Salazar v. South San Antonio Independent School District

Case: 15-50558 Document: 00514035949 Page: 1 Date Filed: 06/15/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-50558 FILED

June 15, 2017

Lyle W. Cayce

ADRIAN SALAZAR, Clerk

Plaintiff–Appellee,

v.

SOUTH SAN ANTONIO INDEPENDENT SCHOOL DISTRICT,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Adrian Salazar sued the South San Antonio Independent School District

for damages under Title IX of the Education Amendments Act of 1972 1 because

Michael Alcoser, while a vice principal and subsequently a principal of

elementary schools in the District, repeatedly molested Salazar, a student.

Though all of the material facts are undisputed and largely stipulated, the case

was tried before a jury, which found in favor of Salazar. The district court

entered a judgment awarding him $4,500,000. We conclude that the judicially

implied private right of action under Title IX does not impose liability on a

1 20 U.S.C. § 1681 et seq.

Case: 15-50558 Document: 00514035949 Page: 2 Date Filed: 06/15/2017

No. 15-50558

school district when the only employee or representative of the district with

actual knowledge of the molestation was the perpetrator himself, even if the

perpetrator had authority to institute corrective measures on behalf of the

district to end discrimination by other individuals or in the school’s programs.

We accordingly reverse the district court’s judgment.

I

Adrian Salazar was a student at Price Elementary in the South San

Antonio Independent School District (the District). Michael Alcoser was then

a vice principal at the school and frequently removed Salazar and his brother

from lunch or physical education classes and took them to his office. At first,

Alcoser gave Salazar and his brother gifts and played games with them.

During Salazar’s third-grade year, Alcoser would buy Salazar’s lunch, which

they shared in Alcoser’s office behind closed doors, and Alcoser eventually

molested Salazar. The abuse continued through Salazar’s fifth-grade year and

the following summer at a computer camp held at another elementary school

within the District. During Salazar’s sixth-grade year, he attended a middle

school. Alcoser had been promoted and served as the principal of Carrillo

Elementary in the District. However, Alcoser persuaded Salazar’s parents to

drive him to Carrillo Elementary, approximately twice a week, so that Alcoser

could “tutor” Salazar. Salazar’s family discovered the abuse while he was in

the seventh grade.

Uncontroverted testimony at trial established that as a vice-principal,

and later a principal, of elementary schools within the District, Alcoser had

corrective authority to address gender discrimination and sexual harassment

during the time that he molested Salazar, though there is no evidence that the

District designated Alcoser an “appropriate person” for purposes of reporting

or correcting his own misconduct. The parties stipulated before trial that

Alcoser, the perpetrator, was the only District employee or representative who

2

Case: 15-50558 Document: 00514035949 Page: 3 Date Filed: 06/15/2017

No. 15-50558

had actual knowledge of the abuse at the time it occurred and that the abuse

violated the District’s policies. The District received federal funding during

the period in question. Salazar’s parents reported Alcoser’s sexual abuse of

their son to the San Antonio police, the District fully cooperated in the ensuing

investigation, and the District terminated Alcoser’s employment. Alcoser

ultimately pleaded guilty to aggravated sexual assault and was sentenced to

eighteen years in prison.

Salazar sued the District and Alcoser for damages. After the district

court dismissed a number of the causes of action, Salazar filed an amended

complaint that included only a claim for monetary damages under Title IX

against the District. The District moved for summary judgment, contending

that Alcoser’s knowledge of his own wrongdoing could not be imputed to the

District, but that motion was denied, and the case proceeded to trial.

The jury heard testimony from Salazar, his mother, his brother, and his

therapist. The District presented testimony from two employees: the District’s

Title IX coordinator, and the secretary of Price Elementary’s principal at the

time of the abuse. Each party moved for judgment as a matter of law at the

close of the other’s evidence; both motions were denied.

The jury found that “an official of the school district who was assigned

the responsibility of preventing sexual harassment and granted authority to

remedy sexual harassment had actual knowledge of the sexual harassment of

Adrian Salazar.” It further found that such an official “reacted with deliberate

indifference to the sexual harassment” of Salazar. Salazar acknowledges that

there is no evidence that any official other than Alcoser had actual knowledge

of the sexual harassment or reacted with deliberate indifference. The jury

found that Salazar suffered damages in the amount of $4,500,000.

After the jury returned its verdict, the District renewed its motion for

judgment as a matter of law, contending that the implied private right of action

3

Case: 15-50558 Document: 00514035949 Page: 4 Date Filed: 06/15/2017

No. 15-50558

for damages under Title IX does not extend to cases in which only the

wrongdoer had actual knowledge of the wrongdoing. The district court

concluded that Title IX liability is established when there is “(1) actual notice

of sexual harassment, (2) [to] an official empowered to take corrective action,

(3) who reacts with deliberate indifference.” The district court concluded that

Alcoser met all three criteria. The court distinguished the decisions cited by

the District as involving “rank-and-file teacher[s] [and] instructor[s],” and

reasoned that in those cases, the wrongdoer did not have “the authority to take

corrective action to end sexual harassment,” while in the present case, Alcoser

did. The district court accordingly denied the District’s motion for judgment

as a matter of law, as well as its motions in the alternative for a new trial and

for remittitur, and entered a judgment awarding Salazar $4,500,000. The

District appealed.

II

With exceptions not relevant here, Title IX provides, in 20 U.S.C.

§ 1681(a), 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.” 2 Title IX includes express authorization of

administrative processes that permit federal agencies and departments to

terminate or refuse to provide financial assistance or funding to entities that

fail to comply with § 1681. 3 The reach of Title IX has, however, been extended

by the Supreme Court by implication.

As recounted in the Supreme Court’s opinion in Gebser v. Lago Vista

Independent School District, the Court has, in a series of decisions, recognized

2 20 U.S.C. § 1681(a).

3 20 U.S.C. § 1682.

4

Case: 15-50558 Document: 00514035949 Page: 5 Date Filed: 06/15/2017

No. 15-50558

implied causes of action under Title IX. 4 In Cannon v. University of Chicago, 5

the Supreme Court held “that Title IX is also enforceable through an implied

private right of action.” 6 In Franklin v. Gwinnett County Public Schools, 7 the

Court concluded “that monetary damages are available in the implied private

action” and that “a school district can be held liable in damages in cases

involving a teacher’s sexual harassment of a student.” 8 While Franklin “d[id]

not purport to define the contours of that liability,” the Court “face[d] that issue

squarely” in Gebser. 9 In Gebser, a teacher had engaged in a sexual relationship

with one of his high school students. 10 The Court held that “damages may not

be recovered in those circumstances unless an official of the school district who

at a minimum has authority to institute corrective measures on the district’s

behalf has actual notice of, and is deliberately indifferent to, the teacher’s

conduct.” 11

Both Salazar and the District rely on Gebser, arguing that it is outcome-

determinative in this case. Salazar contends that Alcoser was “an official of

the school district who at a minimum ha[d] authority to institute corrective

measures on the district’s behalf” and had “actual notice of” and was

4 524 U.S. 274, 281 (1998).

5 441 U.S. 677 (1979).

6 Gebser, 524 U.S. at 281 (citing Cannon, 441 U.S. at 709).

7 503 U.S. 60 (1992).

8 Gebser, 524 U.S. at 281 (citing Franklin, 503 U.S. at 74-75).

9 Id.

10 Id. at 277.

11 Id.; see also id. at 290:

An “appropriate person” under § 1682 is, at a minimum, an official of the

recipient entity with authority to take corrective action to end the

discrimination. Consequently, in cases like this one that do not involve official

policy of the recipient entity, we hold that a damages remedy will not lie under

Title IX unless an official who at a minimum has authority to address the

alleged discrimination and to institute corrective measures on the recipient’s

behalf has actual knowledge of discrimination in the recipient’s programs and

fails adequately to respond.

5

Case: 15-50558 Document: 00514035949 Page: 6 Date Filed: 06/15/2017

No. 15-50558

“deliberately indifferent to” his own abusive conduct. 12 Therefore, Salazar

insists, the District is liable because Alcoser’s conduct was the District’s

conduct by virtue of his authority to redress discrimination on the basis of sex.

The District has put forth a number of arguments in response. Among them

is its reliance upon the statement in Gebser that “[w]here a school district’s

liability rests on actual notice principles, however, the knowledge of the

wrongdoer himself is not pertinent to the analysis.” 13 We conclude that this

statement was part of the Supreme Court’s holding in Gebser, not dicta. 14

The statement was made in response to footnote 8 in JUSTICE STEVENS’

dissenting opinion. 15 JUSTICE STEVENS disagreed with the parameters of the

private cause of action and remedy a majority of the Court recognized in Gebser

because JUSTICE STEVENS would have formulated the implied right of action

based on “settled principles of agency law.” 16 But in footnote 8, JUSTICE

STEVENS additionally asserted that if the Court’s majority opinion were to

apply its own formulation of the private cause of action to the facts correctly,

the court of appeals’ judgment in favor of the recipient should be reversed

because the teacher who abused his student had the authority to take

corrective measures when he had actual knowledge of harassment. 17 In other

12 See id. at 277.

13 Id. at 291.

14 See United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (“A statement is not

dictum if it is necessary to the result or constitutes an explication of the governing rules of

law.”) (quoting Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)).

15 Gebser, 524 U.S. at 291 (“Justice STEVENS points out in his dissenting opinion that

Waldrop [the teacher who sexually abused a student] of course had knowledge of his own

actions.”).

16 Id. at 298-99 (STEVENS, J., dissenting).

17 Id. at 298 n.8 (STEVENS, J., dissenting):

The Court’s holding is also questionable as a factual matter. Waldrop

himself surely had ample authority to maintain order in the classes that he

conducted. Indeed, that is a routine part of every teacher’s responsibilities. If

Gebser had been the victim of sexually harassing conduct by other students

during those classes, surely the teacher would have had ample authority to

6

Case: 15-50558 Document: 00514035949 Page: 7 Date Filed: 06/15/2017

No. 15-50558

words, JUSTICE STEVENS advocated that the perpetrator of the sexual abuse

can be deemed an “appropriate person” under Title IX and for purposes of the

private cause of action that a majority of the Court held was implied if the

perpetrator had authority to correct discrimination or harassment. Writing for

a majority of the Court, JUSTICE O’CONNOR succinctly rejected JUSTICE

STEVENS’ understanding of the contours of the private right of action the Court

had crafted, saying: “Where a school district’s liability rests on actual notice

principles, however, the knowledge of the wrongdoer himself is not pertinent

to the analysis.” 18 Applying that principle to the present facts, the District is

not liable for damages based on Title IX since Alcoser’s knowledge of his own

wrongdoing is not pertinent.

Nevertheless, because the claim in Gebser did not allege the precise

factual pattern present in this appeal, we will consider the text of Title IX,

other of the Supreme Court’s writings regarding implied rights of action and

remedies, and the import of the principles animating Gebser’s formulation of

when a recipient of federal funds may be liable under Title IX for sexual abuse

of a student by a teacher.

III

A

Salazar acknowledges that liability under Title IX arises not from the

discrimination or harassment itself but from “an official decision by the

recipient not to remedy the violation.” 19 Salazar maintains that “[w]hether a

take corrective measures. The fact that he did not prevent his own harassment

of Gebser is the consequence of his lack of will, not his lack of authority.

18 Id. at 291.

19 Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999)

(emphasis added) (quoting Gebser, 524 U.S. at 290); see also id. at 643 (emphasizing that

“Gebser sought to eliminate any ‘risk that the recipient would be liable in damages not for its

own official decision but instead for its employees’ independent actions’” (quoting Gebser, 524

U.S. at 290-91)).

7

Case: 15-50558 Document: 00514035949 Page: 8 Date Filed: 06/15/2017

No. 15-50558

Title IX compliance officer acts with deliberate disregard for someone else’s

harassment or abuse of a student, or performs these acts himself, a school

district is directly liable under Title IX.” Salazar contends that “whether

Alcoser committed the abuse himself or deliberately disregarded abuse

committed by a teacher, coach or janitor, the simple fact remains that no

person at the District above Alcoser would have known about the abuse.”

“Either way,” Salazar correctly observes, “members of the District’s board or

superintendent’s office would not know of the abuse, yet the latter clearly

would support the District’s direct liability under Gebser.”

The obvious distinction between the circumstances that Salazar posits is

that a perpetrator of sexual abuse who also “has authority to institute

corrective measures on the district’s behalf,” within the meaning of Gebser, 20

is highly unlikely either to take “corrective measures on the district’s behalf”

or to report his own criminal behavior to another school district official who is

authorized to take corrective measures. In contrast, if a school district official

with authority to remedy discrimination proscribed by Title IX was not a

perpetrator and became aware that a district employee had sexually abused a

student, it could reasonably be expected that the official with remedial

authority would take action and would not exhibit deliberate indifference to

the victimization of a student.

But more importantly, implying a right of action under Title IX that

would permit recovery of damages from a funding recipient when only the

person who committed sexual abuse had actual knowledge of his intentional

misconduct would be contrary to the statutory intent expressed in 20 U.S.C.

§ 1682. There is a remedial scheme expressly set forth in § 1682, which

provides that federal funding or financial assistance cannot be terminated or

20 Gebser, 524 U.S. at 277.

8

Case: 15-50558 Document: 00514035949 Page: 9 Date Filed: 06/15/2017

No. 15-50558

withheld unless “the department or agency concerned has advised the

appropriate person or persons of the failure to comply with the requirement

and has determined that compliance cannot be secured by voluntary means.” 21

It is unreasonable to construe § 1682 to mean that an employee of a school

district who committed sexual abuse in violation of the prohibitions of Title IX

would be an “appropriate person or persons” concerning that sexual abuse.

When an individual’s intentional conduct constitutes the discrimination, the

directive to “advise[]” an appropriate person “of the failure to comply” connotes

that the “appropriate person” is unaware of the misconduct. 22 Moreover, when

an individual’s intentional conduct that is contrary to a district’s policies is at

issue, it cannot be said that Congress intended the “determin[ation] that [the

recipient’s] compliance cannot be secured by voluntary means” to hinge on the

offending individual’s response if he was the only employee or representative

of the district who was “advised” of the “failure to comply.” 23

B

Though the cause of action recognized in Gebser is a judicially implied

one, 24 “[l]ike substantive federal law itself, private rights of action to enforce

federal law must be created by Congress.” 25 The “remedies available are those

‘that Congress enacted into law.’” 26 “Statutory intent . . . is determinative” of

whether there was congressional “intent to create not just a private right but

also a private remedy.” 27 “Without [statutory intent], a cause of action does

not exist and courts may not create one, no matter how desirable that might

21 20 U.S.C. § 1682.

22 See id.

23 Id.

24 Gebser, 524 U.S. at 284 (“[T]he private right of action under Title IX is judicially

implied . . . .”).

25 Alexander v. Sandoval, 532 U.S. 275, 286 (2001).

26 Id. (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)).

27 Id.

9

Case: 15-50558 Document: 00514035949 Page: 10 Date Filed: 06/15/2017

No. 15-50558

be as a policy matter, or how compatible with the statute.” 28 The Supreme

Court has admonished that “[r]aising up causes of action where a statute has

not created them may be a proper function for common-law courts, but not for

federal tribunals.” 29 We discern no congressional intent in Title IX to provide

a private cause of action for damages when the only employee or representative

of a funding recipient who had knowledge of the discrimination was the

offender.

The Supreme Court’s extensive elucidation in Gebser of how it derived

the contours of Title IX’s implied private cause of action for damages supports

the conclusion that one in Alcoser’s shoes should not be considered to have

acted in his capacity as a school district official with authority to remedy

discrimination when he failed to remedy or report his own misconduct. That

is because, at its core, the implied Title IX remedy that the Supreme Court

recognized depends on meaningful notice to a funding recipient so that it will

have an opportunity to remedy the discrimination.

In Gebser, the Supreme Court said that “[b]ecause the private right of

action under Title IX is judicially implied, we have a measure of latitude to

28Id. at 286-87.

29Id. at 287 (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S.

350, 365 (1991) (SCALIA, J., concurring in part and concurring in judgment)); see also id.:

Respondents would have us revert in this case to the understanding of

private causes of action that held sway 40 years ago when Title VI was enacted.

That understanding is captured by the Court’s statement in J.I. Case Co. v.

Borak, 377 U.S. 426, 433 [ ] (1964), that “it is the duty of the courts to be alert

to provide such remedies as are necessary to make effective the congressional

purpose” expressed by a statute. We abandoned that understanding in Cort v.

Ash, 422 U.S. 66, 78 [ ] (1975)—which itself interpreted a statute enacted under

the ancien regime—and have not returned to it since. Not even when

interpreting the same Securities Exchange Act of 1934 that was at issue in

Borak have we applied Borak’s method for discerning and defining causes of

action. Having sworn off the habit of venturing beyond Congress’s intent, we

will not accept respondents’ invitation to have one last drink. (citations

omitted).

10

Case: 15-50558 Document: 00514035949 Page: 11 Date Filed: 06/15/2017

No. 15-50558

shape a sensible remedial scheme that best comports with the statute.” 30 But

the Court recognized that “[a] private remedy should not be implied if it would

frustrate the underlying purpose of the legislative scheme.” 31

The Supreme Court declined to create an implied remedy that would

“permit a damages recovery against a school district for a teacher’s sexual

harassment of a student based on principles of respondeat superior or

constructive notice, i.e., without actual notice to a school district official.” 32 In

concluding that liability premised on such a basis would “‘frustrate the

purpose’ of Title IX,” the Court said, “it does not appear that Congress

contemplated unlimited recovery in damages against a funding recipient

where the recipient is unaware of discrimination in its programs.” 33 The Court

drew upon contract principles, observing that Title IX “condition[s] an offer of

federal funding on a promise by the recipient not to discriminate, in what

amounts essentially to a contract between the Government and the recipient

of funds.” 34 The Court reasoned that “[i]f a school district’s liability for a

teacher’s sexual harassment rests on principles of constructive notice or

respondeat superior, it will likewise be the case that the recipient of funds was

unaware of the discrimination.” 35 The Court continued, “[i]t is sensible to

assume that Congress did not envision a recipient’s liability in damages in that

situation,” and “[w]e think it unlikely that [the school board] further agreed to

suffer liability whenever its employees discriminate on the basis of sex.” 36 A

30 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 284 (1998).

31 Id. at 285 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 703 (1979)).

32 Id.

33 Id.

34 Id. at 286.

35 Id. at 287.

36 Id. at 287-88 (quoting Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 654

(5th Cir. 1997)).

11

Case: 15-50558 Document: 00514035949 Page: 12 Date Filed: 06/15/2017

No. 15-50558

logical corollary is that it is unlikely that a school board would agree to liability

in circumstances like those in the present case.

C

When the perpetrator is the only school official with notice, and the acts

of the perpetrator unquestionably violate the school district’s policies, the

purposes of Title IX are not served by imposing liability upon the funding

recipient. The implied cause of action would be more akin to strict liability in

such a circumstance, or to respondeat superior, which the Supreme Court

expressly rejected as a basis for an implied right of action under Title IX. 37

In Davis, the Supreme Court reaffirmed that in Gebser, it “rejected the

use of agency principles to impute liability to the district for the misconduct of

its teachers,” and “[l]ikewise . . . declined the invitation to impose liability

under what amounted to a negligence standard—holding the district liable for

its failure to react to teacher-student harassment of which it knew or should

have known.” 38 To hold a district liable when an individual authorized to take

corrective measures becomes a perpetrator of sexual abuse, and the district

has no knowledge of that abuse, would be to embrace a standard of culpability

less than negligence. The district would be liable even if it did not know or

should not have known when it gave the perpetrator authority to remedy

discrimination based on sex that he would become a sex offender.

37 Id. at 287-88.

38 Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 642 (1999)

(citing Gebser, 524 U.S at 283, 290); see also Gebser, 524 U.S. at 282, 285 (reflecting that

“petitioners and the United States submit that a school district should at a minimum be liable

for damages based on a theory of constructive notice, i.e., where the district knew or ‘should

have known’ about harassment but failed to uncover and eliminate it” but declining to adopt

that standard of culpability).

12

Case: 15-50558 Document: 00514035949 Page: 13 Date Filed: 06/15/2017

No. 15-50558

D

The conclusions that the Supreme Court drew from its examination of

the administrative enforcement provisions expressly set forth in Title IX

further indicate that an implied private action does not extend to cases like

this one. The Court recognized that “Title IX’s express means of enforcement—

by administrative agencies—operates on an assumption of actual notice to

officials of the funding recipient.” 39 The Court noted that “an agency may not

initiate enforcement proceedings until it ‘has advised the appropriate person

or persons of the failure to comply with the requirement and has determined

that compliance cannot be secured by voluntary means.’” 40 The Court also

observed that regulations implementing Title IX’s express administrative

enforcement scheme “requir[e] resolution of compliance issues ‘by informal

means whenever possible,’ and prohibit[] commencement of enforcement

proceedings until the agency has determined that voluntary compliance is

unobtainable and ‘the recipient . . . has been notified of its failure to comply

and of the action to be taken to effect compliance.’” 41 Importantly, the Court

reasoned that notifying “the appropriate person” and the opportunity for

voluntary compliance prevents education funding from being stripped when

the recipient would have been willing to take corrective measures. 42 The Court

39 Gebser, 524 U.S. at 288.

40 Id. (quoting 20 U.S.C. § 1682).

41 Id. (quoting 34 C.F.R. §§ 100.7(d), 100.8(d) (1997) and citing 34 C.F.R. § 100.8(c)

(1997)).

42 Id. at 289:

Presumably, a central purpose of requiring notice of the violation “to

the appropriate person” and an opportunity for voluntary compliance before

administrative enforcement proceedings can commence is to avoid diverting

education funding from beneficial uses where a recipient was unaware of

discrimination in its programs and is willing to institute prompt corrective

measures. The scope of private damages relief proposed by petitioners is at

odds with that basic objective. When a teacher’s sexual harassment is imputed

to a school district or when a school district is deemed to have “constructively”

13

Case: 15-50558 Document: 00514035949 Page: 14 Date Filed: 06/15/2017

No. 15-50558

concluded that “[i]t would be unsound . . . for a statute’s express system of

enforcement to require notice to the recipient and an opportunity to come into

voluntary compliance while a judicially implied system of enforcement permits

substantial liability without regard to the recipient’s knowledge or its

corrective actions upon receiving notice.” 43

In looking to Title IX’s express enforcement scheme for guidance in

establishing parameters for an implied right of action, the Supreme Court also

recognized that “an award of damages in a particular case might well exceed a

recipient’s level of federal funding.” 44 The Court concluded that because Title

IX’s “express enforcement scheme hinges its most severe sanction on notice and

unsuccessful efforts to obtain compliance,” it could not “attribute to Congress

the intention to have implied an enforcement scheme that allows imposition of

greater liability without comparable conditions.” 45

In choosing the standard by which to measure the recipient’s response to

actual notice of discrimination in a private action, the Court again took into

account the fact that Title IX’s “administrative enforcement scheme

presupposes that an official who is advised of a Title IX violation refuses to take

action to bring the recipient into compliance.” 46 The Court said, “[t]he premise,

in other words, is an official decision by the recipient not to remedy the

violation.” 47 The Court recognized that if it were to adopt “a lower standard,

there would be a risk that the recipient would be liable in damages not for its

known of the teacher’s harassment, by assumption the district had no actual

knowledge of the teacher’s conduct. Nor, of course, did the district have an

opportunity to take action to end the harassment or to limit further

harassment.

43 Id.

44 Id. at 290.

45 Id. (emphasis added).

46 Id. (emphasis added).

47 Id. (emphasis added).

14

Case: 15-50558 Document: 00514035949 Page: 15 Date Filed: 06/15/2017

No. 15-50558

own official decision but instead for its employees’ independent actions.” 48 The

Court therefore required deliberate indifference to discrimination as a

component of the implied private action for damages under Title IX. 49

The goals and purpose of Title IX’s express remedial scheme would not

be accomplished or effectuated by permitting damage awards in circumstances

like those in the present case, in which the person who committed sexual

molestation is the only district employee or representative who knew of the

abuse. The fact that the perpetrator was authorized to respond to

discrimination or sexual harassment of students on behalf of the district does

not change the analysis. When only the perpetrator knows he has sexually

abused a student, it cannot be said that

• the district’s “compliance [with ‘the nondiscrimination mandate’ in

Title IX] cannot be secured by voluntary means,” 50

• the district’s “voluntary compliance is unobtainable,” 51

• the district “has been notified of its failure to comply and of the

action to be taken to effect compliance,” 52

• the district “refuses to take action to bring the recipient into

compliance,” 53

• the district refused to take action after “notice and unsuccessful

efforts to obtain compliance,” 54 or

48 Id. at 290-91 (emphasis added).

49 Id. at 290 (“We think, moreover, that the response must amount to deliberate

indifference to discrimination.”).

50 Id. at 288 (quoting 20 U.S.C. § 1682).

51 Id.

52 Id. (quoting 34 C.F.R. § 108(d) and citing § 108(c)).

53 Id. at 290.

54 Id.

15

Case: 15-50558 Document: 00514035949 Page: 16 Date Filed: 06/15/2017

No. 15-50558

• the district has made its “own official decision” 55 “not to remedy

the violation.” 56

The failure of an employee who committed sexual harassment to notify

any other “appropriate person” of the transgressions, or in this case, the serious

crimes that were committed, should be considered the offending employee’s

“independent action[],” not the district’s “own official decision” 57 or “an official

decision by the recipient not to remedy the violation.” 58 To hold that an implied

private action under Title IX permits the recovery of damages when only the

person who discriminated or molested had knowledge of his actions would

“permit[] substantial liability without regard to the recipient’s . . . corrective

actions upon receiving notice,” 59 since a district cannot be expected to take

corrective actions while the offender conceals his wrongdoing. The “premise”

of both the express and implied remedies under Title IX is “an official decision

by the recipient not to remedy the violation.” 60 Acts or omissions of the

perpetrator cannot reasonably be deemed “an official decision by the

recipient.” 61

E

As discussed above, the Supreme Court held in Gebser that “[w]here a

school district’s liability rests on actual notice principles . . . the knowledge of

the wrongdoer himself is not pertinent to the analysis.” 62 Salazar argues that

his claim is not based on actual notice principles but, rather, is based on the

District’s own actions, through Alcoser, a person designated by the District as

55 Id. at 291.

56 Id. at 290.

57 Id. at 290-91.

58 Id. at 290.

59 Id. at 289.

60 Id. at 290.

61 See id.

62 Id. at 291.

16

Case: 15-50558 Document: 00514035949 Page: 17 Date Filed: 06/15/2017

No. 15-50558

an “appropriate person” to remedy discrimination or abuse. But for the reasons

considered above, when an “appropriate person” commits sexual abuse,

violating a district’s clear policies prohibiting and condemning sexual contact

with or abuse of a student, imposing liability on the district when it had no

knowledge of the abuse would be counter to the purposes of Title IX. Title IX’s

legislative scheme would be frustrated if a recipient of Title IX funding could

be held liable for damages for sexual abuse when there was virtually no

likelihood that that the recipient would receive meaningful notice of the sexual

abuse with the corresponding opportunity to end it.

F

The district court treated the analysis in Gebser as “elements” of an

implied right of action that apply irrespective of the fact pattern presented.

But the prerequisites for liability articulated in Gebser were not all-

encompassing. They were tailored to fit the fact pattern then before the Court.

The Court framed the question it was deciding as “when a school district may

be held liable in damages in an implied right of action under Title IX . . . for

the sexual harassment of a student by one of the district’s teachers.” 63 The

answer was “damages may not be recovered in those circumstances unless an

official of the school district who at a minimum has authority to institute

corrective measures on the district’s behalf has actual notice of, and is

deliberately indifferent to, the teacher’s misconduct.” 64 That answer is not a

declaration of the “elements” of a private cause of action that will be

mechanically applied in all circumstances involving sexual abuse of a student

without any refinement for a case such as the present one.

63 Id. at 277.

64 Id. (emphasis added).

17

Case: 15-50558 Document: 00514035949 Page: 18 Date Filed: 06/15/2017

No. 15-50558

The words “at a minimum” 65 are also qualifiers. A district is liable as a

consequence of “an official[’s]” actual notice and deliberate indifference. The

Court left room for identifying attributes of such an official beyond the

“minimum” qualifiers set forth in Gebser when facts different from those in

Gebser arose and warranted additional parameters in order to insure that the

implied remedy under Title IX was aligned with the statute’s express

provisions.

IV

The only issues presented in this appeal pertain to questions of law.

There are no material factual disputes, as both parties acknowledge.

Judgment as a matter of law is proper when “a reasonable jury would not have

a legally sufficient evidentiary basis to find for the party” on a dispositive

issue. 66 The legal conclusions underlying the denial of judgment as a matter

of law, of course, are subject to de novo review. 67 An implied cause of action

under Title IX does not impose liability upon a recipient of federal funds when

only the perpetrator had actual knowledge of his sexual harassment of a

student, even if the perpetrator was authorized by the recipient to institute

corrective measures on the district’s behalf in response to sexual harassment

by others. Accordingly, the District is not liable in damages to Salazar.

65 See id. at 290 (“Consequently, in cases like this one that do not involve official policy

of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an

official who at a minimum has authority to address the alleged discrimination and to

institute corrective measures on the recipient’s behalf has actual knowledge of discrimination

in the recipient’s programs and fails adequately to respond.” (emphasis added)).

66 FED. R. CIV. P. 50(a).

67 See Tamez v. City of San Marcos, 118 F.3d 1085, 1091 (5th Cir. 1997) (“We review

de novo the magistrate judge’s legal conclusions, whether regarding federal or state law, in

entering judgment under Rule 50(b).”).

18

Case: 15-50558 Document: 00514035949 Page: 19 Date Filed: 06/15/2017

No. 15-50558

* * *

The abuse that Salazar suffered is heart-wrenching, and Alcoser’s

conduct and breach of trust is despicable. But requiring a recipient of Title IX

funds to respond in damages when its employee sexually abuses a student and

the only employee or representative of the recipient who has actual knowledge

of the abuse is the offender does not comport with Title IX’s express provisions

or implied remedies. We therefore REVERSE the district court’s judgment and

RENDER judgment for the District.

19