finding that determination “involving statutory construction, rather than congressional authority to legislate” was “inapposite to the inquiry into a statute’s constitutional grounding in Section 5 [of the Fourteenth Amendment]”
How later courts described this case
- finding that determination “involving statutory construction, rather than congressional authority to legislate” was “inapposite to the inquiry into a statute’s constitutional grounding in Section 5 [of the Fourteenth Amendment]”
- finding liability where school fails to respond properly 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”
- finding it reasonable 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”
- holding that college student had stated a Title IX claim for peer sexual harassment even though school officials had suspended two male students for 10 days and transferred another out of her biology class
Written by the judges who cited it.
The opinion
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, appropmte 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 661.)- 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 a 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 668), 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 know sexual harassment.
*678 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.