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Prior Non-Compliance Opens Door for District Liability in the Present

Doe v. Metropolitan Government of Nashville and Davidson County

No. 20-6225 (6th Cir. May 19, 2022)

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG Consulting

Jane Doe and Sally Doe, students at separate high schools, each sued the Metropolitan Nashville Public Schools (MNPS) for Title IX violations. They alleged that they had each experienced sexual harassment at school, with other students videorecording the harassment. According to the Plaintiffs, MNPS had a history of failing to address similar incidents, and those failures created an environment resulting in their harassment.


Jane Doe and Sally Doe sued MNPS alleging violations of Title IX and constitutional violations under 42 U.S.C. §1983. MNPS moved for summary judgment against both students. The district court granted MNPS’s summary judgment motions. Plaintiffs appealed.


Jane Doe

Jane Doe was a first-year student at Maplewood High School in September 2016. On September 21, 2016, four older male students engaged in unwelcome sexual activity with Jane Doe and another female student in a school stairwell. Jane was unaware that someone recorded the incident and circulated the video. She later became aware of the video and other students started calling Jane Doe a “slut” and “whore.”[1]

Jane Doe’s parents reported the video to the principal, explaining that another student made and circulated the video without Jane’s knowledge. Jane was afraid to stay at Maplewood and enrolled in a new school the day after meeting with the principal.

Sally Doe

Sally Doe was a first-year student at Hunters Lane High School in February 2017. On February 21, 2017, a male student led Sally into a bathroom and pressured her into performing oral sex. Initially, Sally did not disclose the assault to the school, but shared additional details of the assault after another student posted a video recording of the incident to Instagram approximately one and one-half months later.

Sally Doe’s mother and grandmother met with the assistant principal and a school resource officer to report the video. The assistant principal told Sally’s mother that it was now a criminal matter and to contact the police.

After the video became public, other students called Sally names and threatened her. In response, the assistant principal arranged for Sally to finish the school year at home. However, during summer school at Hunters Lane, as well as the following school year, Sally endured name calling, such as “slut” and “whore.”[2] A male student also touched Sally Doe’s buttocks during class, which resulted in a fight involving Sally Doe after the student posted a picture of him touching her.


The court examined the facts of these two cases against the Sixth Circuit’s Kollaritsch decision, which held that for liability to result, an institution must have actual knowledge of actionable sexual harassment and the school’s deliberate indifference must result in further actionable harassment.[3] In Kollaritsch, the four female students were assaulted once each, thus the court concluded the women could not show the University’s actions (or lack thereof) caused them to suffer additional harassment. The same victim must endure further harassment for the institution to be liable.

In this case, Jane Doe and Sally Doe allege theories of liability based on MNPS’s conduct before the harassment as well as liability based on MNPS’s conduct after the harassment. Under their “before” theory, Plaintiffs contend that MNPS knew of a widespread problem in its schools including numerous instances of sexual misconduct and the dissemination of sexual images of minor students without their consent. Further, Plaintiffs allege that MNPS was deliberately indifferent to the widespread problem, and MNPS’s deliberate indifference caused their sexual harassment.

The lower court dismissed the “before” claim because Kollaritsch precludes “before” claims. However, the Sixth Circuit on appeal determined that the allegations and facts in this case are “quite different.”[4] During discovery, MNPS turned over five years of records related to sexual misconduct, showing documentation of more than 950 instances of sexual harassment, more than 1200 instances of inappropriate sexual behavior, 45 instances of sexual assault, and 218 instances of inappropriate sexual contact. Many of those incidents involved students taking and/or distributing sexually explicit photos or videos of themselves or others. School principals addressed the incidents on an individual basis. The Title IX Coordinator was not involved, only receiving notification if the untrained principals determined there was a Title IX violation.

The Sixth Circuit determined that extending Kollaritsch’s same-victim requirement to Title IX “before” claims, like the claims in this case, would undermine the purpose of Title IX. In effect, it would permit schools to remain deliberately indifferent as long as the same student did not suffer harassment twice. Citing Davis v. Monroe County Board of Education, as well as several opinions from other circuit courts, the court adopted the following test for “before” claims:

  1. A school maintained a policy of deliberate indifference to reports of sexual misconduct,[5]
  2. Which created a heightened risk of sexual harassment that was known or obvious,
  3. In a context subject to the school’s control, and
  4. As a result, the plaintiff suffered harassment that was so severe, pervasive, and objectively offensive that it can be said to have deprived the plaintiff of access to the educational opportunities or benefits provided by the school.

Rather than premising liability on a school’s commission (directly causing further misconduct), a “before” claim is premised on the school’s omission (creating vulnerability leading to future harassment). As the disciplinary records indicate, MNPS was aware of sexual harassment issues well before Jane Doe and Sally Doe reported their incidents. To hold MNPS immune from liability so long as no student is a victim twice would defeat Title IX’s purpose. As such, the appeals court overturned the district court’s decision regarding the “before” claim.

Turning to Sally Doe’s “after” claim, the district court previously granted MNPS’s motion to dismiss because it determined that no reasonable jury could conclude that the school was deliberately indifferent. Here, the court outlined several facts, including the assistant principal telling Sally Doe’s mother to go to the police and failing to refer Sally Doe to the Title IX Coordinator, that could demonstrate MNPS opted to avoid the problem rather than fulfilling its Title IX obligations. The appeals court overturned the lower court’s decision.

The lower court dismissed Jane Doe’s “after” allegation relying upon Kollaritsch, a case involving a university. However, the appeals court determined that the distinction between a university and a high school makes a difference for a student-on-student harassment claim under Title IX. Universities primarily cater to college students and may not exercise the same degree of control over their students as K-12 schools. The institutional context is important to the Title IX analysis. Considering the difference in control, the appeals court declined to extend Kollaritsch to a Title IX claim in a high school setting, reversing the lower court’s decision.


  • Courts may hold K-12 schools to stricter standards than colleges or universities given the degree of control K-12 schools have over their students. Here, failure to take action to address patterns of misconduct across the district created liability even though the Sixth Circuit court previously barred “before” claims in cases involving universities. It is interesting to see the Sixth Circuit walk Kollaritsch back in certain contexts, first in K-12, but now also in a recent employee-on-student case, Wamer.[6] The minority rule promulgated in Kollaritsch is being mostly swallowed by exceptions, it seems, and perhaps this retreat by the Sixth Circuit is in anticipation of the Supreme Court granting cert on Doe v. Fairfax, which is asking the Court to uphold Kollaritsch’s unpopular and illogical “one free rape” rule.
  • Title IX standards continue to evolve as courts hear Title IX lawsuits. The best way to ensure your institution protects itself from liability is to develop Title IX-compliant policies and implement them appropriately. Here, the school district did not follow its Title IX policies because teachers and principals did not typically notify the district’s Title IX Coordinator of sexual harassment and misconduct reports. Having clear expectations and guidelines around reporting is important, and districts should ensure that their staff members receive training on district Title IX policies and any reporting expectations staff members must fulfill. Under the 2020 Title IX regulations, all K-12 employees must report sexual harassment to the Title IX Coordinator.
  • More pointedly, this case tells K-12 Title IX coordinators around the country that “spot-cleaning the carpet” won’t satisfy Title IX if there are underlying issues left unaddressed by the spot-cleaning approach. The harassment cited in this case is systemic, and the court is clearly saying that, looking at the larger picture of video-based harassment in the district, the district can’t simply treat it as a series of spots. They must pull up the carpet and remediate the underlying problem beneath that is causing all the spots to emerge on the surface. Title IX coordinators need to literally connect the dots of disparate incidents to see if they indicate systemic trends. Many of us who watch Title IX cases carefully thought that Judge Trauger’s original district court decision in this case implicated a duty to train and prevent under Title IX, in the face of a systemic sex-based hostile environment, to avoid “before” theory liability[7] – arguably the true significance and import in this case.
  • Institutions across the country are tasked with navigating different standards based on court decisions in their jurisdictions. The Supreme Court may hear a case sometime next year to help resolve some of these discrepancies, but it is unlikely that a wholly uniform standard for civil suits will emerge any time soon, as the Supreme Court usually only answers the narrow question asked of it in any specific case. Title IX Coordinators must regularly consult with their legal counsel or external Title IX resources like ATIXA to understand the current state of caselaw in their jurisdictions.
  • Although this case is from the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee), administrators and Title IX Coordinators should note the court’s reasoning regardless of their institution’s location. Circuit courts often look to decisions made in other circuits when rendering decisions. In this case, the court adopted its standard from the Eleventh Circuit’s opinion on a similar case, and borrowed elements of analysis from the Ninth Circuit, as well.

Read more Campuses and the Courts blogs here.

[1] Doe v. Metropolitan Gov’t of Nashville & Davidson County, No. 20-6225 (6th Cir. May 19, 2022), at 2.

[2] Id. at 3.

[3] 944 F.3d 613 (6th Cir. 2019).

[4] Doe v. Metro. Gov’t of Nashville & Davidson County, at 6.

[5] This four-part test comes from Karasek v. Regents of the University of California (956 F.3d 1093 (9th Cir. 2020)), quoting Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).Other courts have described a “policy” of deliberate indifference as an “unwritten custom, practice, and policy,” borrowing from analogous cases such as §1983 Monell claims (Monell v. Department of Social Services of New York, 436 U.S. 658 (1978)).

[6] 27 F.4th 461 (6th Cir. 2022).