Last week we told you about the 11th Circuit’s decision in the infamous “rape bait” case, Hill v. Cundiff. The court held that the school district, and some of its employees, could be held liable for the injuries suffered by the 8th grader who was used as “bait” to catch a boy “in the act” of sexually harassing her. In its ruling, however, the court actually rejected the standard of liability that the plaintiff and her supporters were advocating. This is particularly interesting because those supporters include the Department of Education and the Department of Justice.
The argument was over what the plaintiff had to prove in order to win. Did she have to show that the school had “actual notice” of harassment that had already occurred? Or would it be sufficient to show that the school officials knew that there was a “substantial risk” that sexual harassment would occur. There is a big difference there. It’s basically about whether the school is liable based on what it knew, or what it “should have known.”
The court said that the “substantial risk” standard proposed by the federal Department of Education and Department of Justice “lacks merit.” The court noted that the DOE’s proposed standard was based on cases involving teachers who sexually harassed students—not student-on-student cases. As the court noted, there is a big difference:
The standard for student-on-student sexual harassment claims is far more rigorous than a claim for teacher-on-student harassment.
The [Supreme] Court imposed this high standard to guard against the imposition of “sweeping liability.” Unlike an adult workplace, children “may regularly interact in a manner that would be unacceptable among adults.”
Some risk of sexual harassment is inherent in the enterprise of public education, in particular because public schools must educate even the most troublesome and defiant students.
The high burden of Davis [the Supreme Court’s student-on-student case] ensures that school districts are not financially crippled merely because immature kids occasionally engage in immature sexual behavior.
Based on that analysis, the court chastised the lawyers from the Departments of Justice and Education for citing the wrong cases:
All of the cases cited by [the plaintiff] and the Department of Justice applying a “substantial risk” standard or similar language involved teacher-on-student harassment.
Thus the higher standard was rejected, which is good news for school districts in the future. It didn’t help the Huntsville, Alabama district, however, as the court went on to rule that it failed the easier test.
The case is Hill v. Cundiff, decided by the 11th Circuit on August 12, 2015.
DAWG BONE: THE STANDARD FOR STUDENT-ON-STUDENT CASES IS MORE RIGOROUS THAN IN A TEACHER-ON-STUDENT CASE.