The National Women’s Law Center and Arnold & Porter Kaye Scholer LLP filed an amicus brief in the Sixth Circuit on behalf of almost 30 organization on June 5, 2019.
The case involves a female softball player, Lauren Kesterson, who was raped by her softball coach’s son and reported it to her coach and then several other school officials at Kent State. The coach failed to report Lauren’s rape to the Title IX office as she was supposed to, and instead asked Lauren not to discuss her rape and retaliated against her. The school did not investigate the hostile environment Lauren faced until over a year later when she and her dad finally complained to the Title IX office. Lauren sued under Title IX, among other laws, but the district court dismissed the case because it held that the university did not have “actual knowledge” of the sexual assault under Title IX and thus a duty to respond until the Title IX office was notified.
The amicus brief makes clear that while the Supreme Court held that an “appropriate person” with authority to take corrective action must be notified in cases of employee-student harassment before a school can be liable in damages for its unreasonable response, that standard is not legally or practically appropriate in matters of student-on-student sexual harassment. Imposing a burden on students who face sexual harassment to tell the “right” person would create yet another barrier for students to come forward and ask their schools for help. And in this case, even under the “appropriate person” test, Lauren’s coach was such a person who was obligated to report the rape to the Title IX office for investigation and could help Lauren.