Doe, Jane v. University IL

In the

United States Court of Appeals

For the Seventh Circuit

No. 96-3511

JANE DOE, a minor, JOHN DOE, individually and as

father and next friend of Jane Doe, and JANET DOE,

individually and as mother and next friend of

Jane Doe,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervening Appellee,

v.

UNIVERSITY OF ILLINOIS, a public corporation,

Defendant-Appellant.

No. 96-4148

JANE DOE, a minor, JOHN DOE, individually and as

father and next friend of Jane Doe, and JANET DOE,

individually and as mother and next friend of

Jane Doe,

Plaintiffs-Appellants,

v.

UNIVERSITY OF ILLINOIS, a public corporation,

Defendant-Appellee.

Appeals from the United States District Court

for the Central District of Illinois.

No. 96-1129--Michael M. Mihm, Chief Judge.

ARGUED SEPTEMBER 3, 1997--DECIDED MARCH 3, 1998

Before CUMMINGS, COFFEY and EVANS, Circuit Judges.*

CUMMINGS, Circuit Judge. Appellee/cross-appellant

Jane Doe was a student at University High School in

Urbana, Illinois./1 Although University High is a

public school, it is affiliated with the defendant

University of Illinois, which has responsibility

for overseeing the school’s administration. During

a period from January 1993 through early May 1994,

while a student at University High, Jane Doe was

the victim of an ongoing campaign of verbal and

physical sexual harassment perpetrated by a group

of male students at the school. Doe and her parents

complained on numerous occasions to officials of

both the high school (including two successive

school Principals, a counselor, the Assistant

Director, and the person appointed as intake

officer for sexual harassment complaints) and the

University of Illinois (including two Vice

Chancellors, two University police officials, the

Ombudsperson, and the liaison person between the

University and the high school), but those

officials allegedly did not do nearly enough to

combat the harassment.

Because the sufficiency of Doe’s allegations of

sexual harassment is not at issue on this appeal,

it is not necessary to describe in detail the

campaign of harassment and intimidation to which

she was subjected by the self-styled "posse" of

male students. It is enough to note here that

according to the Magistrate Judge’s Report and

Recommendations, the male students’ conduct

included unwanted touching, epithets, and the

deliberate exposure of one student’s genitals in

front of Doe. Although school officials did suspend

two of the male students for ten days and transfer

one student out of Doe’s biology class, Doe claims

that the school and the University took little or

no meaningful action to punish the sexual

harassment or to prevent further occurrences.

Indeed, the complaint alleges that some

administrators suggested to Doe that she herself

was to blame for the harassment, and that it was

she who ought to adjust her behavior in order to

make it stop. On one occasion, University High’s

Assistant Director told Doe and two of her friends

to start acting like "normal females" and scolded

them for making allegations of harassment that

might injure some of the male students’ futures.

Ultimately, Jane Doe’s parents removed her from the

school as a result of the campaign of harassment

and sent her to a private high school in another

state.

On May 24, 1995, Doe and her parents filed this

suit against the University of Illinois and various

individual officials of University High and the

University of Illinois. They alleged violations of

20 U.S.C. secs. 1681 et seq. (Title IX) and of

42 U.S.C. sec. 1983, and sought damages under the

Illinois Family Expense Statute, 750 ILCS 65/15.

After the plaintiffs voluntarily dismissed certain

claims, Magistrate Judge David G. Bernthal

entertained the defendants’ motion to dismiss all

of the remaining claims pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). In a

lengthy Report and Recommendations, he recommended

that all of the remaining claims be dismissed. He

further recommended that Jane Doe be granted leave

to refile her claim against the University of

Illinois for intentional sexual discrimination in

violation of Title IX, but that all other claims be

dismissed with prejudice.

In an order dated March 29, 1996, Chief Judge

Mihm adopted the Magistrate Judge’s Report and

Recommendations and dismissed all claims, allowing

Doe leave to refile her individual Title IX claim

against the University.

On April 12, 1996, the University requested that

the district court reconsider its decision to allow

Doe to replead the Title IX claim, in light of the

United States Supreme Court’s decision in Seminole

Tribe of Florida v. Florida, 116 S. Ct. 1114, which

had been made public on March 27, 1996. The

University’s motion for reconsideration asserted

for the first time/2 that the Title IX claim

against the University was barred by the Eleventh

Amendment to the United States Constitution,

because Title IX did not validly abrogate the

States’ (and thus the University’s) sovereign

immunity from suit. The district court denied the

University’s motion for reconsideration on

September 25, 1996, holding that both Title IX and

the statute that expressly subjected States to suit

for violations of Title IX were enacted at least in

part pursuant to Congress’ powers under Section 5

of the Fourteenth Amendment, and therefore that

Congress validly abrogated the States’ sovereign

immunity with respect to Title IX suits.

The University appeals the district court’s

rejection of its Eleventh Amendment defense.

Plaintiff Jane Doe also appeals the court’s

dismissal of her Title IX claim against the

University pursuant to Federal Rule of Civil

Procedure 12(b)(6). On Doe’s motion, the two

appeals were consolidated. For the reasons set

forth below, this Court affirms the district

court’s holding with respect to the University’s

Eleventh Amendment defense and reverses the court’s

holding with respect to Jane Doe’s Title IX claim.

I. THE ELEVENTH AMENDMENT

IMMUNITY ISSUE

The Eleventh Amendment provides, "The Judicial

power of the United States shall not be construed

to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by

Citizens of another State, or by Citizens or

Subjects of any Foreign State." The University

argues that it is immune from federal court suits

under Title IX because it has not consented to such

suits, and Congress has not validly abrogated its

Eleventh Amendment immunity in the context of Title

IX. The district court disagreed, holding in its

denial of the University’s motion for

reconsideration that Congress, in enacting Title IX

and rendering it enforceable against the States

(via the Equal Rights Remedies Equalization Act

("Equalization Act"), 42 U.S.C. sec. 2000d-7), had

unequivocally and validly abrogated the States’

sovereign immunity with regard to suits under Title

IX./3

A. The Eleventh Amendment’s Application to Federal

Question Suits

Jane Doe argues in response to the University’s

immunity claim that the Eleventh Amendment does not

give States immunity from federal question suits.

Doe observes that the explicit text of the

Amendment mentions only suits brought against a

State by citizens of another State or of a foreign

country. Based on this literal reading of the

Amendment and a number of dissenting and concurring

Supreme Court opinions, Doe urges this Court to

hold that Eleventh Amendment immunity is not

present in this case, which involves a federal

question suit by a citizen of Illinois against the

University of Illinois. Even were this Court

inclined so to hold, however, it would not be free

to do so. In Seminole Tribe of Florida v. Florida,

116 S. Ct. 1114, 1122, the Supreme Court reiterated

its view that the Eleventh Amendment extends beyond

its literal language to give the States sovereign

immunity against all suits by individuals for

damages. See id. at 1122 (citing Hans v. Louisiana,

134 U.S. 1); but see Seminole Tribe, 116 S. Ct. at

1137 (Stevens, J., dissenting) (arguing that Hans

did not hold suits by citizens of the State to be

sued barred by the Eleventh Amendment); id. at 1146

(Souter, J., dissenting) (stating that Hans was

incorrectly decided and that the Eleventh Amendment

bars only diversity suits against States). Doe’s

contention that the Eleventh Amendment does not

apply in this case is therefore without merit.

B. Abrogation of Eleventh Amendment Immunity

Congress may abrogate States’ Eleventh Amendment

immunity if it both unequivocally expresses its

intent to do so and acts pursuant to a valid

exercise of power. Seminole Tribe, 116 S. Ct. at

1123. The University concedes, as it must, that

Title IX and the Equalization Act, read together,

unequivocally state Congress’ intent to abrogate

the States’ Eleventh Amendment immunity, so the

dispute centers around whether Congress acted

pursuant to a valid exercise of power.

In Seminole Tribe, the Supreme Court held that

the Indian Commerce Clause of the Constitution

(art. I, sec. 8, cl. 3) does not give Congress the

power to abrogate the States’ Eleventh Amendment

immunity. Id. at 1131. More broadly, the Court

expressly overruled its prior decision that the

Interstate Commerce Clause (art. I, sec. 8, cl. 3)

did give Congress the power to abrogate. Id. at

1128 (overruling Pennsylvania v. Union Gas Co., 491

U.S. 1). The Court stated that the powers granted

to Congress in Article I of the Constitution could

not be used to expand federal court jurisdiction

under Article III at the expense of the States’

Eleventh Amendment immunity. Id. at 1132. The Court

reaffirmed, however, the principle that Congress

may abrogate the States’ Eleventh Amendment

immunity when it acts pursuant to Section 5 of the

Fourteenth Amendment./4 Id. at 1125, 1128 (citing

Fitzpatrick v. Bitzer, 427 U.S. 445). Because the

Fourteenth Amendment was "adopted well after the

adoption of the Eleventh Amendment and the

ratification of the Constitution," it "operated to

alter the preexisting balance between state and

federal power achieved by Article III and the

Eleventh Amendment." Id. at 1128. When acting

pursuant to its powers under Section 5 of the

Fourteenth Amendment, therefore, Congress can

abrogate the States’ immunity from suit.

Neither the Supreme Court nor this Court has

resolved the question of whether Title IX was

enacted pursuant to Congress’ Section 5 powers. See

Franklin v. Gwinnett County Pub. Schs., 503 U.S.

60, 75 n.8 (declining to decide "which power

Congress utilized in enacting Title IX"); Smith v.

Metropolitan Sch. Dist. Perry Township, 128 F.3d

1014, 1028 (7th Cir. 1997) (holding that "Title IX

was passed pursuant to Congress’ Spending Clause

power" but not addressing possible alternative

basis in Section 5). The district court in the

present case held that Title IX, while it is

undoubtedly an exercise of Congress’ Article I

Spending Clause power, was also enacted pursuant to

Section 5 of the Fourteenth Amendment. The court

further held that the Equalization Act, which

expressly made the States subject to suits to

enforce Title IX, "was clearly enacted pursuant to

the Fourteenth Amendment." Relying upon this

Court’s decision in EEOC v. Elrod, 674 F.2d 601,

608 (7th Cir. 1982), the district court stated the

standard for determining whether a statute was

enacted pursuant to the Fourteenth Amendment as

"whether the objectives of the legislation are

within Congress’ power under the amendment." The

court then concluded that "since the objective of

Title IX is to prevent discrimination based on sex

in federally funded programs and preventing

discrimination is central to Congress’ power under

the Fourteenth Amendment, . . . Title IX was also

enacted pursuant to sec. 5 of the Fourteenth

Amendment."

The University of Illinois asserts here that

Seminole Tribe and other Supreme Court decisions

compel this Court to overrule Elrod and hold that

the proper inquiry is not whether the statute at

issue is within Congress’ power under the

Fourteenth Amendment, but rather whether Congress

in fact enacted the statute pursuant to that power.

Because neither Title IX nor its legislative

history unambiguously states that Congress intended

to act pursuant to Section 5 of the Fourteenth

Amendment,/5 the University reads the Supreme

Court’s holdings in Pennhurst State School &

Hospital v. Halderman, 451 U.S. 1, and Gregory v.

Ashcroft, 501 U.S. 452, as forbidding courts from

inferring such an intent.

The University quotes at length from Gregory

interpreting Pennhurst to hold that courts "should

not quickly attribute to Congress an unstated

intent to act under its authority to enforce the

Fourteenth Amendment." Gregory, 501 U.S. at 469.

The University argues that this principle from

Pennhurst means that this Court should only find

that Congress has enacted legislation pursuant to

Section 5 when Congress has stated unambiguously

that it intended to do so. This Court held in

Elrod, however, that Pennhurst was inapposite to

the inquiry into a statute’s constitutional

grounding in Section 5, primarily because it was a

case involving statutory construction, rather than

"congressional authority to legislate." Elrod, 674

F.2d at 608 n.8./6 In other words, the question in

Pennhurst was whether Congress intended a

particular result, regardless of the constitutional

grant of power under which it acted. In the present

inquiry, by contrast, the intended result (of

subjecting States to suit for violations of Title

IX’s substantive provisions) is clear, and the

grant of power under which Congress acted is at

issue.

Thus the University’s reliance upon the Gregory

Court’s reading of Pennhurst to the effect that,

"[b]ecause Congress nowhere stated its intent to

impose mandatory obligations on the States under

its sec. 5 powers, [the Court] concluded that

Congress did not do so," is misplaced. What the

Pennhurst Court held that Congress did not do was

"impose mandatory obligations," not "[act] under

its sec. 5 powers." The Supreme Court reached a

similar conclusion in EEOC v. Wyoming, 460 U.S.

226, 243 n.18, where it held that Pennhurst was

irrelevant "to the question of whether . . .

Congress acted pursuant to its powers under sec.

5," because, in terms of the substantive

obligations imposed by the statute, "there [was] no

doubt what the intent of Congress was."

The University identifies in the Supreme Court’s

decisions an "increasingly strict view of

congressional waivers of sovereign immunity." In

support of this proposition, it cites Pennhurst,

Gregory, and Seminole Tribe. The University’s

reliance upon the former two cases is curious,

given that neither decided an issue of sovereign

immunity. It is, on the other hand, clear that

Seminole Tribe contracted Congress’ power to

abrogate the States’ Eleventh Amendment immunity.

Neither that case nor any other, however, compels

this Court to abandon the analysis employed in

Elrod. Indeed, other courts of appeals, in

decisions reached after Seminole Tribe, have

adhered to an analysis very similar to that in

Elrod for determining whether Congress acted

pursuant to its Section 5 powers.

In Crawford v. Davis, 109 F.3d 1281 (8th Cir.

1997), the Eighth Circuit explicitly held, as this

Court does today, that Title IX was enacted

pursuant to Section 5. Id. at 1283. In so deciding,

the court articulated its inquiry as "whether

Congress could have enacted the legislation at

issue pursuant to a constitutional provision

granting it the power to abrogate." Id. The court

went on to state, "As long as Congress had such

authority as an objective matter, whether it also

had the specific intent to legislate pursuant to

that authority is irrelevant." Id.

Similarly, the Sixth Circuit recently reaffirmed

an earlier decision that the Equal Pay Act was

enacted pursuant to Section 5. Timmer v. Michigan

Dep’t of Commerce, 104 F.3d 833, 838-839 (6th Cir.

1997) (citing Marshall v. Owensboro-Daviess County

Hosp., 581 F.2d 116, 119 (6th Cir. 1978)). The

court recognized that Congress made no explicit

statement of the constitutional basis for its

legislation, but held that "[i]t was not necessary

for Congress to expressly rely on sec. 5 in

exercising its power because such power clearly

existed." Id. at 839 (citation omitted). The Sixth

Circuit in Timmer confronted the same arguments the

University raises in this case--that some

combination of the Supreme Court holdings in

Pennhurst and Seminole Tribe required a "clear

statement" from Congress before a court could find

that Congress acted pursuant to Section 5. The

Sixth Circuit rejected those arguments, and this

Court agrees with both its reasoning and its

conclusion. See also Clark v. California, 123 F.3d

1267, 1270 (9th Cir. 1997) (stating that for

Eleventh Amendment abrogation purposes, "a statute

is ’appropriate legislation’ to enforce the Equal

Protection Clause if the statute ’may be regarded

as an enactment to enforce the Equal Protection

Clause, [if] it is plainly adapted to that end and

[if] it is not prohibited by but is consistent with

the letter and spirit of the constitution’")

(quoting Katzenbach v. Morgan, 384 U.S. 641, 651).

Aside from the decisions of other circuits

utilizing an approach very similar to that in

Elrod, there is nothing odd in the proposition that

Congress may have acted pursuant to more than one

of its sources of power in enacting a single piece

of legislation. In Elrod itself, this Court

observed that the statute at issue there, the Age

Discrimination in Employment Act, "follows the

familiar pattern of contemporary civil rights acts

in grounding prohibitions against private parties

in the Commerce Clause, while reaching government

conduct by the more direct route of the Fourteenth

Amendment." Elrod, 674 F.2d at 604; see also

Fullilove v. Klutznick, 448 U.S. 448, 473 (finding

that Congress used an "amalgam" of its powers in

enacting minority business enterprise provision of

Public Works Employment Act of 1977), overruled on

other grounds by Adarand Constructors, Inc. v.

Pena, 515 U.S. 200. It is equally sensible that

Congress, in using federal educational funds as the

core of Title IX, should use its Spending Clause

powers to reach private actors and its Fourteenth

Amendment powers to reach the States.

This conclusion answers the argument of the Fifth

Circuit that Title IX’s use of federal funds as a

lever to insure compliance with its anti-

discrimination objectives indicates that Congress

could not have been acting under its Fourteenth

Amendment powers. See Rowinsky v. Bryan Indep. Sch.

Dist., 80 F.3d 1006, 1012 n.14 (5th Cir. 1996)

(noting that imposing Title IX liability on a

school that receives federal but not State funds

would "push the limits of the Fourteenth

Amendment"), certiorari denied, 117 S. Ct. 165. A

chronological perspective reinforces this view. It

is not at all unlikely that Congress, perceiving

the possible limits upon its Fourteenth Amendment

power over non-State actors, initially chose to use

its Spending Clause power to bind such actors to

the requirements of Title IX. When Congress

subsequently chose, via the Equalization Act, to

make those same strictures more readily enforceable

against State-run schools, it used the already

existing federal funds framework of Title IX.

Congress’ consistent use of federal funds as the

"trigger" for Title IX coverage, however, does not

mean that it did not also intend to act pursuant to

its acknowledged powers over State actors granted

by Section 5 of the Fourteenth Amendment. The Fifth

Circuit’s approach would turn a purely efficient

decision to utilize an existing statutory scheme

into a declaration that the Fourteenth Amendment

was not involved in an enactment that, at least as

it applies against the States, is squarely within

the purview of that Amendment.

This Court, therefore, reaffirms the analysis we

used in Elrod and applies it here. The appropriate

question is, were "the objectives of [Title IX] .

. . within Congress’ power under the [Fourteenth]

amendment?" See Elrod, 674 F.2d at 608. The answer

is, quite plainly, that they were. As the court

below noted (quoting Cannon v. University of

Chicago, 441 U.S. 677, 678), protecting Americans

against "invidious discrimination of any sort,

including that on the basis of sex," is a central

function of the federal government. Prohibiting

"arbitrary, discriminatory government conduct . .

. is the very essence of the guarantee of ’equal

protection of the laws’ of the Fourteenth

Amendment." Elrod, 674 F.2d at 604. Title IX

prohibits such discriminatory government conduct on

the basis of sex when it occurs in the context of

State-run, federally funded educational programs

and institutions. This Court holds, therefore, that

Congress enacted Title IX and extended it to the

States, at least in part, as a valid exercise of

its powers under Section 5 of the Fourteenth

Amendment. For that reason, Congress validly

abrogated the States’ Eleventh Amendment immunity

from suit when it passed the Equalization Act

expressly making States subject to suits to enforce

Title IX.

In light of the foregoing conclusion that

Congress validly abrogated the States’ immunity, it

is unnecessary to resolve Jane Doe’s alternative

claim that the University affirmatively waived its

Eleventh Amendment immunity by choosing to accept

federal funds under Title IX.

II. THE TITLE IX ISSUE

A. Standard for Reviewing Motion to Dismiss

In reviewing a grant of dismissal pursuant to

Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief can be

granted, this Court must take as true all factual

allegations in the plaintiff’s pleadings and draw

all reasonable inferences in her favor. Antonelli

v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995).

Such a motion may be granted only if it appears

beyond a doubt from the pleadings that the

plaintiff is unable to prove any set of facts that

would entitle her to relief. Moss v. Healthcare

Compare Corp., 75 F.3d 276, 279 (7th Cir. 1996). We

review the district court’s grant of a motion to

dismiss de novo. Sidney S. Arst Co. v. Pipefitters

Welfare Educ. Fund, 25 F.3d 417, 419 (7th Cir.

1994).

B. Title IX Background

Title IX 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." 20 U.S.C. sec. 1681. As noted in Part

I above, the Civil Rights Remedies Equalization

Act, 42 U.S.C. sec. 2000d-7(a)(1), expressly made

the States subject to suits to enforce the

guarantees of Title IX.

It is well settled that sexual harassment of a

student in a federally funded educational program

or activity, if it is perpetrated by a teacher or

other employee of the funding recipient, can render

the recipient liable for damages under Title IX.

See Franklin v. Gwinnett County Pub. Schs., 503

U.S. 60, 63-64, 76; Smith v. Metropolitan Sch.

Dist. Perry Township, 128 F.3d 1014, 1021 (7th Cir.

1997). What is less clear, and what is before this

Court today, is whether a school (or other

educational fund recipient) can be liable for

failing to take prompt, appropriate action to

remedy known sexual harassment of one student by

other students. Three courts of appeals have

considered the question, with two finding no

liability, see Davis v. Monroe County Bd. of Educ.,

120 F.3d 1390 (11th Cir. 1997) (en banc); Rowinsky

v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.

1996), certiorari denied, 117 S. Ct. 165, and one

finding such liability if the school knew or should

have known that the harassment was occurring, see

Brzonkala v. Virginia Polytechnic Inst. & State

Univ., 132 F.3d 949 (4th Cir. 1997). Further, a

number of district courts have found such liability

to exist under Title IX. See, e.g., Doe v.

Londonderry Sch. Dist., 970 F. Supp. 64, 74 (D.N.H.

1997); Nicole M. v. Martinez Unified Sch. Dist.,

964 F. Supp. 1369, 1377 (N.D. Cal. 1997); Bruneau

v. South Kortright Cent. Sch. Dist., 935 F. Supp.

162, 173 (N.D.N.Y. 1996); Wright v. Mason City

Community Sch. Dist., 940 F. Supp. 1412, 1419-1420

(N.D. Iowa 1996); Bosley v. Kearney R-1 Sch. Dist.,

904 F. Supp. 1006, 1023 (W.D. Mo. 1995).

The district court in the present case, ruling

without consideration of any court of appeals

decisions on the issue,/7 held that the University

could be liable for failing to take action to

address Doe’s harassment, but only if Doe alleged

(as the court believed she had not done) that

school and University officials’ failure to respond

"resulted from the University’s sexual

discrimination against her." In other words, the

court held that the University’s allegedly

intentional failure to act in the face of knowledge

of the sexual harassment was not sufficient to

sustain Title IX liability; in the court’s view,

Doe needed to allege that the failure arose out of

an intent by the University to discriminate on the

basis of sex.

For reasons set forth below, this Court holds

that a Title IX fund recipient may be held liable

for its failure to take prompt, appropriate action

in response to student-on-student sexual harassment

that takes place while the students are involved in

school activities or otherwise under the

supervision of school employees, provided the

recipient’s responsible officials actually knew

that the harassment was taking place. We reject the

district court’s further requirement that

plaintiffs in such cases plead or prove that the

recipient, or any of its officials, failed to

respond as a result of sexually discriminatory

intent. The failure promptly to take appropriate

steps in response to known sexual harassment is

itself intentional discrimination on the basis of

sex, and so, once a plaintiff has alleged such

failure, she has alleged the sort of intentional

discrimination against which Title IX protects.

C. Title IX Liability

Because today’s holding is inconsistent with the

decisions of two of the three other courts of

appeals that have directly addressed the issue, it

is appropriate that this Court should explain the

grounds for its disagreement with those decisions.

The Fifth Circuit in Rowinsky, 80 F.3d at 1006,

held that a school’s alleged failure to respond

sufficiently to sexual harassment of a student by

other students could not incur liability under

Title IX. The court considered the pertinent

question to be whether the school could be held

liable for the acts of third persons (the harassing

students) who were not its agents. See id. at 1011

(noting that when a student is the harasser, "a

theory of respondeat superior has no precedential

or logical support"); id. at 1012 (stating that

Title IX’s language "does not support an inference

that the statute applies to the conduct of third

parties" and noting factors that weigh in favor of

imposing liability "only for the acts of grant

recipients").

As a result of this analysis, the Rowinsky court

concluded that the only way in which the plaintiff

could state a cause of action under Title IX based

on sexual harassment by other students would be by

showing "that the school district responded to

sexual harassment claims differently based on sex"

by, for instance, "treat[ing] sexual harassment of

boys more seriously than sexual harassment of

girls." Id. at 1016. Such a showing, the court

believed, would be sufficient to show that the

school itself discriminated on the basis of sex in

its response to the complaints.

With respect, the Fifth Circuit’s analysis

fundamentally misunderstands the nature of the

claim that plaintiffs in this kind of case advance.

See Doe v. Petaluma City Sch. Dist. (Petaluma II),

949 F. Supp. 1415, 1421 (N.D. Cal. 1996). Jane Doe

does not ask that the defendant be held liable for

the acts of the harassing students; rather, she

asks that it be held liable for its own actions and

inaction in the face of its knowledge that the

harassment was occurring. Were Doe in fact

requesting that the harassing students’ actions be

imputed to the University under agency principles,

then her claim would be properly dismissed. See

Smith, 128 F.3d at 1034 ("Agency principles . . .

cannot impute discriminatory conduct of an employee

to the ’program or activity’" under Title IX.).

Instead, Doe alleges that responsible school and

University officials knew of the harassment and

failed to take measures to address it. "Thus, [the

alleged] institutional liability rest[s] on the

institution’s actions" rather than those of the

harassers. Id. at 1022 (discussing Franklin, 503

U.S at 60). The Fifth Circuit’s agency-based

analysis, therefore, does not resolve the issue.

Moreover, the Rowinsky court’s demand that a

plaintiff such as Jane Doe, in order to state a

Title IX cause of action, allege and show that the

school reacted differently to sexual harassment

claims made by girls and boys misunderstands sexual

harassment itself. This Court has noted in the

Title VII context that the arguments underpinning

the Rowinsky requirement "interpret sex

discrimination in too literal a fashion." McDonnell

v. Cisneros, 84 F.3d 256, 260 (7th Cir. 1996). As

we recognized in that case, occasional exceptions

do not alter the rule that sexual harassment is an

evil that affects mostly women and girls. For this

reason, it must be exceedingly rare that a school

receives any complaints of sexual harassment from

its male students. The Fifth Circuit’s rule would

leave schools completely free to ignore the more

frequent complaints of sexual harassment from

girls, while imposing only the minimal cost that

such schools would be required likewise to ignore

any complaints they might receive from their male

students. See Petaluma II, 949 F. Supp. at 1421.

1. The Eleventh Circuit’s Spending Clause

Analysis

Apparently recognizing these fatal flaws of the

Rowinsky opinion, the Eleventh Circuit in its en

banc opinion in Davis took care not to characterize

the issue as one of liability for the acts of third

parties. It also did not echo the dictum that a

plaintiff could only state a claim by showing

differential treatment of complaints by boys and

girls. The court properly recognized that the

school’s allegedly discriminatory conduct lay in

"fail[ing] to take measures sufficient to prevent

a non-employee from discriminating against [the

plaintiff]." Davis, 120 F.3d at 1401. With this

understanding, the court proceeded to analyze

whether a school could properly face Title IX

liability for such a failure.

The Davis court began by finding that Title IX

was enacted pursuant to the Spending Clause of the

Constitution (art. I, sec. 8, cl. 1). See id. at

1398. From that premise, it next concluded that the

proper inquiry to determine whether the school

could be held liable was "whether Congress gave the

[school] Board unambiguous notice that it could be

held liable for failing to stop [the] harassment."

Id. at 1399. This Court held in Part I above that

Congress enacted Title IX and applied it to the

States pursuant to its powers under both the

Spending Clause and Section 5 of the Fourteenth

Amendment. While the Eleventh Circuit’s approach is

certainly relevant, it is not sufficient to

conclude the inquiry.

In its Spending Clause analysis, the Eleventh

Circuit correctly observed that "[w]hen Congress

enacts legislation pursuant to the Spending Clause,

it in effect offers to form a contract with

potential recipients of federal funding." Id.

(citing Pennhurst State Sch. & Hosp. v. Halderman,

451 U.S. 1, 17). As a general matter, the result of

this contractual analogy is that "if Congress

intends to impose a condition on the grant of

federal moneys, it must do so unambiguously."

Pennhurst, 451 U.S. at 17. In light of this

requirement, the Eleventh Circuit inquired whether

the defendant school board had been unambiguously

put "on notice" that it might be liable for failing

to respond to sexual harassment that it knew was

taking place.

By relying upon the unambiguous statement rule of

Pennhurst, the Eleventh Circuit ignored a more

recent Supreme Court holding on the matter. In

Franklin, 503 U.S. at 74-75, the Court held that

where the discrimination alleged to have violated

Title IX is intentional, the "notice problem does

not arise." See Davis, 120 F.3d at 1414 (Barkett,

J., dissenting). Title IX, the Supreme Court held,

placed on schools the duty not to discriminate on

the basis of sex; when a school violated that duty,

it could be held liable despite the fact that the

Court had not previously imposed a similar remedy

for the kind of Title IX violation at issue. See

Franklin, 503 U.S. at 75 (holding monetary damages

remedy against school district appropriate where

school officials knew about teacher’s sexual

harassment and abuse of student).

In the case before the Court today, Jane Doe

alleges that University High’s failure or refusal

to take prompt and appropriate action in response

to her complaints of sexual harassment was

intentional sexual discrimination. In other words,

the allegation assumes that the combination of

knowledge that sexual harassment is occurring in

activities under the school’s control and

intentional failure to take prompt, appropriate

action (such as investigation and, if warranted,

disciplinary measures) is presumably, perhaps even

necessarily, a manifestation of intentional sex

discrimination. See Smith, 128 F.3d at 1028 (noting

that "a School District or School Board that ’knew’

and failed to respond to sex discrimination would

act with the intent required to suffer a monetary

judgment under the Spending Clause"); id. at 1042

(Coffey, J., concurring) (same). After all, what

other good reason could there possibly be for

refusing even to make meaningful investigation of

such complaints, as Jane Doe alleges University

High officials did in this case?

School and University officials were

unquestionably aware that Title IX subjected the

school to liability for intentionally

discriminating against or denying educational

benefits to students on the basis of sex. There is

also no question that the campaign of harassment

that Doe alleges was sufficient to deny her the

full benefit of her education and subject her to

discrimination at the school. If, as alleged,

school and University officials knew about the

harassment and intentionally failed, and indeed

flatly refused in some instances, to take steps to

address it, then the plea that the institution was

not "on notice" that such failure could subject it

to Title IX liability rings hollow.

2. Fourteenth Amendment Analysis

Part I of this opinion held that Congress enacted

Title IX and extended it to the States in part

pursuant to Section 5 of the Fourteenth Amendment.

In so holding, this Court concluded that the

Supreme Court’s admonition in Pennhurst against

"quickly attribut[ing] to Congress an unstated

intent to act under its authority to enforce the

Fourteenth Amendment," Pennhurst, 451 U.S. at 16,

was not pertinent to resolving the question under

which of its powers Congress acted in passing and

extending Title IX. The warning in Pennhurst is,

however, most certainly relevant to the present

inquiry, which is whether Title IX imposes upon

recipients liability for certain types of actions

or inactions.

In Pennhurst, the Supreme Court declined to

conclude that Congress, in passing the

Developmentally Disabled Assistance and Bill of

Rights Act, had intended to use its Section 5

powers to impose an obligation on States to provide

and pay for certain kinds of treatment to the

mentally disabled. Id. at 15-17. The Court noted

that previous cases in which it had found that

Congress did create rights and obligations pursuant

to Section 5 involved express articulations of

intent by Congress. Id. at 16. The Court further

stated that "[t]he case for inferring intent [to

create enforceable rights] is at its weakest where

. . . the rights asserted impose affirmative

obligations on the States to fund certain services,

since we may assume that Congress will not

implicitly attempt to impose massive financial

obligations on the States." Id. at 16-17. The Court

contrasted such impositions of affirmative

obligations with statutes that "simply prohibit[]

certain kinds of state conduct." Id. at 16; see

Illinois Dep’t of Public Aid v. Sullivan, 919 F.2d

428, 434 (7th Cir. 1990) (finding that Pennhurst

did not bar imposition of prohibitions on State, in

part because "[t]he regulations in question . . .

imposed no new, affirmative obligations on [the

State]").

The right Jane Doe asserts in this case would

impose no affirmative funding obligations on the

States. It would merely prohibit States, in their

capacity as administrators of educational programs

receiving Title IX funds, from failing to respond

to sexual harassment that they knew was occurring.

Cf. Timmer v. Michigan Dep’t of Commerce, 104 F.3d

833, 840-841 (6th Cir. 1997) (inferring intent to

enact Equal Pay Act pursuant to Fourteenth

Amendment powers in part because it "simply

prohibit[s] certain kinds of state conduct," rather

than imposing financial obligations).

In any event, this Court does not read Pennhurst

to stand for the proposition that Congress may

never impose duties upon the States pursuant to

Section 5 of the Fourteenth Amendment in the

absence of a clear, unambiguous statement that it

is imposing those precise duties. Clarity in

legislative drafting is a goal to which this Court

willingly subscribes. Congress need not, however,

spell out in advance every situation to which it

wishes a statute to apply. As we observed nearly a

decade and a half ago, the question of whether

Congress created enforceable rights in the first

instance is very different from questions

concerning "the scope and interpretation" of those

rights. American Hosp. Assoc. v. Schweiker, 721

F.2d 170, 183 (7th Cir. 1983) (upholding community

service and uncompensated care requirements imposed

on federally funded hospitals by Department of

Health and Human Services regulations pursuant to

Hill-Burton Act), certiorari denied, 466 U.S. 958.

This Court noted in Schweiker that the defendant

hospitals conceded that the statute created

enforceable obligations; only the scope of the

obligations was at issue. See id. Similarly, no

party to the present case could seriously dispute

that Title IX imposes obligations upon schools that

receive federal funds to avoid discrimination on

the basis of sex, or that students such as Jane Doe

may sue to enforce those obligations. The issue is

whether those obligations’ scope is wide enough to

include the kind of liability Doe seeks to impose.

Pennhurst is not a bar to inquiry into that

question. If the language and history of Title IX

and its extension to the States fairly support

liability under the theory Jane Doe advances, then

this Court may conclude that Congress acted

pursuant to Section 5 of the Fourteenth Amendment

to impose such liability.

In its Spending Clause inquiry, the Eleventh

Circuit looked primarily to the express terms and

legislative history of Title IX. Finding no mention

in the legislative history of student-on-student

sexual harassment "or the related issue of school

discipline," Davis, 120 F.3d at 1397, the court

concluded that schools were not "on notice" that

they might be held liable for failing properly to

address sexual harassment by students, id. at

1401./8

Although we have concluded herein that Title IX

is not exclusively a Spending Clause enactment (and

that the notice issue does not arise, given the

intentional nature of the discrimination alleged),

the Davis court’s analysis of whether the statute

imposes liability provides a starting point for our

Fourteenth Amendment inquiry. Unfortunately, the

Eleventh Circuit made the mistake of focusing too

narrowly on the statute and the legislative

history, ignoring both case law and the meaning

attached to Title IX by the federal agency

responsible for its enforcement. As the dissenting

judges in Davis observed, the language and

legislative history of Title IX do not deal with

teacher-on-student sexual harassment, any more than

they do student-on-student harassment. See id. at

1413-1414 (Barkett, J., dissenting). Yet the

Supreme Court has explicitly recognized that Title

IX creates a cause of action based upon teacher-on-

student sexual harassment. See Franklin, 503 U.S.

at 60.

Indeed, the very principle that Title IX confers

a private right of action for any sort of violation

was not explicit in the text or legislative

history; it became law only when the Supreme Court

decided that Title IX implied such a right of

action. See Cannon v. University of Chicago, 441

U.S. 677, 688-689; see also Franklin, 503 U.S. at

71 (noting that, given fact that right of action

was inferred by Court in Cannon, prior legislative

history and statutory text were not helpful in

deciding whether money damages were available).

This Court must, therefore, look to judicial

decisions to help it determine whether Title IX

imposes liability for the University’s failure to

address appropriately sexual harassment by its

students.

The Supreme Court has declared that Title IX is

to be given "a sweep as broad as its language."

North Haven Bd. of Educ. v. Bell, 456 U.S. 512,

521. That language, in turn, speaks in terms of

safeguarding individual students’ rights: "No

person . . . shall be excluded . . . , be denied .

. . benefits . . . , or be subjected to

discrimination . . . ." 20 U.S.C. sec. 1681. As the

dissenting judges in Davis pointed out, "[t]he

absolute prohibition contained in the text is

framed solely in terms of who is protected." Davis,

120 F.3d at 1412 (Barkett, J., dissenting). Giving

this statutory language the "broad sweep" required

by North Haven certainly supports the proposition

that a school may be liable for refusing to act

upon its responsibility to operate a program in

which all persons are free from the kind of

exclusion and discrimination the statute forbids.

Beyond interpretation of the statutory language

itself, however, federal courts look to cases

decided under Title VII to inform analysis under

Title IX. See, e.g., Preston v. Commonwealth of

Virginia ex rel. New River Community College, 31

F.3d 203, 206 (4th Cir. 1994); Lipsett v.

University of Puerto Rico, 864 F.2d 881, 896-897

(1st Cir. 1988); Mabry v. State Bd. of Community

Colleges & Occupational Educ., 813 F.2d 311, 316

n.6 (10th Cir. 1987), certiorari denied, 484 U.S.

849. Although Title VII is most closely analogous

to Title IX actions involving discrimination

against educational employees, see Preston, 31 F.3d

at 206, Title VII cases are also helpful in

addressing other claims of sexual discrimination

under Title IX. See, e.g., Murray v. New York Univ.

College of Dentistry, 57 F.3d 243, 248-249 (2d Cir.

1995) (applying Title VII analysis to student’s

Title IX claim against school involving sexual

harassment by teacher). The very definition of

sexual harassment that is implicit in this

discussion and that of the other courts that have

addressed it in the educational context comes from

Title VII. See Meritor Savings Bank FSB v. Vinson,

477 U.S. 57, 67 (defining actionable sexual

harassment under Title VII). The Supreme Court, in

recognizing that sexual harassment of students by

teachers could give rise to a Title IX cause of

action against the school, cited Meritor, a Title

VII case. See Franklin, 503 U.S. at 75. Broadly

speaking, there is no reason why students such as

Jane Doe should be afforded a lesser degree of

protection against such "hostile environment"

discrimination than adult workers in the employment

setting regulated by Title VII.

This Court recently held that, because of

differences in the language and history of Title IX

and Title VII, cases decided under the latter

should not be construed to impose Title IX

liability upon schools for the acts of their

employees on the basis of agency principles. See

Smith, 128 F.3d at 1034. Jane Doe’s argument in

this case uses Title VII cases for a different

purpose, however--to support the conclusion that

schools may be held directly liable under Title IX

for their own failure to respond appropriately to

sexual harassment of which they have actual

knowledge. Such failure, Doe contends, renders the

University directly liable for its own intentional

discrimination on the basis of sex. Thus the

holding in Smith that Title VII agency-based

principles do not apply in Title IX cases does not

preclude our use of Title VII precedents here.

One problem with borrowing so liberally from

Title VII law in interpreting Title IX may be that

under Title VII prospective litigants are required

to proceed through a federal administrative agency,

the Equal Employment Opportunity Commission (EEOC),

before filing suit in federal court./9 See

Patterson v. McLean Credit Union, 491 U.S. 164,

180. This requirement is intended to promote the

resolution of unlawful employment practice claims

"through conciliation rather than litigation." Id.

Because no comparable administrative review

mechanism exists for suits filed under Title IX,

one might infer that Congress did not contemplate

that courts would recognize as broad a range of

causes of action under Title IX as under Title VII.

Perhaps the absence of agency review means that

this Court should not look to Title VII cases to

inform its analysis of Jane Doe’s Title IX claim.

On the other hand, private citizens have

possessed a right to bring suit under Title IX for

over eighteen years. See Cannon, 441 U.S. at 688-

689. For at least five of those years, students

have had a cause of action against schools based on

sexual harassment by school employees. See

Franklin, 503 U.S. at 63-64, 76. As noted above,

for much of that time courts, including the Supreme

Court, have been using Title VII precedent in

analyzing Title IX suits. In all those years,

Congress has not seen fit to institute a

requirement of administrative review or

conciliation for private suits under Title IX. Yet

nothing indicates that the federal courts have seen

an overwhelming flood of such suits. Nor does the

species of Title IX liability for which Jane Doe

asks in this case threaten to produce such a flood.

Courts are free to use the means provided by

Federal Rules of Civil Procedure 12 and 56, among

others, to dispose of suits that lack merit.

Congress, for its part, is free to impose a

requirement comparable to the one under Title VII

if it so desires. The absence of an administrative

review requirement does not discourage the use of

Title VII precedents in cases under Title IX.

Under Title VII standards, "an employer who has

reason to know that one of his employees is being

harassed in the workplace by others on grounds of

race, sex, religion, or national origin, and does

nothing about it, is blameworthy." Hunter v. Allis-

Chalmers Corp., Engine Div., 797 F.2d 1417, 1422

(7th Cir. 1986). So long as the harassment is such

that "the employer could have prevented [it] by

reasonable care in hiring, supervising, or if

necessary firing the [harasser]," the employer is

"directly liable (that is, independently of

respondeat superior)." Id. Translated to the Title

IX setting, this standard would mean that the

University is liable for harassment by its

students, regardless of the fact that students are

not agents of the school, so long as it knew or had

reason to know about the harassment and could have

prevented some or all of it by taking appropriate

action in response. The absence of an agency

relationship is simply irrelevant, given our

holding that the liability Jane Doe seeks is

direct, rather than agency-based. Although we do

not adopt, for the reasons given in Smith, 128 F.3d

at 1028-1029, the Title VII "knew or should have

known" standard articulated in cases such as

Hunter, we do borrow that case’s theory of direct

liability.

This view of Title IX liability also takes into

account the interpretations of the Department of

Education’s Office of Civil Rights (OCR), the

federal agency charged with enforcing Title IX.

Although OCR’s interpretation of Title IX is not

entitled to strict deference from this Court, see

id. at 1033-1034, it merits our consideration. The

OCR’s final policy guidance on the matter states:

[A] school’s failure to respond to the existence of

a hostile environment within its own programs or

activities permits an atmosphere of sexual

discrimination to permeate the educational program

and results in discrimination prohibited by Title

IX. Conversely, if, upon notice of hostile

environment harassment, a school takes immediate

and appropriate steps to remedy the hostile

environment, the school has avoided violating Title

IX. Thus, Title IX does not make a school

responsible for the actions of harassing students,

but rather for its own discrimination in failing to

remedy it once the school has notice.

Sexual Harassment Guidance: Harassment of Students

by School Employees, Other Students, or Third

Parties, 62 Fed. Reg. 12,034, 12,039-12,040 (1997).

The Eleventh Circuit’s opinion in Davis ignored

this policy statement (although Judge Tjoflat

addressed it in a footnote to the portion of the

opinion that is his alone, see Davis, 120 F.3d at

1404 n.23 (noting that the guidelines "issued after

the alleged harassment" in the case)). It is

certainly relevant that the OCR’s final Guidance

had not been issued at the time the harassment was

taking place. The Guidance, however, reflects

longstanding OCR policy, as demonstrated by

official Letters of Finding dating as far back as

1989. The Fifth Circuit in Rowinsky determined that

such Letters are not entitled to deference, as they

"are promulgated during investigations of specific

institutions, and their purpose is to compel

voluntary compliance by an offending institution."

Rowinsky, 80 F.3d at 1015. Where, as here, the

Letters of Finding consistently indicate that, in

the words of one of them, "[a] district which is

aware that its students are being subjected to

sexual harassment has a duty under Title IX to take

prompt and effective action to stop it," Letter of

Finding of John E. Palomino, Regional Civil Rights

Director, Region IX (May 5, 1989), Docket No. 09-

89-1050, there is no reason not to consider the

Letters as evidence that the later Policy Guidance

did indeed reflect long-existing OCR policy.

It is clear, then, that Title VII case law and

the interpretations of the responsible federal

agency support the imposition of Title IX liability

for the University’s failure to respond promptly

and appropriately to the sexual harassment of Jane

Doe. Furthermore, imposing such liability best

serves the anti-discrimination goal that Congress

indisputably had in mind when it enacted Title IX

and made it binding upon the States. Accordingly,

this Court holds that Title IX does make schools

liable for failure to respond promptly and

appropriately to known student-on-student sexual

harassment.

In holding that schools have a duty to take

prompt and appropriate action to remedy student-on-

student sexual harassment, this Court does not

imply that schools must be successful in completely

eradicating sexual harassment from their campuses

and programs. School officials faced with knowledge

of sexual harassment must decide how to respond,

but their choice is not a binary one between an

obviously appropriate solution and no action at

all. Rather, officials must choose from a range of

responses. As long as the responsive strategy

chosen is one plausibly directed toward putting an

end to the known harassment, courts should not

second-guess the professional judgments of school

officials. In general terms, it should be enough to

avoid Title IX liability if school officials

investigate aggressively all complaints of sexual

harassment and respond consistently and

meaningfully when those complaints are found to

have merit.

D. Proper Standard for Notice that Harassment

is Occurring

The holding that a school can be liable for

failing to respond appropriately to sexual

harassment makes it necessary to determine what

constitutes sufficient notice to the school that

such harassment is taking place. One court of

appeals and one district court, borrowing from the

Title VII context, have held that a school is

liable for failing properly to address harassment

that it actually knew or should have known was

occurring. Brzonkala, 132 F.3d at 949; Petaluma II,

949 F. Supp. at 1427. Several other district

courts, in contrast, have adopted a standard that

requires plaintiffs to allege and prove that the

school officials actually knew of the harassment

(rather than that they should have known). See

Londonderry Sch. Dist., 970 F. Supp. at 74;

Bruneau, 935 F. Supp. at 173; Wright, 940 F. Supp.

at 1419-1420; Bosley, 904 F. Supp. at 1023.

In Smith, this Court rejected Title IX liability

for teacher-on-student sexual harassment based on

a "knew or should have known" standard and adopted

instead a requirement of actual knowledge. Smith,

128 F.3d at 1034 (holding that school district can

be liable "only if a school official who had actual

knowledge of the abuse was invested by the school

board with the duty to supervise the employee and

the power to take action that would end such abuse

and failed to do so") (quoting Rosa H. v. San

Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th

Cir. 1997)). We see no reason to adopt a different

standard for cases, such as this one, in which the

alleged harassment is student-on-student.

The actual knowledge standard is sufficient to

resolve the case before the Court today, because

Doe alleged that the University actually knew of

the campaign of harassment against her. Indeed,

counsel for the University conceded at oral

argument that school officials knew of at least

some of the incidents of sexual harassment. The

parties agree that school officials on one occasion

suspended some of the male students involved and

took other actions in response to the harassment.

Such responses preclude any argument that the

officials did not have actual knowledge.

Furthermore, the requirement of actual knowledge

is an appropriate limitation upon the liability to

which suits based on student-on-student harassment

subject schools. It will prevent schools from being

blind sided by liability based upon events that

officials did not even know were taking place. Such

a requirement does not place too severe a burden on

potential plaintiffs. All that is required is that

they report the alleged harassment to responsible

school officials, thus giving the school a chance

to respond before it is hauled into court.

CONCLUSION

Jane Doe has alleged that she was subjected to

hostile environment sexual harassment. As noted

above, Doe also alleged (and the University

concedes) that school and University officials had

actual knowledge of that harassment. In addition,

Doe has alleged facts that would allow a jury to

find that the University failed to respond promptly

and appropriately to her complaints.

For the reasons set forth in Part I of this

opinion, the district court’s denial of the

University’s motion to reconsider on the basis of

Eleventh Amendment immunity is affirmed. Because

the plaintiff, Jane Doe, alleged facts sufficient

to support each element of her claim that the

University violated Title IX, the district court’s

dismissal of her Title IX cause of action against

the University pursuant to Federal Rule of Civil

Procedure 12(b)(6) is hereby reversed. The case is

remanded to the district court for further

proceedings consistent with this opinion.

FOOTNOTES

/* Because it conflicts with the decisions of other

Circuits, this opinion has been circulated among

all judges of this Court in regular active service

in accordance with Seventh Circuit Rule 40(e). A

majority of judges did not favor rehearing en banc.

/1 Because the district court dismissed Doe’s Title IX

cause of action pursuant to Federal Rule of Civil

Procedure 12(b)(6), this Court must take as true

all factual allegations in Doe’s complaint and draw

all reasonable inferences in her favor. See

Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.

1995). The facts stated in this opinion reflect

that requirement.

/2 The University’s Eleventh Amendment immunity

defense is a question of the federal courts’

subject matter jurisdiction over the action. The

University was therefore entitled to raise the

issue at any stage of the litigation. See Fed. R.

Civ. P. 12(h)(3) ("Whenever it appears by

suggestion of the parties or otherwise that the

court lacks jurisdiction of the subject matter, the

court shall dismiss the action.").

/3 The Equalization Act states in relevant part, "A

State shall not be immune under the Eleventh

Amendment . . . from suit in Federal court for a

violation of . . . title IX." 42 U.S.C. sec. 2000d-

7(a)(1).

/4 Section 5 of the Fourteenth Amendment provides,

"The Congress shall have power to enforce, by

appropriate legislation, the provisions of [the

Amendment]."

/5 In passing, however, it is worth noting that Jane

Doe’s briefs to this Court point out several

instances in the legislative history where members

of Congress refer to Title IX as an extension of

Fourteenth Amendment protections.

/6 Gregory, too, interpreted the substantive reach of

a statute, rather than divining the source of

Congress’ power. The question in Gregory was

whether Congress intended the Age Discrimination in

Employment Act to apply to appointed state court

judges. See Gregory, 501 U.S. at 455.

/7 The district court’s Order dismissing Doe’s Title

IX claim was issued on March 29, 1996. The Fifth

Circuit decided Rowinsky, 80 F.3d at 1006, four

days later, on April 2. The Eleventh Circuit’s

panel decision in Davis, 74 F.3d 1186 (11th Cir.

1996), which found liability without the necessity

of pleading that school officials were motivated by

discriminatory intent, was issued on February 14,

1996, but the district court did not mention the

case in its Order. The Davis panel decision was

subsequently vacated, 91 F.3d 1418 (11th Cir. 1996)

(granting rehearing en banc and vacating panel

decision), and the full Circuit reached the

contrary result discussed in the text.

/8 In sections of the en banc opinion not joined by

any other judge, the author of the majority

opinion, Judge Tjoflat, went on to state that the

possibility of schools’ being subject to what he

called "whipsaw liability" was a further indication

that Title IX did not put schools on notice that

they might face liability under the circumstances

of the case. Davis, 120 F.3d at 1401. By "whipsaw"

liability, Judge Tjoflat meant the danger that a

school might be sued by a harassed victim if it

failed to take action against the harasser, but

might then be sued by the harasser if it expelled

or otherwise punished him (or her). See id. at

1401-1406. As these statements do not represent the

opinion of the court, it is not necessary to

address them at length. It is worth pointing out,

however, that other Congressional enactments in the

anti-discrimination field subject parties to the

possibility of similar dual liabilities. Under

Title VII, for instance, an employer might face

suit from a harassed employee if it fails to take

steps to remedy a hostile environment, but might

also be sued by the harasser (for instance, for

wrongful termination) if it disciplines him.

/9 The EEOC reviews Title VII complaints of unlawful

employment practices to determine whether

reasonable cause exists to believe the charges are

true. 42 U.S.C. sec. 2000e-5(b). If it determines

that such cause does exist, the EEOC must "endeavor

to eliminate any . . . alleged unlawful employment

practice by informal methods." Id. The EEOC is

empowered to institute civil suits itself or refer

cases to the Attorney General for action. Id. sec.

2000e-5(f)(1). If the EEOC does not institute such

a suit or refer the case, or if it determines that

reasonable cause does not exist to support the

charges, it must dismiss the case and notify the

complaining party that he or she has the right to

sue in federal court. Id. In addition, the EEOC in

many cases is required to give State enforcement

agencies an opportunity to resolve the dispute. See

id. secs. 2000e-5(c)-(d).

Coffey, Circuit Judge, concurring in part and

dissenting in part. I concur in the majority’s

conclusion but not in its reasoning; I dissent from

the majority’s standard of liability. Title IX does

impose liability upon fund recipients for failing

to take prompt, appropriate remedial action in

response to complaints of student-on-student sexual

harassment, provided that responsible officials had

actual knowledge of such harassment. But only those

remedial actions which clearly evidence intentional

discrimination are actionable under Title IX. See

Smith v. Metropolitan Sch. Dist., 128 F.3d 1014,

1028 (7th Cir. 1997). Doe’s facts as pleaded are

sufficient to state a claim within this standard.

I write separately in an attempt to clarify certain

ambiguities in the majority opinion, and at the

same time raise several concerns about the analysis

set forth therein. As the majority notes, we are

only the second federal appellate court to date to

impose Title IX liability in the context of peer-

on-peer harassment; two other circuits, the Fifth

and Eleventh, have rejected the concept altogether,

see Davis v. Moore County Bd. of Educ., 120 F.3d

1390 (11th Cir. 1997) (en banc); Rowinski v. Bryan

Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.), cert.

denied, 117 S. Ct. 165 (1996), and the "actual

knowledge" test we adopt today is markedly

different from the Fourth Circuit’s negligence-

based "knew or should have known" standard of

liability. See Brzonkala v. Virginia Polytechnic

Inst. & State Univ., 1997 WL 785529 (4th Cir. Dec.

23, 1997)./1 This is indeed a most contentious

area of the law, one deserving of great scrutiny

and forethought. I fear that the majority has

perhaps been too hasty in interpreting Title IX

when the financing of our nation’s public

educational institutions hangs in the balance due

to limited tax dollars.

The statutory language itself should be the

starting point in resolving any controversy arising

under a federal statute. Title IX states 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 . . . ." 20 U.S.C.

sec. 1681(a) (1990). And while the peer-on-peer

harassment issue implicated in this case is one of

first impression for this Circuit, we have

previously been called upon to interpret Title IX

in a different context. In Smith v. Metropolitan

Sch. Dist. Perry Township, decided by this Court a

mere few months ago, we concluded that "a school

district can be liable for teacher-student sexual

harassment under Title IX only if a school official

who had actual knowledge of the abuse was invested

by the school board with the duty to supervise the

employee and the power to take action that would

end such abuse and failed to do so." 128 F.3d at

1034 (emphasis added) (quoting Rosa H. v. San

Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th

Cir. 1997)). Admittedly, teacher-on-student

harassment and student-on-student harassment are of

an entirely different species./2 Nevertheless,

Smith is helpful as a guide for determining when

and if a school district might be held liable for

one student’s sexual harassment of another.

In Smith, Steve Rager, a male teacher at

Southport High School in Indianapolis, Indiana,

engaged in a sexual relationship with Heather

Smith, then a seventeen-year-old female senior at

Southport. After graduating, Smith apprised her

parents of the affair and they, in turn, reported

it to school officials. Two days later, Rager was

suspended, informed that his services were no

longer desired, and told that his teaching license

would be terminated if he did not resign forthwith.

Rager promptly submitted his resignation.

Thereafter, the school district sent a letter to

the Indiana State Board of Education recommending

the revocation of Rager’s teaching license. In the

wake of these events, Smith brought suit against,

among other parties, the Metropolitan School

District Perry Township ("Metropolitan"), alleging

that the district discriminated against her in

violation of Title IX because school officials knew

or should have known that sexual harassment was

taking place and did nothing to prevent its

continuance. Metropolitan filed a motion for

summary judgment, which the trial court denied,

opining that teacher-on-student sexual harassment

under Title IX was to be measured pursuant to a

negligence standard, and that the "facts could

support the conclusion that the School Defendants

should have known about the sexual harassment and

taken prompt action to stop it." This Court

reversed, and in so doing, reasoned that insofar as

"Title IX was passed pursuant to Congress’ Spending

Clause power," monetary recovery was limited to

remedying acts of "intentional discrimination."/3

Id. at 1028; see also Guardians Ass’n v. Civil

Service Comm’n of New York, 463 U.S. 582, 599, 103

S. Ct. 3221, 3231 (1983). Such intent, we

concluded, is present only where the defendant-

school has "actual knowledge" of sexual harassment

and fails to take appropriate action to end it.

Smith, 128 F.3d at 1034. Because Metropolitan never

possessed actual knowledge of Rager’s and Smith’s

sexual liaison while it was taking place, there was

no need for us to consider what constituted

"appropriate action."

In my view, Smith’s "actual knowledge"

requirement is the very basis of Title IX

liability, and it transcends any differences that

might exist between the nature of teacher-on-

student and student-on-student sexual harassment.

Both demand that the plaintiff establish

intentional discrimination before Title IX

liability will attach, and school officials cannot

intend to discriminate against an individual unless

they have actual knowledge of harassment in the

first place./4 See id. at 1034 (explaining that

"[w]here a grant recipient has no knowledge of

alleged discrimination, it cannot be said to have

intentionally discriminated against the

plaintiff"). I join in that part of the majority

holding that recognizes this very significant

"actual knowledge" prerequisite to Title IX

liability, and make special note that it is clearly

reflected in the majority’s standard, which reads,

in part: "[A] Title IX fund recipient may be held

liable for its failure to take prompt, appropriate

action in response to student-on-student sexual

harassment . . ., provided the recipient’s

responsible officials actually knew that the

harassment was taking place." Maj. Op. at 15

(emphasis added). But while I agree with the

general spirit of Title IX liability as set forth

in the majority’s "actual knowledge" test, I

nevertheless have serious misgivings about other

facets of the standard it proposes.

Although this Court has issued but one decision

dealing with and defining the parameters of Title

IX liability, that single case, Smith, leaves no

doubt that Title IX forbids intentional

discrimination only. I fear that a casual reader of

today’s majority opinion might very well argue that

negligence concepts have somehow crept into our

Title IX jurisprudence. It may indeed be true that

"Doe has alleged facts that would allow a jury to

find that the University failed to respond promptly

and appropriately to her complaints" Maj. Op. at

30, but such a statement begs the question as to

what constitutes a "prompt and appropriate"

response--is it merely some action, however trite,

suspension (as was done here), or expulsion of the

harassing student? Of course, the answer thereto

must lie somewhere beyond a negligence rubric, and

hinges on the circumstances of the particular case.

The issue is not whether a given school did enough

to wipe out ongoing student-on-student sexual

harassment--that is a negligence inquiry/5--

rather, the proper question is whether the

responsive action taken was of such a nature that

it effectively evinced the school’s intent to

perpetuate a sexually-hostile environment./6 In

other words, if a school district acquired actual

knowledge of peer-on-peer harassment and undertook

measures that it believed would achieve their

desired result, but which fell short in doing so,

one could hardly suggest that school officials

intentionally discriminated against the complaining

student unless their response was so de minimis

that it evidenced an endorsement of the harassment,

they somehow treated female complaints differently

than male complaints, or vice versa,/7 or they

departed from established policies and practices

when punishing student harassers./8 This appears

to be what the majority is attempting to get at

when it states:

As long as the responsive strategy chosen is one

plausibly directed toward putting an end to the

known harassment, courts should not second-guess

the professional judgments of school officials. In

general terms, it should be enough to avoid Title

IX liability if school officials investigate

aggressively all complaints of sexual harassment

and respond consistently and meaningfully when

those complaints are found to have merit.

Maj. Op. at 28. I think a "meaningful" response, as

Judge Cummings uses the term, can and should be

interpreted very broadly to include any remedial

action which is not so de minimis that it

demonstrates an intent by school officials to

discriminate against the complaining student on an

improper basis. I would, therefore, prefer to raise

the level of deference we should accord schools’

remedial actions even beyond Judge Evans’

observation that "[c]onsiderable deference . . .

must be given to schools in meeting these demands,

and a wide range of reasonable responses should be

permitted" Evans Op. at 50 (emphasis added), and

emphasize the word "considerable." Alternatively,

if a school fails to take prompt remedial steps

after having received actual notice of student-on-

student harassment taking place during a school-

sponsored and supervised activity, acquiescence

could in such an instance be perceived as amounting

to intentional discrimination.

The bases of liability I propose above, like many

other aspects of this fast developing area of the

law, may be new to Title IX, but that is not to say

they are entirely foreign to our jurisprudence.

Only one year ago, in Nabozny v. Podlesny, 92 F.3d

446 (7th Cir. 1996), we considered a student’s

claim of peer-on-peer harassment under 42 U.S.C.

sec. 1983, as opposed to Title IX. And while sec.

1983 and Title IX do differ as to from whom relief

might be obtained,/9 they are, in fact, quite

similar with respect to how a court, proceeding

without statutory or Supreme Court guidance, should

go about construing claims brought pursuant to

them, for "[b]oth statutes prohibit the same kind

of conduct and provide compensatory and punitive

damages as remedies . . . ." Waid v. Merrill Area

Pub. Sch., 91 F.3d 857, 862 (7th Cir. 1996)

(emphasis added). Indeed, both Title IX and sec.

1983 forbid intentional sexual discrimination. That

having been said, I believe it would be helpful to

summarize the facts of Nabozny, which, in my

opinion, arguably would have stated a cognizable

claim under Title IX./10

Jamie Nabozny attended middle and high school in

the Ashland Public School District in Ashland,

Wisconsin. Nabozny, 92 F.3d at 449. From around the

time he entered the seventh grade until he withdrew

from Ashland High School in his junior year,

Nabozny suffered not only continual harassment, but

also physical abuse at the hands of his peers due

to the fact that he was an avowed homosexual; his

male classmates regularly referred to him as

"faggot," struck and spit on him, performed a mock

rape on him in a science classroom, as well as

pushed him, forcing him to fall into a urinal. Id.

at 451-52. After each of these incidents, Nabozny’s

parents met with Ashland High’s Principal, Mary

Podlesny, to report what had happened and identify

the perpetrators. Id. at 451. And on each occasion,

no action was forthcoming on the part of the school

authorities; in fact, Podlesny’s alleged responses

ranged from stating, "boys will be boys," to

telling Nabozny that "if he was ’going to be so

openly gay,’ he should ’expect’ such behavior from

his fellow students." Id. Nabozny eventually filed

suit pursuant to sec. 1983 against Podlesny, among

other parties, including the Ashland School

District, alleging that the defendants violated his

Fourteenth Amendment rights to equal protection and

due process.

On appeal from the district court’s entry of

summary judgment in the defendants’ favor, this

Court reversed. In so doing, we explained that

"[i]n order to establish liability under sec. 1983

[for an equal protection violation], Nabozny must

show that the defendants acted with a nefarious

discriminatory purpose," Id. at 453 (citation

omitted), that is, "demonstrate intentional or

purposeful discrimination." Id. at 454 (quoting

Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.

1982) (emphasis added)). And "[d]iscriminatory

purpose," we stated, "implies that a decisionmaker

singled out a particular group for disparate

treatment and selected his course of action at

least in part for the purpose of causing its

adverse effects on the identifiable group." Id. at

454 (quoting Shango, 681 F.2d at 1104). Applying

these sec. 1983 principles to the facts in Nabozny,

we explained:

Nabozny has presented evidence that his classmates

harassed and battered him for years and that school

administrators failed to enforce their anti-

harassment policies, despite his repeated pleas for

them to do so. If the defendants otherwise enforced

their anti-harassment policies, as they contend,

then Nabozny’s evidence strongly suggests that they

made an exception to their normal practice in

Nabozny’s case.

Therefore, the question becomes whether Nabozny

can show that he received different treatment

because of his gender. . . . Nabozny does allege .

. . that when he was subjected to a mock rape

Podlesny responded by saying "boys will be boys,"

apparently dismissing the incident because both the

perpetrators and the victims were males. We find it

impossible to believe that a female lodging a

similar complaint would have received the same

response.

. . . .

Moreover, Nabozny introduced evidence to suggest

that the defendants literally laughed at Nabozny’s

pleas for help.

Id. at 454-55. Nabozny’s message is unequivocal,

and should not be lost in any attempt to

differentiate between sec. 1983 and Title IX.

Specifically, intentional discrimination can be

manifested in an institution’s: (1) complete

failure to respond to allegations of peer-on-peer

harassment; (2) its disparate treatment of male and

female complaints thereof; and/or (3) its unexcused

departure from established anti-harassment

policies. Nabozny did not call upon this Court to

address the fourth way in which a school’s intent

to discriminate might be demonstrated; namely, by

taking remedial action which is so de minimis in

nature that it might very well be considered an

endorsement of sexual harassment.

In this case, Doe does not allege that University

High School officials did nothing in response to

her accusations of sexual harassment, nor that they

previously had, much less would have, reacted

differently to a male student’s complaints thereof.

Rather, the school suspended two of Doe’s harassers

for ten days each, and transferred another one of

them out of Doe’s biology class. Does such a

response, which turned out to be unsuccessful in

curtailing the boys’ campaign of sexual harassment,

circumstantially evidence the school’s intent to

discriminate against Doe? I think not, but that is

an issue for the district court on a motion for

summary judgment, or for the trier of fact at

trial.

That having been said, I turn to another

troubling aspect of the majority’s standard;

namely, that the majority, in imposing Title IX

liability for peer-on-peer harassment which "takes

place while the students are involved in school

activities or otherwise under the supervision of

school employees" Maj. Op. at 15, advances an

indefinite disjunctive test that casts far too

broad a net upon the acts of students for which an

institution might incur liability. In my view, only

harassment that takes place while students are

involved in school-sponsored activities, whether on

or off school grounds (i.e., during scheduled

classes, school-sanctioned athletic events, dances,

field trips, or theatrical productions, to name a

few), might conceivably provide cause for Title IX

liability. Unlike the majority’s standard, my test

maintains Title IX’s requisite relationship between

the discrimination alleged and the school sought to

be charged. For example, let us suppose that

students within a public institution called "City

Public High School" hold an annual dance entitled

the "City Public High School Winter Formal."

Notwithstanding the name of the event, it is not

school-sanctioned, but is instead an entirely

private gala that takes place at a suburban country

club and is open to only a select group of invited

students. The district neither provides funding for

the affair nor assists in the organization,

planning or supervision of it--every arrangement is

exclusively made by and through the students. Once

at the dance, a male student makes some unwanted

sexual "passes" at a female classmate in attendance

who, in turn, complains to her principal about it

several days later. The school takes corrective

action, but the same type of "harassment" occurs at

next year’s "Winter Formal." This time the young

woman visits with her attorney, rather than the

principal, and brings a Title IX action against the

school district. While the majority’s use of the

loose term, "school activities," could possibly

encompass this set of facts, I do not think that

Title IX was enacted to capture a broad range of

conduct of this nature. In my view, there must be

established a true and meaningful nexus between the

harassment alleged and the institution sought to be

charged under Title IX. Where, as in the preceding

hypothetical, a number of students attend an event

which they have planned, financed and supervised

without the assistance of school officials, I

submit that the "connection" between the harassing

conduct and the school district is far too tenuous

to justify the imposition of Title IX liability.

Simply put, the majority’s use of the malleable

term, "school activities," is too indefinite and

all-inclusive, and could very well invite Title IX

liability well beyond the parameters Congress

envisioned, thus potentially expanding the number

of situations in which student-on-student

harassment is actionable. For this reason, I am of

the belief that Title IX liability must be limited

to harassment which takes place while students are

involved in school-sponsored activities, as opposed

to any function in which students participate, be

it their own or that of another organization.

In the same vein, I disagree with the majority

that Title IX liability alternatively arises for

"harassment that takes place while the students are

. . . otherwise under the supervision of school

employees." Maj. Op. at 15. Once again, this

language is too all-inclusive. Taken literally, the

majority’s standard could potentially impose Title

IX liability if, after school hours or even during

summer break, a male student visits the home of a

female peer whose father happens to be a public

school employee (i.e., a custodian or maintenance

man), and sexually harasses her (assuming that the

parent (school employee) was present to supervise

the students’ behavior)./11 The parent’s

"supervision" of his daughter and the harassing

student is in such a case completely unrelated to

his position as a school employee, and the

harassment itself poses no relationship whatsoever

to an educational "program or activity." The

emphasis I am placing on the harassing conduct

(i.e., under what circumstances it takes place) is

not inconsistent with the notion that Title IX does

not impute liability on educational institutions

for the acts of students, but rather for the

institutions’ failure to respond promptly and

appropriately to complaints of sexual harassment

properly brought to their attention. If one student

sexually harasses another and the harassee

complains to school officials, the school will only

be liable if: (1) it had actual knowledge of the

harassment; (2) it fails to undertake prompt and

appropriate remedial action; and (3) the harassment

continues. Therefore, assuming that a school

actually knew about student-on-student harassment

and did not take prompt and appropriate remedial

measures in response thereto, the true linchpin of

Title IX liability is the actual act of continued

harassment.

My belief that the majority has in this instance

gone too far with its sweeping test is not only

grounded in the strict language of Title IX, but

also in my appreciation of the veritably impossible

task imposed on school authorities of controlling

the all-too-frequent reckless and unpredictable

behavior of today’s adolescents. The law does not

allow minor children (under eighteen years of age)

to consent to surgical procedures without parental

approval because of their emotional

immaturity./12 For this very reason, they are

likewise prohibited from voting, going to war,

purchasing alcohol or cigarettes, and even

contracting./13 Is it not ironic then that these

same minors have the ability to cast their school

systems into dire financial straits due to sexual

harassment driven by the same unalterable juvenile

shortcoming? Much ink has been spilled in the name

of explaining exactly why young adolescents are, or

should be, denied certain legal rights and

privileges traditionally accorded to adults. In

Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035

(1979), for example, the Supreme Court articulated

its rationale for refusing to equate the

constitutional rights of children with those of

adults, stating:

[T]he Court has held that the States validly may

limit the freedom of children to choose for

themselves in the making of important, affirmative

choices with potentially serious consequences.

These rulings have been grounded in the recognition

that, during the formative years of childhood and

adolescence, minors often lack the experience,

perspective, and judgment to recognize and avoid

choices that could be detrimental to them.

Id. at 635, 99 S. Ct. at 3044 (emphasis added).

Indeed, most minors simply have not gained

sufficient knowledge and experience in the affairs

of life to exercise sound discretion and judgment.

Behavioral scientists have likewise contributed to

the cause of understanding what underlies society’s

belief that adolescents are poor decision-makers,

and concluded that it may very well be attributable

to minors’ regular participation in dangerous

activities, despite their appreciation of the risks

involved. See Elizabeth Cauffman & Laurence

Steinberg, The Cognitive and Affective Influences

on Adolescent Decision-Making, 68 Temp. L. Rev. 1763,

1767, 1772 (1995). This stems, in large part, from

"the adolescent[’s] . . . view [of] himself or

herself as unique and, moreover, invulnerable to

harm." Id. at 1767 (emphasis added) (citing Daniel

K. Lapsley & Michael N. Murphy, Another Look at the

Theoretical Assumptions of Adolescent Egocentrism,

5 Developmental Rev. 201, 214-15 (1985)). It follows,

then, that when a minor student sexually harasses

his peer, he does not do so for want of knowledge

that such behavior is wrong or socially

unacceptable, but rather because of his cavalier

attitude towards risk and a false inner sense of

invincibility. School administrators have been, and

shall continue to be, unable to alter this innate

risk-loving nature of teenagers, and there is

little reason why they should be burdened with this

assignment when it comes to student-on-student

sexual harassment.

The policies which underlie our law’s prohibition

against the participation of minors in those

activities set forth above (i.e., voting, etc.)

also argue against imposing Title IX liability for

peer-on-peer harassment. I harken back to what the

Supreme Court said in Bellotti--"that, during the

formative years of childhood and adolescence,

minors often lack the experience, perspective, and

judgment to recognize and avoid choices that could

be detrimental to them." Bellotti, 443 U.S. at 635,

99 S. Ct. at 3044. That is, the law wisely limits

the decision-making ability of minors when the

exercise of their own poor judgment creates costs

which fall primarily on themselves. Our modern

society is a litigious one, and although the cost

of peer-on-peer harassment under Title IX will be

borne by the school systems (vis-a-vis "deep-

pocketed" taxpayers), it is the students who will

ultimately suffer through reduced funding in their

educational pursuits--this is precisely the type of

situation in which the law should protect minors

from their own foolish judgments. The fact of the

matter is that Congress has enacted Title IX, and

we have interpreted the statute to mandate that

courts, in certain circumstances, not equate peer-

on-peer sexual harassment with consenting to

surgical procedures and the like. There is no

reason to infer, however, from existing case law or

legislative history that we must construe Title

IX’s text as broadly as possible, much as the

majority has attempted herein. As I noted in Smith,

being a reviewing federal appellate court, in

contradistinction to a lawmaking body, "’we resolve[]

. . . ambiguit[ies] not by invoking some policy

that supersedes the text of the statute,’ but

rather by limiting ourselves to that meaning which

a given text will reasonably bear." Smith, 128 F.3d

at 1041 (Coffey, J., concurring).

Finally, I wish to point out that, contrary to

what one might be led to believe by the majority

opinion’s heavy reliance on Title VII (see Maj. Op.

at 24-27), this Court is not retreating from its

position in Smith that Title IX and Title VII are

not analogous statutes, and as such, the latter

should not be used to enlighten our analysis under

the former except in very limited circumstances. In

Smith, we explained in unequivocal language that

"it is helpful to look to Title VII to determine

whether the alleged sexual harassment is severe and

pervasive enough to constitute illegal

discrimination on the basis of sex for purposes of

Title IX," Smith, 128 F.3d at 1023, but went on and

clearly stated that there existed no

"’justifi[cation for] the importation of other

aspects of Title VII law into the Title IX

context.’" Id. (quoting Rosa H., 106 F.3d at 653).

Thus, in light of Smith, which is the law of this

Circuit, it is plainly improper for the majority to

suggest that "[t]here is no reason why students

such as Jane Doe should be afforded a lesser degree

of protection against . . . ’hostile environment’

discrimination than adult workers in the employment

setting regulated by Title VII." Maj. Op. at 24.

Intentional discrimination under Title IX is

measured vis-a-vis an "actual knowledge" standard,

whereas "the standard for employer liability [under

Title VII] in cases of hostile-environment sexual

harassment by a supervisory employee is negligence

[(i.e., "knew or should have known")]." Jansen v.

Packaging Corp. of America and Ellerth v.

Burlington Indus. Inc., 123 F.3d 490, 495 (7th Cir.

1997) (en banc) (per curiam), cert. granted in part

by Burlington Indus., Inc. v. Ellerth, 118 S. Ct.

876 (Jan. 23, 1998). These are two very separate

and distinct tests which afford different degrees

of protection to those individuals who bring claims

pursuant to Title IX and Title VII. It follows then

that Doe should not, as the majority now proposes,

be entitled to the same degree of protection under

Title IX as adult workers are in the employment

setting under Title VII.

Because I am confident that Doe will not be the

last student-on-student sexual harassment case to

come before this Court, I close with the concern

that the majority opinion, which I join only in

part, has attempted to open the gates to Title IX

liability wider than that statute’s language

reasonably allows, and it shall only be a matter of

time before the floodwaters of litigation begin to

rise. Allegations of peer-on-peer harassment are

being levied at a fevered pitch even in the primary

grades, and oftentimes for conduct that is nothing

more than "child’s play." Indeed, only one year ago

a six-year-old, North Carolina first-grader was

accused of sexual harassment after he kissed a

female classmate. See Linda Chavez, Feminist Kiss

Patrol is on the March, USA Today, Oct. 2, 1996, at

15A. More recently, school officials in Pittsburgh

suspended a ten-year-old, fourth-grade student for

two days because he, as his two "victims" put it,

grabbed one of them from behind and subjected the

other to an unwanted hug. Kid Stuff a Silly Sexual

Harassment Charge Against a 10-Year-Old, Pittsburgh

Post Gazette, Sept. 25, 1997, at A22. My point is

simply that, absent Congressional or Supreme Court

guidance in this area of the law, we must be

mindful to approach it with an application of

common-sense, combined with utmost reflection and

study, so as not to let it get "out of control" for

those individuals who must live by its mandate.

In Jansen, 123 F.3d at 543 (Coffey, J.,

concurring in part and dissenting in part), I noted

that "[j]ust as the ill-advised expansion of the

law in the [medical malpractice and products

liability] areas has worked to the detriment of the

average American citizen, so too will the expansion

of employer liability in the Title VII context."

The same goes for Title IX, but it will not just be

the "average American citizen" who suffers in the

form of higher taxes, for children in public

schools are the ultimate recipients of federal

educational funding--they are also the ones who

lose when those monies are withheld. The cost of

making school authorities guardians of acceptable

social behavior outside of school-sponsored

activities could be devastating, for Title IX,

unlike Title VII, does not include a statutory

ceiling on recoverable monetary damages. See 42

U.S.C. sec. 1981a(b)(3). In fact, merely defending

against a multi-million dollar Title IX lawsuit can

mean the difference between hiring five new

teachers and discharging five existing ones,

purchasing upgraded computers and making do with

outdated machines, or expanding the library’s

collection and dropping a remedial reading program.

I find it troubling that an emotionally-immature

minor student has the ability to make this

difference, thereby depriving his innocent peers of

valuable learning opportunities. A very recent

study by the International Association for the

Evaluation of Educational Achievement revealed that

our Nation’s eighth-graders currently rank only

twenty-eighth out of forty-one developed countries

around the world in mathematics, and only

seventeenth in science. See Peter Applebome, U.S.

Students Just Average in Math, Science Rankings at

a Glance, N.Y. Times, Nov. 21, 1996, at N1. A

"National Report Card" on the condition of public

education in the fifty states, released on January

8, 1998, likewise relates some discouraging news--

America’s schools are not "making the grade." See

Quality Counts ’98, Educ. Wk., Jan. 8, 1998. Overall,

the states received a "C+" grade for the amount of

resources they allocated to education./14 Id. at

3. How can this be when most states are devoting

more funds to education today than they did ten

years ago? Id. The answer is simple: "too few of

the additional dollars have reached classrooms."

Id. (emphasis added). The easier it is to reach

into our schools’ coffers under Title IX, the

faster these statistics shall plummet, and, in

turn, the sooner we will have to bear the burden of

a tragically undereducated society.

I do recognize that student-on-student harassment

is a most serious issue, and echo the sentiments I

expressed in my Smith concurrence, that "I am

unalterably opposed to sexual harassment, which is

both intolerable and wrong." Smith, 128 F.3d at

1041 (Coffey, J., concurring). And although perhaps

the most appropriate forum to educate children on

the iniquitousness of harassment, whether sexual or

otherwise, is in the home, the fact of the matter

is that Congress, by enacting Title IX, has placed

the responsibility on educators to insure that it

not be tolerated, and does not persist, in our

schools. It is my belief that the "actual

knowledge" standard, coupled with the ideas

articulated herein, accurately captures the

"intentional discrimination" which Title IX seeks

to prohibit.

FOOTNOTES

/1 The majority incorrectly states that "today’s

holding is inconsistent with the decisions of two

of the three other courts of appeals that have

directly addressed the issue" of Title IX liability

for student-on-student sexual harassment. Maj. Op.

at 15. Because this Court has adopted the

aforementioned "actual knowledge" test in Title IX

cases, our holding should be contrasted with, as

opposed to likened to, all three of the decisions

of those circuits, as neither the Fifth nor

Eleventh circuit recognizes Title IX liability for

peer-on-peer harassment, while the Fourth Circuit

implores a negligence-based "knew or should have

known" standard.

/2 As we all know, public school systems can pick and

choose to employ whomever they wish as teachers and

"filter out" any applicants with histories of

sexual misconduct, while on the other hand they

must educate every qualified child within their

respective districts. Moreover, whereas adult

educators have, or should have, the emotional

maturity and experience to know what type of

conduct oversteps the bounds of socially acceptable

behavior, children, because of their youth, more

often than not do not have the ability to exercise

such sound judgment.

/3 Although we conclude today that Title IX was

enacted pursuant to its Spending Clause powers as

well as Section 5 of the Fourteenth Amendment, the

fact remains that the statute prohibits intentional

discrimination only.

/4 Because it is the threshold inquiry under Title IX,

and is implicit in the discussion throughout the

remainder of this opinion, I see no need to

repeatedly reference the requirement that an

educational institution must possess actual

knowledge of alleged

sexual harassment before Title IX liability might

attach.

/5 I am well aware, however, that an educational

institution’s pattern of "negligent" responses to

complaints of peer-on-peer sexual harassment (i.e.,

responses that fail to evidence an endorsement of

harassment) might under certain circumstances

conceivably rise to the level of intentional

discrimination. See, e.g., Wellman v. Faulkner, 715

F.2d 269, 272 (7th Cir.), cert. denied, 468 U.S.

1217, 104 S. Ct. 3587 (1983) (recognizing that a

pattern of negligent responses can evidence

"deliberate indifference").

/6 The majority hints that a school’s response to

complaints of harassment will only constitute

"intentional discrimination" if it demonstrates an

intent to foster a sexually hostile environment by

stating that:

the combination of knowledge that sexual harassment

is occurring in places or activities under the

school’s control and intentional failure to take

prompt, appropriate action (such as investigation

and, if warranted, disciplinary measures) is

presumably, perhaps even necessarily, a

manifestation of intentional sex discrimination.

After all, what other good reason could there

possibly be for refusing even to make meaningful

investigation of such complaints . . . .

Maj. Op. at 18-19 (citation omitted).

/7 Because I am of the opinion that intentional

discrimination is manifested in a school’s

disparate treatment of female and male sexual

harassment complaints, I agree with the Fifth

Circuit’s Rowinski decision to the extent that it

concluded "a school district might violate title

[sic] IX if it treated sexual harassment of boys

more seriously than sexual harassment of girls, or

even if it turned a blind eye toward sexual

harassment of girls while addressing assaults that

harmed boys." Rowinski, 80 F.3d at 1016. I

disagree, however, with Rowinski’s suggestion that

this is the only way in which a plaintiff can

demonstrate intentional discrimination under Title

IX. The majority fails to make clear whether it

objects to Rowinski in toto, including the

"disparate treatment" concept, or if it, like

myself, criticizes that case for simply being too

limited in scope.

/8 "It is well settled law that departures from

established practices may evince discriminatory

intent." Nabozny v. Podlesny, 92 F.3d 446, 455 (7th

Cir. 1996) (citing Village of Arlington Heights v.

Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.

Ct. 555, 564-65 (1977)). And Title IX regulations

presently require schools to adopt and publish

grievance procedures for prompt and equitable

resolution of sexual discrimination and/or

harassment complaints, and to disseminate policies

prohibiting such conduct. See 34 C.F.R. sec. 106.8.

Thus, it in all probability would not be difficult

for a trier of fact to determine whether school

officials had "departed from established

practices," and, resultingly, intentionally

discriminated against a particular plaintiff, in

violation of Title IX.

/9 Whereas a Title IX claim can only be brought

against a grant recipient and not an individual,

Smith, 128 F.3d at 1018-19, an action brought

pursuant to sec. 1983 may lie against individuals.

/10 Of course, this Circuit now recognizes that "a

plaintiff may not claim that an instance of

intentional discrimination simultaneously creates

causes of action under Title IX and under sec. 1983

and the Equal Protection Clause of the Fourteenth

Amendment; the availability of a Title IX claim

precludes the pursuit of a sec. 1983 claim."

Merrill Area Pub. Sch., 91 F.3d at 862 (citing

Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d

168 (3rd Cir. 1993), cert. denied, 510 U.S. 1043,

114 S. Ct. 689 (1994)).

/11 This example further assumes, of course, that

school officials possessed actual knowledge that

the harasser had previously engaged in harassing

conduct.

/12 Because courts typically refer to individuals below

the age of eighteen as "minors," see, e.g., Behnke

v. Behnke, 103 Wis. 2d 449, 309 N.W.2d 21 (Ct. App.

1981), whereas developmental psychologists

sometimes allude to them under the label,

"adolescents," I shall use the two terms

interchangeably when referring to children under

eighteen years of age.

/13 A minor may, of course, enter into a contract with

another, but "it is settled law . . . that a

contract of a minor for items which are not

necessaries is void or voidable at the minor’s

option." Halbman v. Lemke, 99 Wis. 2d 241, 245, 298

N.W.2d 562, 564 (1980) (citations omitted).

/14 The "report card" also issued the following overall

state grades for the three respective categories:

"Standards and Assessments"--(B); "Quality of

Teaching"--(C); "School Climate"--(C-).

EVANS, Circuit Judge, concurring. I am pleased to

join Judge Cummings’ splendid opinion. I write

separately only to offer a few observations as this

case returns to the district court for further

proceedings. Our bottom line is, as Judge Cummings

writes, "that a Title IX fund recipient may be held

liable for its failure to take prompt, appropriate

action in response to student-on-student sexual

harassment that takes place on the recipient’s

grounds or while its students are involved in

school activities, provided the recipient’s

responsible officials actually knew that the

harassment was taking place." (Slip op. at 15.) I

support this holding and have nothing to add to

Judge Cummings’ effective analysis of why the Fifth

and Eleventh Circuits’ contrary view is flawed. But

the devil here will be in the details.

It is vitally important to emphasize that this

case is on appeal following a dismissal for failure

to state a claim under Rule 12(b)(6). As such, we

are required to assume all facts in the complaint

to be true, but of course we cannot and do not

vouch for their accuracy. The complaint in this

case is a sprawling document--21 pages peppered

with 114 separately numbered paragraphs. Seventy-

one of the paragraphs are under the heading

"Facts." Although the complaint is excessively long

and unnecessarily detailed, its gist is that our

plaintiff, while a student at University High,

faced an unrelenting campaign of verbal and

physical sexual harassment perpetrated by a group

of male students at the school and that the school

officials did little or nothing to address the

chaotic situation. What troubles me, and what will

have to be addressed by the district court upon

remand, is just what exactly did the school do here

to address the situation and was what it did

enough? The complaint, and the concession at oral

argument that Judge Cummings notes (slip op. at

29), give a hint that the school did something to

ameliorate the situation--it suspended two boys.

Tested later on summary judgment, that just might

turn out to be enough to satisfy our command that

a school must take "prompt and appropriate" action

to combat known sexual harassment.

Schools do not have to eliminate sexual

harassment by students upon other students. That

would be an impossible task, for schools are full

of all sorts of kids, and every school has its

share of buffoons, yokels, and dunderheads of all

stripes. And unlike harassers in the work place,

students can’t be fired. Schools are also full of

kids with raging hormones who may be crude and

insensitive when dealing with students of the

opposite sex. So although I agree that Title IX

requires schools receiving federal funds to be

engaged in combating student-on-student sexual

harassment, what I think is required is that a

school not turn a blind eye to a sexually hostile

environment. Considerable deference, I believe,

must be given to schools in meeting these demands,

and a wide range of reasonable responses should be

permitted.

Statement of Easterbrook, Circuit Judge, respecting

the denial of rehearing en banc. The panel

circulated its opinion before release under Circuit

Rule 40(e) so that we could decide whether to

create a conflict among the circuits on the

question whether the eleventh amendment to the

Constitution, as understood in Seminole Tribe v.

Florida, 116 S. Ct. 1114 (1996), prevents Congress

from providing that suits under Title IX of the

Education Amendments of 1972, 20 U.S.C. secs.

1681-88, may be heard in federal court. Our panel

holds that Title IX is based in part on the

fourteenth amendment, so that the principle of

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976),

applies. Sex discrimination by public schools is a

subject within the legislative power under sec.5 of

the fourteenth amendment, and Congress need not

catalog the grants of power under which it

legislates; courts do not remand statutes for

better statements of reasons. None of the active

judges questions the panel’s decision on this

issue.

After the panel circulated its draft opinion,

some judges expressed concern about a different

question: under what circumstances does inaction by

a public school that has received reports of one

pupil’s misconduct toward another amount to sex

discrimination? Taking sides in a second conflict

among the circuits, the panel held that failure to

protect pupils from private aggression is a species

of discrimination. This is the original meaning of

equal protection of the laws. If a state protects

white or male residents against crimes (or torts),

it must protect the black or female residents as

well. Some courts of appeals seem to have forgotten

this, but the panel has not--and again none of the

active judges favors review of this question by the

full court. What has led to the dissent from the

majority’s decision to let the panel issue its

opinion is not a belief that we should follow one

of the other circuits but concern about how to

implement the principle that schools must protect

their female pupils against private assaults. What

level of knowledge is required? How effective must

intervention be? These are difficult questions, on

which Title IX offers no guidance--and on which

none of the other circuits has yet offered a view.

One would suppose from 20 U.S.C. sec.1682 that

issues posed but not answered by Title IX are to be

resolved by the federal aid-granting agencies,

after their regulations have been reviewed by the

President, with judicial review to follow under 20

U.S.C. sec.1683. Use of a private right of action

for damages to short-circuit this deliberately

cumbersome process not only replaces administrative

negotiation with damages liability (the source of

the dissent’s principal concern) but also leaves

the court substantively at sea. Is it wise to jump

the gun in this fashion? Why not say that, until

regulations have specified vital details, damages

are inappropriate? Cf. Blessing v. Freestone, 117

S. Ct. 1353 (1997). Although Franklin v. Gwinnett

County Public Schools, 503 U.S. 60 (1992), holds

that there is an implied private right of action

for damages to enforce Title IX (an action directly

under Title IX, not via 42 U.S.C. sec.1983 and

Maine v. Thiboutot, 448 U.S. 1 (1980)), it does not

command the inferior courts to award damages in

problematic cases before school districts know what

is expected of them. Franklin and its precursor

Cannon v. University of Chicago, 441 U.S. 677

(1979), are about remedies: they add private

damages to the statutory approach of terminating

federal funding. Cannon infers the remedy from the

right; it does not dispense with the need to find

a right clear enough to be enforceable. Rulemaking

under sec.1682, rather than adjudication, should be

the source of gap-filling rules. Otherwise the

remedy breeds its own right. Notice-and-comment

rulemaking with approval of the President, not

events-and-damages "rulemaking" in common law

fashion, is the method specified in sec.1682. The

absence of rules defining with precision the

schools’ obligations counsels hesitation, even if

it does not foreclose damages.

As a standard that school districts must satisfy

until regulations have been issued--alternatively,

that pupils must meet if they want damages as

opposed to administrative relief--Chief Judge

Posner’s proposal makes a great deal of sense. But

I do not think it necessary or appropriate to hear

this case en banc, for we do not know whether the

choice of standard matters. Anything we say on the

subject may be advisory--and unnecessary too, for

none of the three judges on the panel clearly

rejects an analogy to the deliberate-indifference

standard under Farmer v. Brennan, 511 U.S. 825

(1994). Our last effort to resolve an issue of this

kind in the abstract did not fare well. See Jansen

v. Packaging Corp. of America, 123 F.3d 490 (7th

Cir. 1997) (en banc), cert. granted under the name

Burlington Industries, Inc. v. Ellerth, 118 S. Ct.

876 (1998). After we have learned how (if at all)

the differences among standards matter, and the

parties have had an opportunity to brief the

subject with a recognition of its significance, we

will be able address the question, if that still

appears to be necessary. It would be premature to

hear this issue en banc now.

Posner, Chief Judge, with whom Flaum and Manion,

Circuit Judges, join, dissenting from denial of

rehearing en banc. The issue of a school’s

liability under 20 U.S.C. sec. 1681(a) (which

forbids sex discrimination by schools that receive

federal financial aid) for the sexual harassment of

one student by another is well worth the attention

of the full court, quite apart from the issue of

intercircuit conflict. The potential liabilities of

the nation’s schools, already financially hard-

pressed, are staggering, since insults, teasing,

petty persecutions, grabbing, poking, sexual

experimentation, and other forms of what might

actually or arguably constitute sexual harassment

are an omnipresent feature of school life.

Liability for failing to prevent or rectify sexual

harassment of one student by another places a

school on a razor’s edge, since the remedial

measures that it takes against the alleged harasser

are as likely to expose the school to a suit by him

as a failure to take those measures would be to

expose the school to a suit by the victim of the

alleged harassment.

I tentatively favor the adoption of a standard of

liability that would give schools substantial

protection against being sued for failing to guess

right about the proper management of sexual and

related nastiness among their charges. That is the

standard of "deliberate indifference," and I shall

explain it in a moment. The clearest alternative,

the negligence standard, would not give the schools

sufficient protection. The panel acknowledges this;

none of its members endorses the negligence

standard. Judge Cummings’ opinion adopts a hybrid

standard: the school must have actual knowledge of

the harassment; but if it does, then it is liable

(as I read the opinion) if it fails to respond with

"prompt and appropriate action." This could mean,

if it acts negligently. This would still not be the

negligence standard, because that standard does not

require knowledge of the risk; that is why I call

Judge Cummings’ standard a hybrid. Some language in

his opinion, however, suggests a higher standard

than simple negligence to govern the school’s

response to knowledge of a risk ("courts should not

second-guess the professional judgments of school

officials"), as does the language of Judge Evans’

concurrence. Judge Coffey would limit liability to

instances in which the school’s misconduct can

fairly be described as intentional, an approach

very similar to deliberate indifference. It is

unclear how much real "space" there is between the

positions of Judges Cummings and Evans on the one

hand and Judge Coffey on the other; it is not even

clear that Judges Cummings and Evans see completely

eye to eye; nor is what I have described as the

hybrid standard sufficiently clear, precise, or

familiar to provide sure guidance to school

officials and their lawyers.

We need to consider the important issue of the

proper standard as a court. The hybrid standard is

a possibility but would have to be more clearly

defined to be serviceable. Simple negligence is

another possibility, gross negligence a third. The

statute does not say. We must choose. My tentative

preference is for the standard of deliberate

indifference. Title IX in general and section

1681(a) in particular are not designed to create a

comprehensive and stringent new regime for the

regulation of sexual harassment in schools but to

create sex equality in educational programs and

facilities. The analogy to Title VII is deceptive,

since Title VII regulates the behavior of adults in

the workplace rather than the inevitably unruly

behavior of adolescents. It may be excessive

intrusion into the management of the schools for

the courts to sanction them for failing to prevent

the harassment of one student by another unless the

school’s failure can fairly be described as

intentional.

Three types of intentional failure can be

distinguished. The first, which must be very rare,

is where the school wants the harassment to occur.

The second is where the school deliberately treats

harassment differently depending on the sex, race,

etc. of the pupils involved. There too, liability

is clear. The third and most difficult case is

where the school knows about the harassment, knows

that it is serious or even dangerous, and could

take effective measures at low cost to avert the

danger, but decides--consciously, deliberately--to

do nothing, although it does not base this decision

on an invidious ground such as race or sex. The

school doesn’t mean any harm to the victim of the

harassment, but knowing that the harassment is

occurring, is serious, etc., it decides to do

nothing. An example mentioned in Judge Coffey’s

opinion is where the school deliberately departs,

without adequate excuse, from its established

policy in dealing with such incidents.

This difficult third case is the domain of

"deliberate indifference," which is the equivalent

of criminal recklessness. E.g., Farmer v. Brennan,

511 U.S. 825 (1994); West v. Waymire, 114 F.3d 646,

651 (7th Cir. 1997). Neither gross negligence, nor

recklessness in the tort sense, is enough to

satisfy this standard. E.g., Billman v. Indiana

Department of Corrections, 56 F.3d 785, 788 (7th

Cir. 1995); Sellers v. Henman, 41 F.3d 1100 (7th

Cir. 1994). The standard of deliberate indifference

has been invoked in a number of other school cases.

Kinman v. Omaha Public School District, 94 F.3d

463, 467 (8th Cir. 1996); Doe v. Claiborne County,

103 F.3d 495, 508 (6th Cir. 1996); Doe v. Taylor

Independent School District, 15 F.3d 443, 454 (5th

Cir. 1994). Two of these cases also impose a

negligence standard for misconduct by the teacher;

that is an issue currently before the Supreme

Court.

Deliberate indifference by the school in a case

of one student sexually harassing another would

mean that the school (1) actually knew of (2)

hostile or offensive conduct likely to interfere

with the victim’s education, and (3) deliberately

did nothing, or took steps that it knew would be

ineffectual, to protect the victim, (4) without

excuse (for it might be difficult or even

impossible to take effective measures). Elements

(1) and (4) will both be more difficult for the

plaintiff to satisfy when the harassment occurs off

the school premises; and that is how it should be

because it is much more difficult for the school to

discover and remedy off-premises harassment.

Through careful examination of alternative

standards of liability, we can find the standard

that will best fit the purposes and circumstances

of Title IX and that will be simple and workable.

That is a challenge well worth the court’s plenary

consideration.