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In Salazar v. South Antonio Independent School District, the U.S. Court of Appeals for the Fifth Circuit held that an educational institution can be liable under Title IX for sexual misconduct committed by its employees, but only when an employee with power to correct the misconduct—other than the wrongdoer himself—is aware of the misconduct and is deliberately indifferent to it. Although the student plaintiff in the case argued an institution could be liable based on a principal’s deliberate indifference to his own misconduct, the court rejected this result as inconsistent with Title IX. The court held: “We discern no congressional intent in Title IX to provide a private cause of action for damages when the only employee or representative of [an institution] who had knowledge of the [misconduct] was the offender.” The court’s ruling ensures that an educational institution—including a college or university—will not be liable under Title IX someone other than the wrongdoer at the institution is aware of misconduct and the institution has a fair opportunity to respond to it, but nonetheless remains deliberately indifferent.

The facts of Salazar are tragic. Continue Reading Title IX Liability Where Only the Wrongdoer Knows of Misconduct?

borkowski_johnHusch Blackwell welcomes Partner John W. Borkowski to the Chicago office. Borkowski joins the firm’s Healthcare, Life Sciences & Education industry team and brings more than 25 years’ experience representing school districts, colleges and universities, as well as companies and non-profits in the education sector.

As a litigator, Borkowski has defended clients as trial counsel in class actions throughout the country and argued appeals in the U.S. Supreme Court and most of the federal courts of appeal. He has also served as a trusted advisor to educational institutions and others on federal and state constitutional, civil rights, funding and policy issues. Continue Reading Husch Blackwell education group welcomes John Borkowski