A new Eleventh Circuit ruling provides an important reminder to schools and other educational, childcare, hospitals and other health care and other organizations to carefully investigate sexual harassment, assault or other sexual misconduct reduction flags involving an applicant or employee.
The decision under Title IX of the Civil Rights Act in Jane Doe II v. Founding Fourteen, Inc., No. 25-13894, slip op. at 16–17 (11th Cir. Aug. 21, 2026), demonstrates the importance of thoroughly investigating criminal, licensing, employment and other signals that a prospective or current employee or other worker has engaged in sexual or other conduct that puts the employer on notice employing the individual could place customers, employees, business partners or others coming into contact with the individual at risk.
While directly addressing discrimination and sexual harassment liability exposures of schools and other educational organizations under Title IX, other provisions of the Civil Rights Act and other federal and state laws also extend substantially similar rules to healthcare, assisted living and other residential leasing, hotel and other hospitality, transportation and other public and private organizations. In addition, the analysis applied in the ruling also tracks analysis state courts often rely upon to hold employers liable for sexual assaults or other misconduct Under common law negligent hiring or other similar claims for employing individuals with past sex, assault or other crimes in positions that create a foreseeable risk to children or other customers, employees or others.
Eleventh Circuit Revives Claim Based on What School Allegedly Knew Before the Assault
In Jane Doe II v. Founding Fourteen, Inc., No. 25-13894 (11th Cir. Aug. 21, 2026) (unpublished), the U.S. Court of Appeals for the Eleventh Circuit reversed summary judgment for a Georgia charter school on a student’s Title IX claim arising from the hiring and retention of a science teacher who subsequently sexually harassed and assaulted students.
In the decision that doesn’t constitute binding precedent as it is designated “NOT FOR PUBLICATION,” the court reversed summary judgment on the Title IX hiring-and-retention claim because a reasonable jury could find the school liable. It nevertheless affirmed summary judgment for the school on the plaintiff’s separate Title IX claim concerning the school’s response after she reported the teacher’s conduct, finding that the school’s responsive measures were sufficient to prevent a reasonable jury from finding deliberate indifference.
The court also affirmed summary judgment on the plaintiff’s § 1983 claims.
Teacher Disclosed Prior Suspension and Allegations
In Founding Fourteen, Fulton Academy of Science and Technology (“FAST”) hired Robert Vandel as a teacher in 2017.
According to the Eleventh Circuit, Vandel disclosed on his employment application that his teaching certificate previously had been suspended for two years for an ethics violation. During his interview, he also explained that multiple minor female students previously had made allegations against him.
Vandel maintained that the students fabricated the allegations after getting into trouble for skipping class.
The principal responsible for hiring Vandel checked his Georgia Professional Standards Commission (“PSC”) teaching certificate and obtained a criminal-history report. But according to the appellate court, she did not contact the PSC about the suspension, contact Vandel’s former school, or obtain the PSC decision explaining the allegations and suspension.
Instead, the principal accepted Vandel’s explanation and believed he had been falsely accused.
That distinction became critical to the Eleventh Circuit’s Title IX analysis.
Viewed in the student’s favor as required at summary judgment, the evidence indicated that the principal knew the previous allegations were sexual in nature, originated with multiple minor female students, and had resulted in the suspension of Vandel’s teaching license following a formal PSC investigation.
The Eleventh Circuit concluded that a reasonable jury could find this information sufficiently substantial to put FAST on actual notice that Vandel presented a risk of future sexual harassment. Jane Doe II v. Founding Fourteen, Inc., No. 25-13894, slip op. at 13–17 (11th Cir. Aug. 21, 2026).
11th Circuit Title IX Decision Applied Actual Notice As Requiring More Than Negligence or Information That Merely Should Have Prompted Concern
The Founding Fourteen ruling illustrates the risk of hiring employees and other workers without careful vetting of concerning history or other signs in the candidate’s background. However, it does not mean that every previous complaint, rumor or allegation concerning an employee automatically gives a school or other employer the “actual notice” necessary for damages liability under Title IX. Indeed, the Eleventh Circuit expressly characterized the facts in its new ruling as occupying a “middle ground” between its precedents finding sufficient and insufficient actual notice. The distinction makes the nature, specificity, similarity, frequency, seriousness and corroboration of prior allegations particularly important when schools and other organizations evaluate sexual-misconduct risks involving applicants and employees.
The Supreme Court and federal appellate courts—including the Eleventh Circuit—have rejected Title IX claims where the information actually communicated to an appropriate school official was not sufficiently specific or serious to alert the official to the possibility of sexual harassment.
The result should not be read as replacing Title IX’s demanding actual-notice requirement with an ordinary negligence or “should have known” standard. The Supreme Court established the governing limitation in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). Title IX damages liability for teacher-on-student harassment does not rest on respondeat superior or constructive notice. Rather, an official with authority to institute corrective measures on the recipient’s behalf must have actual notice of the misconduct and respond with deliberate indifference. Id. at 277, 285, 290.
Gebser itself illustrates the difference between information suggesting inappropriate behavior and factual notice sufficient to trigger Title IX damages liability. Before discovery of a teacher’s sexual relationship with a student, parents complained to the principal about inappropriate comments the teacher had made during class. The Supreme Court held that this complaint was “plainly insufficient” to alert the principal to the possibility that the teacher was involved in a sexual relationship with a student. Gebser, 524 U.S. at 291–92.
That limitation is critical. Title IX does not impose damages liability merely because an institution, viewed retrospectively, arguably could have investigated more aggressively or discovered misconduct sooner.
Although the designation of the order is not for Publication prevents it from serving as binding precedent on other courts in the 11th Circuit, the analysis nevertheless provides invaluable insights about how inadequate investigation before hiring an employee or other worker with a dangerous background can come back to bite the employer.
Evidence Protected Employers In Other Decisions
Other cases, finding the employer not liable illustrate the value of the evidence and employer is able to produce showing the reasonless and appropriateness of its investigation and decision to hire.
The Eleventh Circuit’s published decision in Davis v. DeKalb County School District, 233 F.3d 1367 (11th Cir. 2000), provides an especially useful comparison with Founding Fourteen.
In Davis, a physical education teacher sexually molested elementary-school students and ultimately was convicted of six counts of child molestation and one count of attempted child molestation. The seriousness of the subsequently discovered misconduct, however, did not answer the separate Title IX question: What did an appropriate school official actually know before the abuse was discovered?
The plaintiffs relied upon an earlier complaint by another student. That student reported a slight touching while playing touch football and believed that the teacher was about to touch her again at a water fountain, although she moved away.
The Eleventh Circuit concluded that the information did not provide actual notice of the possibility that the teacher was sexually molesting students. The reported conduct—incidental touching during the football game and perceived imminent touching at the water fountain—was insufficient to alert school officials to the sexual misconduct subsequently uncovered. Davis, 233 F.3d at 1372–73.
The court therefore affirmed summary judgment for the school district.
The contrast with Founding Fourteen is instructive. In Davis, the earlier information involved ambiguous physical contact that did not sufficiently communicate the possibility of sexual abuse. In Founding Fourteen, by contrast, the school allegedly knew that multiple minor female students had made sexual allegations against the applicant and that a state professional licensing authority had formally investigated the matter and suspended his teaching certificate.
The Founding Fourteen panel itself relied upon precisely this distinction, describing Davis as one of the cases in which the Eleventh Circuit had found insufficient actual notice.
The Eleventh Circuit’s much more recent published decision in DeMarcus v. University of South Alabama, 133 F.4th 1305 (11th Cir. 2025), provides another important defendant-favorable comparison.
In DeMarcus, everal women’s volleyball players alleged serious physical, verbal, psychological and sexual misconduct by their coach and contended that various university personnel knew about the coach’s behavior.
The Eleventh Circuit emphasized two distinct limitations on Title IX notice.
First, the information must reach an “appropriate person”—an official sufficiently high in the institution’s chain of command to take corrective action on behalf of the institution. Knowledge possessed by assistant coaches who did not qualify as appropriate persons could not itself establish the University’s actual notice for Title IX damages purposes. DeMarcus, 133 F.4th at 1311–14.
Second, the substance of the information communicated to an appropriate person matters. Generalized reports of “highly concerning and improper practices,” physical mistreatment, yelling, psychological abuse or other nonsexual misconduct did not necessarily notify university officials of sexual harassment. The court distinguished such generalized allegations from reports actually describing conduct sexual in nature. DeMarcus, 133 F.4th at 1314–16.
The court ultimately affirmed dismissal of the Title IX claims.
This 2025 precedent is particularly important because the Founding Fourteen panel expressly relied on DeMarcus in identifying the insufficient-notice side of the line. The panel characterized DeMarcus as involving “generalized allegations of non-sexual misconduct or abuse” insufficient to provide actual notice, while finding the information known to the hiring principal in Founding Fourteen materially more substantial.
The Eleventh Circuit Says Founding Fourteen Occupies a “Middle Ground”
One of the most useful passages in Founding Fourteen for compliance purposes is the court’s comparison of the facts before it with both sides of its precedent.
The court described the case as occupying a “middle ground.”
On the stronger-notice side were cases such as Williams v. Board of Regents of the University System of Georgia, where officials knew of criminal charges associated with multiple alleged sexual assaults, and Doe v. School Board of Broward County, where school officials had received two separate student complaints of sexual harassment. See, e.g., Davis v. DeKalb County School District (incidental touching during a football game and perceived imminent touching at a water fountain); DeMarcus v. University of South Alabama (generalized allegations of nonsexual misconduct or abuse); and Gebser v. Lago Vista Independent School District (sexually inappropriate comments made in class that were insufficient to alert the principal to the teacher’s sexual relationship with a student).
What pushed Founding Fourteen across the line sufficiently to survive summary judgment, according to the panel, was the combination of information: the hiring principal allegedly knew that the allegations were sexual, originated with multiple female students, and had resulted in the serious professional sanction of a two-year license suspension following a formal investigation.
That comparison substantially limits any interpretation of Founding Fourteen as holding that every historical complaint or behavioral concern establishes actual notice.
Tenth Circuit: Prior Incidents May Be Too Dissimilar, Infrequent or Remote
The Tenth Circuit reached another defendant-favorable result in Escue v. Northern Oklahoma College, 450 F.3d 1146 (10th Cir. 2006).
There, a college student alleged that a professor sexually harassed her through inappropriate touching and sexual comments. The college previously knew of other incidents involving the professor, including earlier complaints concerning inappropriate language and touching and information about a relationship with a student.
Nevertheless, the Tenth Circuit concluded that the earlier incidents did not establish the necessary advance actual knowledge. The court characterized the prior incidents as “too dissimilar, too infrequent, and/or too distant in time” to establish that the college had actual knowledge that the professor posed a substantial risk of sexually harassing students. Escue, 450 F.3d at 1153–54.
The Tenth Circuit therefore affirmed summary judgment for the college.
The Tenth Circuit continues to recognize Escue as one of its Title IX deliberate-indifference precedents. See, e.g., Farmer v. Kansas State University, 918 F.3d 1094, 1104–05 (10th Cir. 2019) (discussing Escue and Rost).
Escue illustrates an important limitation: the mere existence of multiple historical incidents does not automatically establish Title IX actual notice. Similarity, frequency, seriousness, context and temporal proximity matter.
Fifth Circuit: Information Must Actually Reach the Appropriate Decisionmaker
Another important limitation appears in Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000).
The case involved a third-grade teacher who sexually molested numerous male students and subsequently was convicted of aggravated sexual assault and indecency with a child. The horrific nature of the ultimately proven conduct did not relieve the plaintiffs of establishing the elements required for institutional Title IX liability.
The Fifth Circuit emphasized that actual notice must reach an official with authority to address the discrimination and institute corrective measures.
With respect to an alleged 1984 report, the plaintiffs failed to create a genuine factual dispute that the principal actually received the information. Consequently, the alleged existence of information elsewhere was not enough to establish the principal’s actual notice. Doe v. Dallas Independent School District, 220 F.3d at 384–88.
The decision also illustrates a separate protection built into the deliberate-indifference standard. After a later student reported an assault, the principal interviewed the student, his mother and the teacher. Although the principal erroneously concluded that the assault had not occurred, he warned the teacher concerning the allegation. The Fifth Circuit concluded that the response, although ultimately ineffective, was not clearly unreasonable.
The Fifth Circuit subsequently relied upon Doe v. Dallas ISD for precisely this proposition: an ineffective response is not necessarily a deliberately indifferent response. See Sanches v. Carrollton-Farmers Branch Independent School District, 647 F.3d 156, 167–68 (5th Cir. 2011).
Thus, Title IX does not impose hindsight liability simply because an institution’s investigation reaches the wrong conclusion or its remedial measures fail to prevent later misconduct.
What Separates Insufficient Notice From Potentially Actionable Notice In Title IX (And Probably Other Civil Rights) Sexual Harassment/Assault Litigation
Read together, Gebser, Davis, DeMarcus, Escue, Doe v. Dallas ISD and the new Founding Fourteen decision demonstrate that the Title IX actual-notice inquiry is intensely factual, including:
- Specificity. A generalized report of improper behavior, inappropriate comments or ambiguous touching may be insufficient. An allegation specifically identifying sexual touching, sexual harassment or sexual abuse presents a materially different notice question.
- Sexual versus nonsexual misconduct. DeMarcus underscores that even serious allegations of physical, verbal or psychological mistreatment do not necessarily notify an institution that sexual harassment is occurring.
- Similarity. Earlier conduct resembling the subsequent harassment is more probative of a known risk than unrelated or materially different behavior.
- Number of allegations. Multiple similar allegations can communicate a different degree of risk than one ambiguous incident.
- Seriousness. Allegations involving sexual touching, abuse or exploitation ordinarily communicate a materially different risk than rude, unprofessional or ambiguous behavior.
- Source and corroboration. An unsupported rumor differs materially from information corroborated by an independent investigation or disciplinary proceeding.
- Professional discipline. Founding Fourteen suggests that knowledge that a professional licensing authority investigated allegations involving sexual misconduct and imposed substantial discipline can materially strengthen the factual basis for notice.
- Timing. Escue demonstrates that remote events followed by years without comparable complaints may provide less evidence of a current substantial risk.
- Who knew. Under Gebser, information must reach an appropriate official with authority to institute corrective measures. DeMarcus and Doe v. Dallas ISD reinforce that information possessed by other employees does not automatically become Title IX actual notice to the institution.
- The totality of the known information. An isolated fact that appears ambiguous when considered alone can take on different significance when combined with similar complaints, disciplinary history or corroborating evidence.
Remaining Professionally Licensed Did Not Necessarily Eliminate the Red Flags in Founding Fourteen
The hiring principal in Founding Fourteen testified that she relied in part on the fact that the State continued to certify Vandel to teach.
The Eleventh Circuit nevertheless concluded that her personal belief that the earlier allegations were false did not eliminate the potential significance of the information actually known to her.
Importantly, the alleged notice was not merely that an accusation once existed. Viewed in the plaintiff’s favor, the evidence showed that the principal knew that multiple minor female students had made sexual allegations and that the PSC had formally investigated the matter and imposed a two-year suspension.
Consequently, Founding Fourteen suggests that an educational institution cannot necessarily treat an applicant’s current possession of a professional license as resolving known information concerning previous professional discipline involving sexual misconduct.
Failure To Investigate and Supervise Could Support Deliberate Indifference
The Eleventh Circuit separately considered FAST’s response to the information allegedly known when Vandel was hired.
According to the court, the hiring principal did not obtain the PSC’s underlying disciplinary decision, contact the prior school, or otherwise investigate the allegations further. After hiring Vandel, FAST placed him in a portable classroom outside the main building without implementing additional supervision.
The panel concluded that a reasonable jury could find this response deliberately indifferent. Jane Doe II v. Founding Fourteen, Inc., No. 25-13894, slip op. at 17–20 (11th Cir. Aug. 21, 2026).
The governing standard nevertheless remains demanding. An institution is not liable simply because another response might have been preferable or more effective. Under Davis v. Monroe County Board of Education, 526 U.S. 629, 648–49 (1999), deliberate indifference requires a response that is clearly unreasonable in light of the known circumstances.
The new decision therefore should not be understood as converting Title IX into negligence liability for imperfect hiring, investigative or supervisory decisions.
Prompt Corrective Action Still Matters—And FAST Won This Part of the Appeal
The Founding Fourteen decision itself provides an important defendant-favorable illustration of this principle.
When a later principal received the report concerning Doe herself, he arranged a meeting with Doe and school personnel, offered to remove Doe from Vandel’s class, spoke with her parents, met with and reprimanded Vandel, placed him on probation, instructed him not to approach Doe about the report, and arranged for Doe to have a trusted adult to whom she could report future concerns.
Even drawing the reasonable inferences in Doe’s favor, the Eleventh Circuit concluded that she failed to create a genuine issue of material fact that the principal had acted with deliberate indifference.
The court therefore affirmed summary judgment for FAST on this portion of the Title IX claim. Jane Doe II v. Founding Fourteen, Inc., No. 25-13894, slip op. at 25–26 (11th Cir. Aug. 21, 2026).
That holding is an important counterbalance to the hiring-and-retention portion of the opinion. Title IX does not impose strict liability whenever sexual misconduct occurs. Both the quality of the information actually available to an appropriate institutional official and the reasonableness of the institution’s response to that information matter.
State Negligent Hiring and Supervision Law Can Create Parallel Exposure for Employee Sexual Assaults and Other Criminal Acts
The importance of investigating known misconduct warning signs is not limited to Title IX. State courts often analyze negligent hiring, retention and supervision claims by asking a related, although legally distinct, question: whether the employer knew or reasonably should have known that an employee was unfit or had a propensity for the type of misconduct that later injured the plaintiff.
That distinction matters. Title IX damages claims generally require actual notice to an appropriate institutional official and deliberate indifference. State tort law may apply a broader negligence standard that considers not only what the employer actually knew, but also what a reasonable hiring, retention or supervisory inquiry should have revealed. As a result, facts insufficient to establish Title IX actual notice can still present state-law risk.
Prior Sexual-Misconduct History Can Make Later Abuse Foreseeable
Virginia provides a particularly direct example. In J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 372 S.E.2d 391 (1988), as later discussed by the Supreme Court of Virginia, the court recognized a negligent-hiring claim involving a church that hired a sex offender who later sexually abused a ten-year-old parishioner. The court treated negligent hiring as a theory of direct employer liability rather than vicarious liability dependent on whether the employee acted within the scope of employment.
The Supreme Court of Virginia subsequently reaffirmed the governing principle in A.H. v. Church of God in Christ, Inc., 297 Va. 604 (2019): negligent hiring addresses an employer’s own negligence in hiring an improper person for work involving an unreasonable risk of harm, while negligent retention can arise when an employer retains a dangerous employee whom it knew or should have known was dangerous and likely to harm others. The court specifically contrasted an insufficient negligent-hiring allegation with Victory Tabernacle, where the employer allegedly hired a known sex offender who later sexually abused a child.
The comparison is important for schools, churches, healthcare providers, residential facilities and other organizations whose employees receive access to children or other vulnerable persons. A prior history involving sexual misconduct toward the same type of potential victim can make the later harm substantially more foreseeable than a generic disciplinary or criminal history unrelated to sexual misconduct.
Courts Also Reject Claims When Prior Facts Do Not Reveal a Propensity for Sexual Assault
State decisions also illustrate the other side of the line. In Travis v. United Health Services Hospitals, Inc., 23 A.D.3d 884, 804 N.Y.S.2d 840 (N.Y. App. Div. 2005), a patient alleged that a male nurse sexually assaulted her while she was sedated following surgery. New York’s Appellate Division affirmed summary judgment for the hospital on negligent hiring, supervision and retention. The hospital had used screening procedures consistent with accepted practice, and its review disclosed no information indicating that the nurse had a propensity to sexually abuse patients.
The court also concluded that an earlier allegation involving inappropriate sexual contact with a coworker, which could not be substantiated, did not make it reasonably foreseeable that the nurse would sexually assault a sedated patient. Travis, 23 A.D.3d at 884-85.
A New York trial court applied the same principle in Chunnulal v. Rosen, 2007 N.Y. Slip Op. 33404(U), dismissing negligent hiring, retention and supervision claims where the employee’s personnel history contained no incidents sufficiently violent or sexual in nature to put the hospital on notice that he had a propensity to commit sexual assault.
These cases parallel the Title IX decisions discussed above in an important respect: the mere existence of prior problems does not necessarily make every later criminal act foreseeable. Courts generally examine whether the prior conduct meaningfully indicated a propensity for the particular type of harm that ultimately occurred.
Known Violent History Can Also Matter Even When the Prior Crime Was Not Sexual
The foreseeability analysis is not confined to prior sexual offenses. In Y.H. & K.W.C. v. T.C., A-1966-21 (N.J. Super. Ct. App. Div. Mar. 16, 2023), a published New Jersey appellate decision involving negligent-hiring allegations against a rideshare company, the court addressed evidence that the company had known of a driver’s prior aggravated-assault conviction before that conviction was expunged. The court refused to treat the later expungement as automatically erasing the employer’s prior knowledge for purposes of evaluating the employer’s own conduct in a negligent-hiring claim.
The New Jersey court reiterated the state’s rule that negligent-hiring liability can arise where an employer knew or should have known that an employee was violent or aggressive, or might engage in injurious conduct toward third persons. Y.H. & K.W.C. v. T.C., A-1966-21. The decision underscores that the relevance of prior misconduct depends on the nature of the position, the danger suggested by the employee’s history, and the relationship between that history and the harm later alleged.
The Nature of the Job and the Access It Provides Matter
Foreseeability is often evaluated in context. A history that might have limited significance for one position can assume much greater importance when an employee will receive unsupervised access to children, patients, residents, customers’ homes, hotel rooms, vehicles, financial assets or other circumstances that create a special opportunity to cause harm.
For educational institutions, this point closely parallels the concern identified in Founding Fourteen. A hiring decision does not occur in a vacuum. The risk assessment should account for both what is known or reasonably discoverable about the applicant and what the proposed position will permit the applicant to do.
Title IX and State Negligence Claims Use Related but Different Standards
Employers therefore should avoid treating a successful Title IX actual-notice defense as necessarily resolving state tort exposure. The legal standards can diverge.
Under Title IX, the question ordinarily centers on whether an appropriate institutional official actually had sufficiently specific notice of sexual harassment and then responded with deliberate indifference. A state negligent hiring, retention or supervision claim may instead ask whether reasonable care should have led the employer to discover an employee’s dangerous propensity, whether later events gave the employer reason to reassess the employee’s fitness, and whether the employer reasonably supervised the employee in light of the foreseeable risk.
The converse is equally important. A prior arrest, disciplinary problem, workplace dispute or unrelated criminal conviction does not automatically make a later sexual assault foreseeable. The New York decisions above demonstrate that courts may grant judgment for employers where the prior facts did not sufficiently indicate a propensity for the particular criminal conduct that later occurred.
Practical Implications for Employers
When an applicant or employee has a prior history of misconduct, employers evaluating hiring, retention and supervision risk should consider:
- whether the prior conduct involved sexual misconduct, violence, abuse, exploitation or another danger relevant to the position;
- whether the alleged or proven victims resemble the persons the employee will encounter through the job;
- whether the information consists of rumor, an unsubstantiated allegation, a substantiated finding, professional discipline, a civil judgment or a criminal conviction;
- whether multiple incidents suggest a pattern rather than an isolated event;
- whether reasonable reference, licensing or background inquiries would reveal additional relevant information;
- whether subsequent workplace complaints reinforce or materially change the risk assessment;
- whether the position provides unsupervised access, keys, transportation authority, caregiving responsibility or other special opportunities to cause harm; and
- whether reasonable supervision, reassignment, restrictions, additional investigation or termination could reduce a foreseeable risk.
The Bottom Line
The same factual warning signs that matter under Title IX can therefore have consequences under state tort law even when the Title IX actual-notice standard is not satisfied. State negligent hiring, retention and supervision doctrines frequently focus on whether the employer knew or reasonably should have known of a dangerous propensity and whether the employee’s later criminal conduct was a reasonably foreseeable manifestation of that risk.
For employers, the practical lesson is broader than Title IX compliance: when prior information suggests sexual misconduct, violence or another serious danger, the organization should assess not only whether the information constitutes legal “actual notice,” but also whether reasonable care requires additional investigation, restrictions, supervision or another protective response. Conversely, employers should document why prior information that is remote, unsubstantiated or materially unrelated to the later risk does not reasonably establish a propensity for the particular harm at issue.
Compliance Lessons for Schools and Other Employers
The decisions point toward a more nuanced compliance approach than either treating every vague allegation as established sexual abuse or dismissing prior allegations unless they conclusively prove misconduct.
- precisely what conduct was alleged;
- whether the allegation involved sexual behavior or merely ambiguous, unprofessional or nonsexual conduct;
- whether other similar complaints exist;
- whether the allegations involved students or other vulnerable persons;
- how recently the alleged conduct occurred;
- whether an independent employer, licensing authority, law-enforcement agency or other body investigated it;
- whether discipline resulted;
- what explanation the applicant or employee provides;
- whether reasonably available records corroborate or contradict that explanation;
- which institutional officials actually received the information;
- whether those officials possess authority to take corrective action;
- what investigation occurred; and
- what supervisory or protective measures are appropriate in light of the information actually known.
These steps serve purposes beyond Title IX litigation. Effective investigation and documentation also support student protection, appropriate personnel decisions and the institution’s ability to demonstrate why its response was reasonable based upon the information available at the time.
The Bottom Line: Actual Notice Depends on What the School Actually Knew
The significance of Jane Doe II v. Founding Fourteen lies not in a rule that any prior allegation creates Title IX liability. Instead, the decision illustrates how sufficiently specific, serious and corroborated prior information can create a jury question concerning actual notice and deliberate indifference.
The cases provide useful markers on both sides of the line.
In Gebser, inappropriate sexual comments made in class were insufficient to notify the principal of the teacher’s sexual relationship with a student.
In Davis v. DeKalb, incidental touching during a football game and perceived imminent touching at a water fountain were insufficient to provide actual notice of sexual molestation.
In DeMarcus, generalized reports of nonsexual misconduct and abuse did not necessarily notify appropriate university officials of sexual harassment, and knowledge possessed by employees who were not “appropriate persons” did not satisfy the Title IX notice requirement.
In Doe v. Dallas ISD, the Fifth Circuit required evidence that the relevant official actually received the earlier information and rejected deliberate-indifference liability merely because an investigation ultimately reached an incorrect conclusion.
In Escue, prior incidents were too dissimilar, infrequent or remote to establish the necessary advance knowledge.
Founding Fourteen presents the other side of that line. Viewed favorably to the plaintiff, the evidence involved sexual allegations by multiple minor female students, a formal professional licensing investigation, and an actual two-year suspension of the applicant’s teaching certificate. The hiring principal allegedly knew those essential facts yet conducted no further investigation and instituted no additional supervision.
Even then, the Eleventh Circuit did not hold that FAST violated Title IX. It held only that the evidence was sufficient for a reasonable jury to decide the surviving hiring-and-retention Title IX claim. And it simultaneously affirmed summary judgment for FAST on the separate claim arising from its response after Doe complained.
For educational institutions, the practical lesson therefore is not to assume that every warning sign equals Title IX actual notice—or that every unsuccessful investigation equals deliberate indifference. The better focus is on exactly what an appropriate institutional decisionmaker actually knew, how specifically that information indicated a risk of sexual harassment, its similarity and proximity to the later misconduct, its corroboration and seriousness, and whether the institution’s response was clearly unreasonable in light of those known circumstances.
That disciplined, fact-specific approach both promotes student protection and preserves the important distinction drawn by the Supreme Court and appellate courts between actionable Title IX deliberate indifference and negligence, hindsight, ambiguous warning signs, or information that never provided an appropriate decisionmaker with actual notice of sexual harassment.
For Help or More Information
The author of this update, Cynthia Marcotte Stamer is an attorney Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization with decades of experience advising and assisting health industry and other employers to design, audit, and defend their employment and other risk management and compliance practices, including conducting audits and investigations, designing and updating compliance and risk management programs, responding to government investigations, conducting transaction, governance, and other due diligence, and assisting with other legal and operational compliance and risk management and legislative and regulatory affairs. She is available to assist your organization in assessing the impact of these developments and navigating the compliance and strategic steps that follow. For more information about these concerns or Ms. Stamer, contact Ms. Stamer via e-mail or via telephone at (214) 452 -8297.
About the Author
Cynthia Marcotte Stamer is an American College of Employee Benefits Counsel and a Martindale-Hubble “AV-Preeminent” (Top 1%) attorney and advisor board certified in labor and employment law by the Texas Board of Legal Specialization peer peer celebrated as “Top Rated Lawyer” and “LEGAL LEADER™ “Top Rated Lawyer” and “Best Lawyer” for her work in ERISA & Employee Benefits Law, Health Care Law, Labor and Employment Law, and Business and Commercial Law.
Nationally recognised for her decades of leading edge workforce, health and other employee benefits and insurance, compensation, regulatory affairs and compliance, and other human resources and other management work, public policy leadership and advocacy, coaching, teachings, and publications, Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private highly regulated and performance dependent organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As a a key focus of this work, she has continuously and extensively worked with domestic and international health plans, their sponsors, fiduciaries, administrators, and insurers; managed care and insurance organizations on workforce and performance management, employee benefits, compensation, regulatory and operational compliance, and other related concerns.
Her experience includes more than 35 years of leading edge work experience helping health care systems and organizations, group and individual health care providers, government contractors and other performance dependent employers; health plans and insurers, and a broad range of other businesses design and administer workforce, compensation and benefits, compliance and risk management and other practices and policies, and operate and defend organizations and practices to prevent, investigate, manage and resolve performance and behavior; manage civil rights, discrimination and accommodation, and other regulatory, contractual and other compliance responsibilities and risks; vendors and suppliers; conducting and defending investigations, audits, investigations, and other actions; crisis preparedness and response; to establish, administer and defend workforce and staffing, quality, and other compliance, risk management and operational practices, policies and actions; comply with requirements; investigate and respond to Department of Insurance, Board of Medicine, Health, Nursing, Pharmacy, Chiropractic, trucking, alcohol and firearm, and other licensing agencies, Department of Aging & Disability, FDA, Drug Enforcement Agency, OCR Privacy and Civil Rights, Department of Labor, IRS, HHS, DOD, FTC, SEC, CDC and other public health, Department of Justice and state attorneys’ general and other federal and state agencies; JCHO and other accreditation and quality organizations; private litigation and other federal and state health care industry actions: regulatory and public policy advocacy; training and discipline; enforcement; and other strategic and operational concerns.
Former lead advisor to the Government of Bolivia on its Social Security Privatization reform, Ms. Stamer also has extensive international, federal and state legislative and regulatory affairs experience on federal, state and international workforce, employee benefits, healthcare, education, insurance, data privacy and security, antitrust, and other regulations and reforms.
In addition, Ms. Stamer also is widely celebrated for her leadership in the American Bar Association (“ABA”) and a multitude of other policy, professional, civic, educational, community and other organizations. Ms. Stamer currently or previously served as the the American Bar Association (“ABA”) Joint Committee on Employee Benefits (“JCEB”) leadership council, Scribe leading the Department of Health and Human Services annual agency meeting and a representative to other annual agency meetings, speaker, author and faculty; the ABA International Section International Employment Law Committee and International Life Sciences Committee Chair; the ABA Tort Trial and Insurance Practice Section Medicine and Law Committee Chair, SCOPE member, and Employee Benefits and Worker’s Compensation Committees Vice Chair; the ABA Health Law Section Managed Care & Insurance Interest Group Chair and Risk Management Interest Group Vice Chair; the ABA RPTE Employee Benefits & Other Compensation Group Chair and Welfare Benefit, Fiduciary Responsibility, and Plan Terminations and Transactions Committees Chair; the North Texas Health Care Compliance Professionals Association Vice President and Executive Director; a Southwest Benefits Association Board Member, Treasurer and Continuing Education Committee Chair; a SHRM Consultants National and Region IV Board Chair; a WEB National Board Member and Dallas Chapter President; the National Kidney Foundation of North Texas Board Member and Compliance Chair; the Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency Board President; a North Texas United Way Long Range Planning Committee Member; and in many other leadership roles in a broad range of other professional and civic organizations.
Along with these activities, Ms. Stamer also has earned national recognition for her authorship of thousands of highly regarded works, presentations as a knowledgeable speaker, testimony and other input of regulators and legislators, and media interviews on health and other benefits, human resources and other workforce, health care, insurance, data privacy and security and other related concerns.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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