton College, affirming dismissal of a claim involving an alleged single sexual assault. In Doe v. Board of Trustees of the Nebraska State Colleges, the court held that the plaintiff could not establish the necessary causal connection because no additional harassment occurred after the institution received notice.
Other appellate courts have interpreted Davis differently. The First, Fourth, Tenth and Eleventh Circuits have concluded that a sufficiently severe assault can satisfy the actionable-harassment requirement and that deliberate indifference may subject a student to harassment by making the student more vulnerable, even without a second incident.
Political Stakes
The circuit split leaves schools subject to different potential liability standards depending on location and provides uneven remedies to students asserting otherwise similar claims. The Seventh Circuit’s en banc decision avoided choosing between the competing approaches, allowing the disagreement to continue.
The Department of Education announced in February 2025 that it would enforce the 2020 Title IX regulations after a federal court vacated the Biden administration’s 2024 rule. The 2020 regulations remain the basis for the department’s administrative enforcement, but agency regulations do not necessarily resolve the standards courts apply in private lawsuits seeking damages.
Congress could amend Title IX to specify whether a single severe incident may support school liability and whether increased vulnerability is sufficient to satisfy the causation requirement. It could also direct federal agencies that fund educational programs to promulgate regulations clarifying schools’ obligations when responding to peer sexual harassment.
Congress has previously amended the scope of federal civil rights laws through the Civil Rights Restoration Act of 1987, which broadened the definition of a covered “program or activity” under Title IX, Title VI, Section 504 of the Rehabilitation Act and the Age Discrimination Act.
The Bottom Line
Students’ ability to hold schools financially liable for deliberately indifferent responses to peer sexual harassment varies across federal judicial circuits. Some courts require multiple incidents and further post-notice harassment, while others allow claims based on a single severe assault and a school response that increases the student’s vulnerability.
The Seventh Circuit’s en banc decision in Arana left both questions unresolved. Unless the Supreme Court intervenes, Congress could establish a uniform rule governing when schools receiving federal funding may be held liable under Title IX.
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