Your child is a bright student, with good grades, an active social life, and an overall happy outlook. Then something shifted. You watched your child change before your eyes. Where they once loved learning, they’re now fearful, depressed, and dread going to school at all, never mind participating in school once they get there.
Stories like these are tragically common in school sexual harassment and abuse cases. And for parents, who want nothing more than to protect their child, it’s difficult and frightening to know where to go next.
The first question is the school’s responsibility to protect your child and whether the school can be held liable for failure in that duty, resulting in injury to your child. And while there is no straightforward answer, parents and children do have options to hold schools accountable and ensure that stories like this don’t happen to another child.
Among the most important protections for students is Title IX of the Educational Amendments of 1972, more commonly known as Title IX.
Title IX is a federal law administered by the U.S. Department of Education which protects people from sex-based discrimination (including sexual harassment, abuse, and assault) in educational settings, programs, or activities that receive federal funding. It states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The law applies to all institutions receiving assistance from the Department of Education, including state and local educational institutions. It covers roughly 16,500 school districts, 7,000 postsecondary schools, charter schools, for-profit schools, and even libraries and museums in all 50 states and the District of Columbia.
That said, while Title IX coverage is broad, the U.S. Supreme Court has set a high bar for success in Title IX lawsuits.
First, only schools that receive federal funding are eligible for Title IX coverage and lawsuits. This primarily refers to public schools, though it does also cover many private schools, charter schools, for-profit schools, etc.
Second, an appropriate school office must have been notified of (and thus aware of) the harassment, abuse, or assault. This could be a principal, guidance counselor, or even a teacher—anyone with the corrective power to resolve the issue is appropriate. The important point is that relevant school officials must have been aware that the incidents were happening.
This is because of the third criteria: school officials must have responded with deliberate indifference, which often means a failure to investigate the allegations or take steps to prevent future harassment or abuse.
This is due to Davis v. Monroe County Board of Education, a 1999 Supreme Court ruling which has shaped later interpretations and applications of Title IX.
Under the Davis ruling, the Supreme Court held that repeated, ongoing, and obvious sexual harassment which is serious enough to adversely affect a child’s school performance or makes the child too afraid to enter certain areas of the school is denying that student their right to equal protection in school programs under Title IX, and thus a Title IX lawsuit can be brought on the child’s behalf. This includes cases of student-on-student harassment.
However, the court also held that private monetary damages can only be pursued against the school board if the plaintiff can prove:
Since the Davis ruling, the Supreme Court has significantly expanded Title IX protections for students.
The tricky part comes with sovereign immunity.
Since schools receive federal funding, they fall under the scope of Title IX. However, this also means that they fall under sovereign immunity, which means that state and federal governments cannot be sued without their consent or unless state and federal governments elect to waive their immunity. This applies to all levels of government—including public schools and their employees.
The good news is that all 50 states, including Michigan, have passed some laws creating exceptions to that immunity. In Michigan, that falls under the Governmental Tort Liability Act.
Under the Governmental Tort Liability Act, governmental agencies and those who work for them are generally immune to liability for torts (i.e. personal injury and other civil lawsuits) if they are engaged in the “exercise or discharge of a governmental function”.
A governmental function is vaguely defined as, “an activity that is expressly or impliedly mandated or authorized,” by some law, a definition which is treated quite broadly in Michigan courts. Exceptions to the rule are read narrowly and include things like:
In plain English: you can (in theory) file a lawsuit against the school for failing their responsibility to your child, but there is a highly specific claims process which must be followed before you are able to file your lawsuit in court.
This brings us to the issue of individual school employees.
Civil cases rely on proving that a person, group, or organization was directly responsible for damages to you, for which they can be held accountable through monetary compensation. If you’re dealing with the school, rather than student-on-student harassment, the defendant is thus the school, the district, or one of its employees.
Since public school employees (and some private school employees) are considered governmental employees on some level, sovereign immunity does apply to them. This generally insulates them from liability for anything except gross negligence, which requires concrete awareness of a specific danger to a child followed by a conscious choice to ignore that danger.
The Supreme Court offered guidance on this issue in Gebser v. Lago Vista Independent School District, a 1998 ruling which holds that monetary damages cannot be recovered unless a school official who has the power to take corrective action has actual notice of employee misconduct and is deliberately indifferent, a ruling reinforced by the Davis decision a year later.
In simple terms, this means that you have to provide concrete evidence of negligence at several levels before the school or its personnel can be held liable.
Facing a school sexual harassment or abuse case is a parent’s worst nightmare, and the legal maze of when and how a school can be held responsible makes the issue even worse.
But no matter what, it’s important to remember that you have options to keep your child safe from harm. We’re here to help you make sense of those options and fight for what your child deserves. Our firm takes pride in applying our experience and compassion to helping victims and their families through trying times.Share this Article