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
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. § 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 of 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 measure 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 position of Judges Cummings and Evans on the one hand and Judge *680 Coffey on the other; it is not even clear that Judges Cummings and Evans see completely eye to eye; nor is it 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 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 . (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). Element (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.