13-year-old Jon Carmichael committed suicide after severe homophobic bullying at his school. His parents sued the school district for violations of Title IX, which provides that “[n]o 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 . . . .” According to the Carmichaels, the bullying experienced by Jon from 2009 to 2010 constituted a “severe, pervasive, and objectively offensive” pattern of student-on-student sexual harassment. The trial court dismissed the lawsuit and the Carmichaels appealed.
The U.S. Court of Appeals for the Firth Circuit reversed. While noting that the Supreme Court explicitly limited Title IX claims based on student-on-student sexual harassment to encompass only “pervasive” and “widespread” conduct with the “systemic effect of denying the victim equal receives the federal funds, the court noted that the sexual-harassment allegations in the complaint that do satisfy Title IX’s requirement of pervasiveness.
In addition to the videotaped incident, in which the football team “stripped [Jon] nude and tied him up,” the complaint also refers to other “numerous occasions” on which “Jon was accosted by a group of boys in the locker room—oftentimes having his underwear removed—while Defendant Watts observed.” The complaint later refers collectively to these occurrences in the plural as “incidents of sexual assault.” The district court did not analyze or even mention these portions of the Carmichaels’ complaint.
According to the appellate court, the removal of a person’s underwear without their consent on numerous occasions plausibly constitutes pervasive harassment of a sexual character. Indeed, “depend[ing] on [the] constellation of surrounding circumstances, expectations, and relationships,” uninvited contact with the private parts of either the victim’s or harasser’s body has often been held to constitute sexual harassment under Title IX. Moreover, the court noted, it is irrelevant that both the victim and the harassers in the present case were male because it is settled law that “[s]ame-sex sexual harassment is actionable under title IX.”
The court concluded that depending on the evidence at trial or summary judgment, the series of incidents where Jon’s underwear was forcibly removed could plausibly constitute “numerous acts of objectively offensive touching.” Such acts plausibly fall outside the list of simple “insults, banter, teasing, shoving, pushing, and gender-specific conduct” which are “understandable . . . in the school setting” and are not actionable under Title IX.