# Doe v. University of Illinois

> Court of Appeals for the Seventh Circuit · March 3, 1998 · 138 F.3d 653

URL: https://www.frixlaw.com/law-library/cases/6964842

## Case

- **Full name:** 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, United States of America, Intervening v. UNIVERSITY OF ILLINOIS, a public corporation, Defendant-Appellant 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 v. UNIVERSITY OF ILLINOIS, a public corporation
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** March 3, 1998
- **Citations:** 138 F.3d 653; 1998 WL 88341
- **Precedential status:** Published
- **Opinion:** Concurrence by Easterbrook
- **Judges:** Coffey, Cummings, Easterbrook, Evans, Flaum, Manion, Posner
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Board of Trustees of the University of Illinois v. Doe, 526 U.S. 1142 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6964842

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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 á conflict among the circuits on the question whether the eleventh amendment to the Constitution,as understood in Seminole Tribe v. Florida, 517 U.S. 44 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996), prevents Congress from providing that suits under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 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 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976), applies. Sex discrimination by public schools is a subject within the legislative power under § 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. § 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. § 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, — U.S. -, 117 S.Ct. 1353 , 137 L.Ed.2d 569 (1997). Although Franklin v Gwinnett County Public Schools, 503 U.S. 60 , 112 S.Ct. 1028 , 117 L.Ed.2d 208 (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. § 1983 and Maine v. Thiboutot, 448 U.S. 1 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 (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 , 99 S.Ct. *679 1946 , 60 L.Ed.2d 560 (1979), are about remedies: they add private damages to the statutory approach of terminating federal funding. Gannon infers the remedy from the right; it does not dispense vrith the need to find a right clear enough to be enforceable. Rule-making under § 1682, rather than adjudication, should be the source of gap-filling rules. Otherwise the remedy breeds its own right. Notice-and-eomment rulemaking with approval of the President, not events-and-damages “rulemaking” in common law fashion, is the method specified in § 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 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (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, — U.S. -, 118 S.Ct. 876 , 139 L.Ed.2d 865 (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 thé question, if that still appears to be necessary. It would be premature to hear this issue en banc now.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6964842. Public record. Not legal advice.