Abuse and Title IX

Last week New York passed a new statute of limitations. It helps the victims of sexual abuse. They now have more time to bring a civil suit against their abuser.

Under the old law victims had to sue by the time they were twenty-eight. Now they may sue until they are fifty-eight.

The new law has a “look back” provision. It helps victims whose cases expired under the old law before they could bring them. Now they have an extra year to file their claims. 

Connecticut already has a statute like New York’s new one. It, too, aids the victims of sexual abuse. Connecticut General Statute § 52-577d covers people that suffered sexual abuse, exploitation or assault as a minor. They have thirty years to sue. The clock begins to run on their twenty-first birthday.   

Sexual Abuse in a Case in Connecticut

This statute plays a role in a case currently in Connecticut’s Superior Court, Nicola Briggs v. Kent School Corporation. In 2017 a forty-two-year old woman filed suit against the Kent School. She alleged that a teacher named Fenner began sexual relations with her while she was a student at Kent in the fall of 1987. When the school’s officials learned about it in May, 1988, they fired the teacher. Ms. Briggs continued her classes and graduated on time.  

As a plaintiff thirty years later, she did not sue her accuser for abuse. Instead, she sought to hold Kent responsible. Her complaint presented three counts, two in negligence. The first claimed that her school owed its students freedom from sexual abuse. Ms. Briggs argued that the school failed to fulfill this duty; a teacher did have relations with her.

Her second count argued for negligence in how officials acted once the abuse came to light. She claimed Kent owed her a school free from harassment after the abuse. Ms. Briggs argues the school failed to fulfill this duty as well: Kent’s officials let teachers and other students cause her emotional distress over Fenner’s behavior.

It is fortunate for victims like Ms. Briggs that Connecticut, New York and other states offer a path to justice many years after events. They do have another, but to use it they must act more quickly. 

Federal Cases Against Sexual Harassment

Title IX outlaws discrimination on the basis of sex. It applies to schools and other organizations that receive money from the federal government. Private schools like Kent, although they charge tuition, generally take such funds and are thus covered.

Like § 52-577d, Title IX has a statute of limitations, but it is much shorter. It follows Connecticut’s time limit on suits for personal injuries. Victims must bring their action within two years of the harm.

Ms. Briggs could have taken Kent to federal court under Title IX by 1989. Everyone’s memory of events would have been fresher. This should have made it easier for her to make her case. But she would have faced other challenges.

Imputed Knowledge v. Actual Knowledge

Ms. Briggs would have faced two hurdles in her claims of sexual discrimination, hurdles she does not face now for sexual assault. The first would have been the issue of what the school’s officials knew, and when they knew it. The second, and higher, hurdle would have been the issue of the harm she suffered.

The United States Department of Education oversees the programs that accept the federal government’s money. When a student claims sexual discrimination in one of those programs, the Department’s Office of Civil Rights investigates. It may hold the school liable if it finds that officials did not do enough about discrimination they ought to have known about.

Students that take their claim to court instead face a higher bar. Since they seek money damages for discrimination, they must prove more than OCR. They must show that officials had actual knowledge of the discrimination and did not do enough about it. In the Supreme Court’s words, officials must have stood “deliberately indifferent.”

Ms. Briggs’ first claim would have had difficulty clearing that hurdle by 1989. From the allegations of her complaint, it appears that Kent’s officials did not know about Fenner’s misconduct for many months. When they did learn about it, they seemed to have taken reasonable and immediate action to end it. Ms. Briggs could still have argued that they carelessly allowed his original misconduct to begin and grow. The school would have answered that its officials had no responsibility under Title IX for conduct they knew nothing about. 

Personal Injury v. Access to an Education

Even had she won that argument, Ms. Briggs would have faced a higher hurdle. In her lawsuit in Superior Court she claimed that after May 1988 Kent’s negligence led to emotional distress. She alleged the following harassment by Kent’s staff: one teacher called her “obviously crazy”; another told her she had ‘sinned’; others moved to the other side of the hallway when she walked in their direction, or prayed for Fenner at chapel services, or tried to make her feel responsible for his later breakdown. She alleged harassment by students, too: they verbally abused her, or threw soda cans at her from the windows above the dining hall. Nobody would room with her.    

These allegations may carry the day for sexual abuse. They may not have passed Title IX’s test for sexual harassment. The reason has to do with the federal statute’s purpose.

Title IX is a civil rights law. Schools like Kent cannot take federal money and allow discrimination to affect their classes and service. Victims recover compensation when they show that harassment kept them from taking part.

But before a jury weighs signs of harassment, the victim must show they could no longer go on. That evidence can take many forms. A suicide note might be a sign the student’s suffering kept them the benefits of school. Falling grades would normally indicate they were no longer taking part. Transfer to a different school would almost certainly show that.

Ms. Briggs’ complaint claims that Kent’s carelessness caused her emotional trauma and distress. It alleges many instances of harassment from teachers and students. But it offers no sign the negligence kept her from Kent’s program. Her grades never dropped. She finished her courses on time. She graduated with her class.

The Bottom Line

Ms. Briggs suffered. She seeks to hold Kent responsible for emotional trauma, not falling grades. She claims sexual abuse, not sexual discrimination. For redress she took the only path open to her.

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