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U.S. Supreme Court Seems Likely to Review “One Free Rape Rule” Under Title IX

Doe v. Fairfax County School Board, 1 F.4th 257 (4th Cir. 2021).

By Jeanne Meyer, M.S., Ed.D, J.D., Consultant, TNG Consulting and Dan Fotoples, J.D., M.A., Sr. Content Developer, TNG Consulting

The Supreme Court regularly hears petitions for certiorari, which is the formal term for its decision to accept cases. The court only “grants cert” in about one percent of cases each year. In May, the U.S. Supreme Court considered whether to hear an appeal from the Fairfax County School Board. Rather than make a determination on the cert petition, the Supreme Court asked the Department of Justice to file a brief in the case, which certainly seems to signal that there is sufficient support among the justices – it only takes four – to take the case. The case could have important implications for Title IX. ATIXA experts take a deep dive here to explain the two key questions presented in this case.


Jane Doe, a high school student, sued the Fairfax County School Board, alleging deliberate indifference to her sexual harassment claim. Doe told school officials that another student had sexually harassed her while on a school band trip. At trial, the jury found that the school board did not have actual knowledge of the alleged harassment. At the conclusion of the trial, Doe requested a new trial based on an improper jury instruction that framed actual notice as subjective, rather than objective.[1] The trial judge denied Doe’s motion. Doe appealed.

The Fourth Circuit reversed the trial court’s decision, holding:

  • A school has actual notice under Title IX if it receives a report objectively alleging sexual harassment; and
  • A single, isolated incident of pre-notice harassment may be sufficiently severe to create liability when the school’s response was deliberately indifferent.


Jane Doe, a junior in high school and a member of the school’s band, traveled with the band by bus to Indianapolis to perform at a music festival. During the bus trip, Doe sat next to an older male student named Smith.[2] Smith told Doe that he was cold, and when Doe offered her blanket to Smith, he put it over both of their bodies. Doe alleged that Smith then repeatedly touched her breasts and genitals, penetrating her vagina with his fingers despite her efforts to physically block him. Doe also alleged Smith repeatedly put her hand on his penis even after she moved it away. Doe later described that she felt “confused,” “shocked,” “scared,” and was “frozen in fear” while this incident occurred.[3]

During the trip, the assistant principal become aware of the encounter and understood a sexual assault may have occurred but took no immediate action. After the band returned from its trip, Doe provided a written statement to the assistant principal. During a follow-up meeting, the assistant principal asked if the sexual activity had been consensual, and Doe responded, “I don’t think it was consensual.”[4] At the time, the assistant principal interpreted this statement to mean that Doe “didn’t want to be a participant” and that there was “a lack of consent.”[5] Moreover, Doe had told two friends about the incident and Doe’s friends reported the incident to school administrators, too. School officials continued to receive reports from other concerned members of the school community as well. School officials then interviewed Smith, who initially denied that he touched Doe sexually but later admitted that he touched her breasts.

In a meeting between the assistant principal and Doe’s parents, Doe’s mother claimed that Smith’s touching of Doe was nonconsensual and constituted a sexual assault. The school did conduct an investigation, however, school officials ultimately concluded that “the evidence that [they] had didn’t show that [they] could call it a sexual assault.”[6] The assistant principal also declined to punish both Doe and Smith for sexual activity on the bus.[7]

Additionally, evidence at trial had demonstrated that the principal made an inappropriate joke making light of the reported incident. A school safety and security specialist also attempted to dissuade Doe from taking legal action.

During the rest of the year, Doe reported being terrified of seeing or being near Smith, which caused her to take extra measures to avoid him and to refrain from band activities. Doe’s parents requested — and her teachers provided — accommodations to help Doe cope with the trauma from the alleged sexual assault.

Doe brought a Title IX lawsuit against the school board in May 2018, claiming the school had acted with deliberate indifference to reports of her sexual assault. At trial, the jury found that Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and offensive enough to deprive Doe of equal access to educational opportunities. However, the jury also determined that the school did not have actual knowledge of the alleged sexual harassment. As a result, the jury found for the school board.

After the trial, this case presented two distinct and interesting questions for the Fourth Circuit to consider on appeal: 

  1. Whether the requirement of actual notice is met when a school lacks a subjective belief that any Title IX harassment occurred; and
  2. Whether a single, severe pre-notice act of sexual harassment can trigger Title IX liability for a school.


As readers will recall from the Gebser case, a school can only be found deliberately indifferent when the school has actual notice of the harassment.[8] The “actual notice” requirement asks whether an official, who has authority to address the alleged harassment and to institute corrective measures, has notice or knowledge of the alleged harassment. In this case, the judge instructed the jury that actual notice was a subjective standard. In other words, the question was whether the school official, in this case the assistant principal, subjectively believed, in her own mind, that the allegations constituted sexual assault. However, on appeal the Fourth Circuit disagreed, holding that when an appropriate school official receives a report that can objectively be construed as alleging sexual harassment, that report establishes actual notice of harassment under Title IX.

The appeals court held that Doe’s meeting with the assistant principal and Doe’s written statement constituted notice of sexual harassment. Additionally, in the meeting between Doe’s parents and the assistant principal, Doe’s mother called the incident nonconsensual and a “sexual assault.” The appeals court held these reports, and additional complaints by witnesses, show that an appropriate official received notice in this case.[9]


As to the second issue in this case, whether a school may be liable when the school’s response to the allegations did not itself cause any additional Title IX harassment, the School Board argued no, asserting that a single pre-notice incident could not be the basis for liability.

A majority of the appeals court determined that there was enough evidence in the record to raise the possibility that the School Board acted with deliberate indifference. The court pointed to the inaction during the band trip, as well as allegations that school officials would joke about the situation and tried to dissuade Doe from taking any legal action. 

However, the dissent,[10] agreeing with the School Board’s argument, asserted that the School Board could not be deliberately indifferent, regardless of their response, because the school’s conduct, or lack thereof, did not cause any additional sexual harassment after the school received notice of the alleged sexual assault. The dissent argued that, to have liability, the school’s indifference must have caused additional harassment that denied the student the benefits of the school’s educational program. Since there was no suggestion that Smith’s harassment of Doe continued after the first incident on the bus trip, the dissent argued, the school’s conduct did not permit or cause any further injury and therefore the school cannot be liable for deliberate indifference under Title IX.

The majority disagreed, asserting that Title IX liability based on student-on-student harassment is “not necessarily limited” to cases where such harassment occurs after the school receives notice and is caused by the school’s actions post-notice. Citing Davis, the majority opinion argued that a school could be liable under Title IX when the indifference makes the complainant “liable or vulnerable” to harassment, too.[11] The court signaled that even a single incident of sexual harassment, if sufficiently severe, can inflict lasting harm on the victim. Where such harms deprive the victim of the ability to fully participate in educational opportunities provided by their school, and where the deprivation remains unremedied or compounded because of the school’s deliberate indifference, the school’s conduct violates Title IX.

As described above, the school district appealed this decision to the U.S. Supreme Court, which is expected to decide whether to accept the case soon.


  • Schools have an obligation to act based on “student-on-student” sexual harassment when an appropriate school official receives notice of the harassment. School officials are on notice when they receive a report alleging behavior that could meet one or more of the definitions of conduct protected under Title IX. This is true regardless of whether the official believes in their own mind that the reported behavior constitutes sexual harassment or whether the official believes the allegations to be true.
  • District and school staff must receive proper training, so they understand when a report needs to go to the Title IX Coordinator. Allowing other staff or administrators to manage potential sexual harassment without the Title IX Coordinator’s input can be problematic and could create liability.
  • This case illustrates a circuit split over whether a plaintiff must show the occurrence of post-notice harassment or only must show vulnerability to the possibility of further harassment.[12]  The Fourth Circuit now joins the First and Eleventh Circuits in holding that a single, isolated incident of pre-notice harassment may be sufficiently severe to create liability if the school responds in a deliberately indifferent way. In contrast, Sixth Circuit precedent is similar to the dissent in this case, holding that an isolated incident of pre-notice harassment in peer harassment situations is not enough to create liability.[13] A significant split in the circuit courts of appeal often primes a dispute for resolution by the Supreme Court. You should consult legal counsel regarding the law in your jurisdiction.

Read more Campuses and the Courts blogs here.

[1] Parties may motion for a new trial for a variety of reasons. Here, Doe argued that the judge interpreted the law incorrectly when providing instructions to the jury. Since the jury uses the judge’s instructions to determine whether the defendant violated any law, an incorrect jury instruction could produce an incorrect result. Therefore, an incorrect jury instruction could warrant an entirely new trial.

[2] “Jane Doe” and “Jack Smith” are pseudonyms.

[3] Doe v. Fairfax Cty. Sch. Bd., 1 F.4th 257, 261 (4th Cir. 2021).

[4] Id. at 262.

[5] Id.

[6] Id.

[7] Id.

[8] 524 U.S. 274 (1998).

[9] The appeals court noted that defining notice as a subjective standard goes against common sense as well. If school officials could make subjective assessments of Title IX allegations without an investigation, Title IX rights would suffer. To avoid Title IX responsibilities, school officials could simply claim that, subjectively, they did not believe the allegations fell under Title IX.

[10] In appeals courts, a panel of judges, usually three, but occasionally nine, hear and decide cases. A dissenting opinion provides the opportunity for a judge who disagrees with the majority’s ruling to articulate their view of the case and the law. A dissenting opinion holds no weight but serves to convey an alternate view of the law, perhaps to influence future court rulings on the topic.

[11] 526 U.S. 629 (1999).

[12] A circuit split occurs when different federal circuit courts reach different conclusions on a legal question, leading to different interpretations in different parts of the country.

[13] Kollaritsch v. Michigan State University, 944 F.3d 613 (6th Cir. 2019).