Common Title IX Litigation Scenarios: A Practitioner's Overview

Title IX is most familiar as the campus disciplinary process: the investigation, the hearing, the finding, the appeal. But for both complainants and respondents who are unable to obtain justice through that administrative process, federal litigation is its own creature, with its own controlling doctrines, its own evidentiary standards, and its own pleading requirements that bear little resemblance to the policy framework that schools apply.

Across both complainant-side and respondent-side practice, five recurring scenarios account for the overwhelming majority of Title IX federal cases. Each has a controlling line of Supreme Court and Sixth Circuit authority, distinct elements, and characteristic defenses. This article walks through each scenario, identifies the controlling cases, and flags where the law has shifted recently or is shifting now.

Scenario One: Deliberate Indifference Claims by Complainants

The most familiar Title IX private right of action arises when a school's response to known sexual harassment is so inadequate that the school itself becomes legally responsible for the harm. The Supreme Court created this cause of action in two cases that together establish the governing framework. Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), held that schools can be held liable for teacher-on-student harassment when an appropriate school official with authority to address discrimination has actual knowledge of harassment and responds with deliberate indifference. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), extended that framework to student-on-student harassment, requiring that the harassment be severe, pervasive, and objectively offensive enough to effectively deny the victim access to educational opportunities.

The Actual Knowledge Requirement

Under Gebser, the school's liability turns on the actual knowledge of an official with authority to take corrective action. Respondeat superior and constructive notice do not suffice: as the Northern District of Ohio explained in Doe I v. Cuyahoga County Community College, 655 F.Supp.3d 669 (N.D. Ohio 2023), Title IX imposes liability only for a recipient's own official decisions and not for its employees' independent actions, and "it would frustrate the purposes of Title IX to permit a damages recovery against a school based on principles of respondeat superior or constructive notice." The Supreme Court in Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), clarified that liability can be established by showing a single school administrator with authority to take corrective action responded with deliberate indifference, but as the Eastern District of Michigan put it in Lipian v. University of Michigan, 453 F.Supp.3d 937 (E.D. Mich. 2020), "applying the actual notice to an appropriate person standard in a Title IX sexual harassment claim is ultimately a matter of who knew what and when."

This element is litigated harder than any other element of a deliberate indifference claim. Schools regularly defend on the basis that the complaint reached the wrong person, or that the person who received the complaint did not have authority to remediate. The plaintiff's case depends on identifying a specific official with both knowledge and authority, and tying the school's inadequate response to that official's decision-making.

The Substantial Control Requirement

The school must also have substantial control over both the harasser and the context of the harassment. Davis held that "direct liability may be imposed on a fund recipient under Title IX on a theory of deliberate indifference to sexual harassment only where the funding recipient has some control over the alleged harassment; a recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action." This requirement is more demanding in the university context than in primary or secondary education because universities have more limited disciplinary authority over adult students. Off-campus conduct, conduct during study abroad, conduct in private social settings, and conduct communicated through social media all present substantial control disputes that turn on the specific facts of each case.

The Sixth Circuit's "Further Actionable Harassment" Requirement

The Sixth Circuit applies an additional element that no other circuit has adopted in the same form. In Kollaritsch v. Michigan State University Board of Trustees, 944 F.3d 613 (6th Cir. 2019), the court held that a Title IX complainant must plead and prove "that the school had actual knowledge of actionable sexual harassment and that the school's deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries." The court identified four elements of what it described as a deliberate-indifference-based intentional tort: knowledge, act, injury, and causation, with the further harassment requirement embedded in the causation element. Critically, the further harassment must be inflicted against the same victim, not against a different student.

The practical effect of Kollaritsch is to make a Title IX claim difficult to maintain when the harassment that prompted the complaint is also the only actionable harassment the plaintiff suffered. A single severe incident, followed by an inadequate institutional response, will often not satisfy Kollaritsch unless the plaintiff can identify further actionable harassment after the school's knowledge. Encounters with the assailant alone are not enough: in Doe v. University of Kentucky, the Sixth Circuit held that allegations of merely encountering an assailant on campus, without details showing the encounters "were sexual, or that they were severe, pervasive, or objectively unreasonable," failed to plead actionable further harassment.

Two recent Sixth Circuit decisions have softened Kollaritsch's edges without overruling it. In S.C. v. Metropolitan Government of Nashville, 86 F.4th 707 (6th Cir. 2023), the court recognized that "student-on-student threats and harassment for participating in a sexual harassment investigation can provide a basis for Title IX liability when a school is deliberately indifferent to those threats," distinguishing Kollaritsch on the ground that retaliatory harassment from peers presents different causation considerations. And in Doe #2 v. Metropolitan Government of Nashville (2022), the court held that when a school's deliberate indifference to a pattern of student-on-student sexual misconduct leads to misconduct against the specific plaintiff, Kollaritsch's causation requirements are satisfied. The Sixth Circuit explained that extending Kollaritsch's same-victim requirement to claims involving patterns of institutional indifference "would thwart" Title IX's purpose by allowing schools to remain deliberately indifferent to widespread discrimination.

Pre-Assault Theories: The Circuit Split

Outside the Sixth Circuit, several courts have recognized a "pre-assault" theory of liability: that a school can be held liable for a sexual assault on its campus when the school maintained a policy of deliberate indifference to known patterns of sexual misconduct that created a heightened risk of the eventual assault. The Ninth Circuit endorsed this theory in Karasek v. Regents of the University of California, 956 F.3d 1093 (9th Cir. 2020), holding that a plaintiff may prevail by showing "the school maintained a policy of deliberate indifference to reports of sexual misconduct, which created a heightened risk of sexual harassment that was known or obvious, in a context subject to the school's control." The Karasek framework focuses on institutional policy, not specific predecessor incidents involving the eventual plaintiff.

The Sixth Circuit has not adopted Karasek's pre-assault framework as such. Doe #2 v. Metropolitan Government of Nashville recognized that a pattern of institutional indifference can satisfy Kollaritsch's causation requirements when that pattern leads to misconduct against the specific plaintiff, but the Sixth Circuit has not gone further to recognize liability based solely on a policy creating heightened risk without a specific causal connection to the plaintiff's harassment. For plaintiffs in the Sixth Circuit, pre-assault arguments are best framed within the Kollaritsch-and-Doe #2 pattern-of-indifference framework rather than imported wholesale from Karasek.

Scenario Two: Erroneous Outcome Claims by Respondents

The respondent-side mirror to deliberate indifference is the erroneous outcome claim. The framework originated in Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994), and the Sixth Circuit adopted it in Doe v. Miami University, 882 F.3d 579 (6th Cir. 2018). Under Doe v. Miami, a respondent must plead two elements: facts sufficient to cast some articulable doubt on the accuracy of the disciplinary proceeding's outcome, and a particularized causal connection between the flawed outcome and gender bias.

The first element typically rests on identifiable procedural irregularities or unexplained discrepancies in the record. The Sixth Circuit's decision in Doe v. Oberlin College, 963 F.3d 580 (6th Cir. 2020), provides a useful example: the plaintiff sufficiently alleged the first element where the college violated its own policy on the timeline for investigation and decision, the hearing panel failed to comment on a flat contradiction between what a classmate told the investigator during the investigation and what she told the hearing panel, and the panel's decision to expel the student was, as the court put it, "arguably inexplicable."

The second element, gender bias, is where respondent claims most often fail. The Sixth Circuit has been clear that generic claims of pressure on universities to be tougher on sexual assault, or claims that adjudicators were affiliated with women's studies programs, do not by themselves satisfy the gender bias element. As the Sixth Circuit explained, "merely being a feminist, being affiliated with a gender-studies program, or researching sexual assault does not support a reasonable inference that an individual is biased against men." Successful pleadings instead identify specific patterns of differential treatment: panel statements suggesting credibility was assessed on gender lines, statistical evidence of outcomes correlating with sex, or external pressure tied to specific federal investigations or campus advocacy targeting male respondents.

Scenario Three: Selective Enforcement Claims by Respondents

Selective enforcement is a related but distinct respondent theory. Where erroneous outcome challenges the result of the disciplinary process, selective enforcement challenges the institution's decision to initiate or pursue the process at all on the basis of the respondent's sex. The Sixth Circuit's decision in Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), is the leading authority. Under Baum, the plaintiff must show that a similarly situated member of the opposite sex was treated more favorably than the plaintiff due to his or her gender.

The comparator requirement is where most selective enforcement claims founder. In Eid v. Wayne State University (6th Cir. 2022), the court held that the complainant in the same proceeding is not a valid comparator for the respondent, because complainant and respondent occupy opposite roles in the investigative process. The proper comparator is a similarly situated member of the opposite sex who engaged in similar conduct and received a more favorable outcome; for a male respondent challenging selective enforcement, that means evidence of a female respondent accused of similar conduct who received a less severe outcome. That evidence is often impossible to assemble without discovery, and discovery is often hard to obtain without first surviving a motion to dismiss. The Sixth Circuit has also emphasized that a claim that a disciplinary system is biased in favor of alleged victims does not equate to gender bias, because sexual assault victims can be both male and female.

Scenario Four: Procedural Due Process at Public Institutions

Respondents at public colleges and universities have a constitutional protection that respondents at private institutions do not: procedural due process under the Fourteenth Amendment, enforceable through 42 U.S.C. Section 1983. The Sixth Circuit has held that state universities must afford students minimum due process protections before issuing significant disciplinary decisions, because suspension implicates a protected property interest, and allegations of sexual assault may impugn a student's reputation and integrity, thus implicating a protected liberty interest.

The Sixth Circuit's decision in Doe v. Baum went further than most circuits on one specific procedural protection: when the university's determination turns on the credibility of the accuser, the accused, or witnesses, cross-examination is constitutionally required. That holding has substantially shaped Title IX procedure at public institutions in the Sixth Circuit and has informed regulatory drafting at the federal level. The Sixth Circuit has reaffirmed in Doe v. Oberlin College (2023) that private colleges are not transformed into state actors for due process purposes while conducting Title IX investigations, leaving private-institution respondents to rely on Title IX itself and on breach-of-contract theories under state law.

Procedural due process claims proceed independently from Title IX claims and have distinct requirements. A Title IX plaintiff can establish school district liability by showing that a single administrator with corrective authority responded to harassment with deliberate indifference. A plaintiff stating a similar claim under Section 1983 for a violation of the Equal Protection Clause by a school district must satisfy the more demanding Monell standard: that the constitutional injury was the result of a municipal custom, policy, or practice. The two theories are often pleaded in the alternative.

Scenario Five: Title IX Retaliation

Title IX retaliation claims arise when an institution takes adverse action against someone who complained of sex discrimination or who participated in a Title IX proceeding. The Supreme Court recognized the cause of action in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), holding that Title IX's prohibition on sex discrimination encompasses retaliation against persons who complain of such discrimination. Title IX retaliation claims are increasingly common and increasingly important after Cummings, because as discussed below, even a plaintiff who cannot recover emotional distress damages on a deliberate indifference claim may still recover on a retaliation theory framed around lost educational benefits.

The Four-Element Test

The Sixth Circuit articulated the elements of a Title IX retaliation claim in Bose v. Bea, 947 F.3d 983 (6th Cir. 2020): the plaintiff must show (1) she engaged in protected activity, (2) the funding recipient knew of the protected activity, (3) she suffered an adverse school-related action, and (4) a causal connection exists between the protected activity and the adverse action. Protected activity has been defined broadly: actively complaining of or opposing alleged discrimination on the basis of sex satisfies the first element. Filing a Title IX complaint and persevering through Title IX proceedings both qualify as protected activities.

One important Sixth Circuit nuance for plaintiffs: the court continues to apply a pre-Nassar "motivating factor" causation standard for Title IX retaliation rather than the "but-for" standard that the Supreme Court adopted for Title VII retaliation in University of Texas Southwestern Medical Center v. Nassar. In Doe v. University of Kentucky, 111 F.4th 705 (6th Cir. 2024), the court reaffirmed that protected activity need only be a motivating factor of the adverse action, which is a meaningfully lighter burden than the but-for standard.

Who Is Protected

The scope of Jackson protection extends beyond students. The Sixth Circuit has applied Title IX retaliation analysis to university employees by analogy to Title VII retaliation. In Goldblum v. University of Cincinnati, 62 F.4th 244 (6th Cir. 2023), the court reviewed a Title IX retaliation claim by a university employee under the analogous Title VII retaliation framework. However, the Sixth Circuit has also held in Garrett v. Ohio State University, 60 F.4th 359 (6th Cir. 2023), that there is "neither individual liability nor respondeat superior liability under Title IX"; the educational institution is responsible only for its own official decisions.

The 2024 Regulations in Flux

The U.S. Department of Education's 2024 Title IX regulations at 34 C.F.R. Section 106.71 define retaliation broadly and require recipients to prohibit retaliation, including peer retaliation. But the 2024 final rule has been the subject of substantial litigation. The Eastern District of Kentucky in Tennessee v. Cardona, 737 F.Supp.3d 510 (E.D. Ky. 2024), granted a preliminary injunction in June 2024. In January 2025, the same court in Tennessee v. Cardona, 762 F.Supp.3d 615 (E.D. Ky. 2025), vacated the regulations as exceeding the Department's statutory authority and violating the Spending Clause by failing to provide unambiguous notice. As of May 2026, the regulatory landscape remains unsettled, and practitioners should consult current guidance on which framework applies in a given case and forum.

Damages After Cummings v. Premier Rehab Keller

The most consequential development in Title IX litigation in the last four years is the Supreme Court's 2022 decision in Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022). Cummings held that emotional distress damages are not recoverable under Spending Clause statutes, including Title IX, because funding recipients would not have been aware they faced such liability when accepting federal funds. The Sixth Circuit confirmed the application to Title IX in S.C. v. Metropolitan Government of Nashville, 86 F.4th 707 (6th Cir. 2023), explaining that "Cummings leaves little doubt that emotional distress damages are no longer permitted for violations of Title IX." The Southern District of Ohio, in Doe 162 v. Ohio State University, 796 F.Supp.3d 476 (S.D. Ohio 2025), held as a matter of first impression that the contract-law-analogy test "straightforwardly forecloses emotional-distress damages for private Title IX suits," rejecting arguments that schools had notice of such damages or that eliminating them would gut enforcement.

What remains available to Title IX plaintiffs is meaningful, but it requires reframing. Economic damages based on lost educational benefits remain recoverable: tuition paid for an education the plaintiff could no longer access, costs of transferring to another institution, lost scholarship value, and lost future earnings tied to the disrupted academic trajectory. Injunctive and declaratory relief continue to be available remedies. Attorney's fees remain available through fee-shifting provisions. And critically, in Doe v. University of Kentucky, 111 F.4th 705 (6th Cir. 2024), the Sixth Circuit confirmed that the fact that a student could not recover emotional distress damages under Title IX did not bar her retaliation claim because the discrimination itself constitutes a cognizable harm separate from emotional distress.

The practical effect of Cummings is that Title IX cases that once would have led with emotional distress damages now require a more disciplined economic damages theory. Cases involving plaintiffs who transferred schools, withdrew, or lost specific opportunities are stronger than they were relative to cases that depended primarily on emotional injury. Pleading strategy should identify the specific educational benefits lost and the dollar value of those losses at the outset.

Cross-Cutting Issues: Scope, Accrual, and Statute of Limitations

Who Can Sue

The Sixth Circuit's decision in Snyder-Hill v. Ohio State University, 48 F.4th 686 (6th Cir. 2022), substantially expanded the reach of Title IX's private right of action. The court held as a matter of first impression that a non-student and non-employee can bring a Title IX claim if they were subject to discrimination while participating, or at least attempting to participate, in the funding recipient's education program or activity. The decision swept in summer camp attendees, contract referees, and visiting high school students. Practitioners evaluating potential plaintiffs should not assume that non-enrollment forecloses a Title IX claim.

The Discovery Rule and Statute of Limitations

Title IX has no federal statute of limitations of its own. Federal courts borrow the forum state's personal injury limitations period. In Ohio, that is two years; in Tennessee, it is one year, per Bannister v. Knox County Board of Education, 49 F.4th 1000 (6th Cir. 2022). In Ohio specifically, the Sixth Circuit confirmed in Pryor v. Ohio State University, 139 F.4th 536 (6th Cir. 2025), that the two-year personal injury period applies even to claims arising from childhood sexual abuse, rejecting arguments that Ohio's longer 12-year statute for child sex abuse should apply to Title IX claims.

The single most important holding for survivors of historical abuse is Snyder-Hill's adoption of the discovery rule. The Sixth Circuit held that a Title IX claim does not accrue until the plaintiff knows or has reason to know that the defendant institution injured him or her. The distinction matters most in cases where the harassment occurred years or decades before the plaintiff understood that the institution itself, rather than only the individual perpetrator, had played a role in the harm. The discovery rule is what permitted the Ohio State University serial-abuse claims to proceed despite the underlying conduct occurring in earlier decades. Counsel evaluating older cases should not assume a statute of limitations defense will succeed without analyzing when the plaintiff acquired actual or constructive knowledge of the institution's role.

The Bottom Line

The five scenarios above account for the substantial majority of Title IX federal cases, but the analysis is rarely as clean as a single-scenario framing suggests. Most actual cases combine elements: a complainant's deliberate indifference claim paired with a retaliation claim covering the institution's response to her complaint, or a respondent's erroneous outcome claim paired with a Section 1983 procedural due process claim at a public university. The pleading decisions, the choice of forum, and the framing of damages all turn on how the various theories interact in the specific facts of the case.

What has shifted recently — Cummings on damages, Snyder-Hill on accrual, Tennessee v. Cardona on the 2024 regulations, the continued narrowing-or-extending of Kollaritsch in subsequent Sixth Circuit decisions — has made experienced counsel more important to plaintiffs and respondents alike. The administrative process at the school is one universe, with its own procedures and outcomes. Federal litigation is another, with controlling doctrines that the school's process never engages with directly. Cases that look strong in the school's process may collapse in federal court, and cases that look weak in the school's process may have legs in litigation. Evaluating which is which is the threshold practitioner judgment.

Sobel Law Solutions represents both complainants and respondents in Title IX matters nationwide, including federal litigation, advising during institutional proceedings, hearing officer service for institutions, and independent Title IX investigations. Initial consultations are free and confidential.