Davis v. Monroe Cty. Board of Ed.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________________

No. 94-9121

____________________________

D.C. Docket No. 94-CV-140-4MAC(WDO)

AURELIA DAVIS, as Next Friend of

LaShonda D.,

Plaintiff-Appellant,

versus

MONROE COUNTY BOARD OF EDUCATION, et al.,

Defendants-Appellees.

____________________________

Appeal from the United States District Court for the

Middle District of Georgia

____________________________

(August 21, 1997)

Before HATCHETT, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,

DUBINA, BLACK, CARNES and BARKETT, Circuit Judges,* and

KRAVITCH** and HENDERSON, Senior Circuit Judges.

_________________________

*Judge R. Lanier Anderson recused himself and did not participate

in this decision.

**Senior Judge Phyllis A. Kravitch, who was a member of the en

banc court which heard oral argument in this case, took senior

status on January 1, 1997, and has elected to participate in this

decision pursuant to 28 U.S.C. § 46(c).

TJOFLAT, Circuit Judge:

Appellant, Aurelia Davis, brought this suit against the

Board of Education of Monroe County, Georgia, (the "Board") and

two school officials, Charles Dumas and Bill Querry, on behalf of

her daughter, LaShonda Davis. The complaint alleged that the

defendants violated Section 901 of the Education Amendments of

1972, Pub. L. No. 92-318, 86 Stat. 235, 373 (1972) (codified as

amended at 20 U.S.C. § 1681 (1994)) ("Title IX"), and 42 U.S.C.

§ 19831 by failing to prevent a student at Hubbard Elementary

School ("Hubbard") from sexually harassing LaShonda while she was

a student there. Appellant separately alleged that the

defendants discriminated against LaShonda on the basis of race in

violation of 42 U.S.C. § 1981.2 Appellant sought injunctive

1

This section provides, "Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of any

State . . . subjects, or causes to be subjected, any . . . person

. . . to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured . . . ." 42 U.S.C. § 1983 (1994).

2

Davis actually alleged that the named defendants

discriminated on the basis of race in violation of "the Education

Act of 1972 and the Civil Rights Act of 1991." Davis was

apparently referring to the Education Amendments of 1972, Pub. L.

No. 92-318, 86 Stat. 235 (1972), and the Civil Rights Act of

1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991). The former

act, however, does not address racial discrimination in

education, and the latter act does not provide a cause of action

for racial discrimination in education. The district court

construed this portion of the complaint to allege a violation of

42 U.S.C. § 1981, which does provide a cause of action against

certain types of racial discrimination.

2

relief and $500,000 in compensatory and punitive damages.

The district court dismissed appellant's complaint in its

entirety for failure to state a claim upon which relief can be

granted. See Aurelia D. v. Monroe County Bd. of Educ., 862 F.

Supp. 363, 368 (M.D. Ga. 1994); see also Fed. R. Civ. P.

12(b)(6). Appellant appealed the district court's dismissal of

her Title IX claim against the Board,3 arguing that a school

board can be held liable under Title IX for its failure to

3

Davis did not appeal the district court's dismissal of

her Title IX claim with regard to individual defendants Dumas and

Querry. Davis similarly did not appeal the district court's

dismissal of her § 1981 claim. Therefore, we do not consider

these claims.

With regard to Davis' § 1983 claim, the complaint seemed to

allege that the defendants were liable under this provision

solely because they violated Title IX. Davis, however,

apparently argued before the district court that the defendants

were liable under § 1983 for infringing LaShonda's rights under

the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. The district court dismissed this implied

claim under Rule 12(b)(6). See Aurelia D., 862 F. Supp. at 366.

Davis did not appeal the dismissal of her § 1983 claim to

the extent it was based on the defendants' alleged violation of

Title IX. Accordingly, that claim is not before us. She did,

however, appeal the dismissal of her § 1983 claim to the extent

it was based on the defendants' alleged violation of the Due

Process Clause. In addition, Davis argued for the first time

before the three-judge panel that the same § 1983 claim

encompassed a violation of the Equal Protection Clause of the

Fourteenth Amendment.

The panel rejected Davis' due-process and equal-protection

arguments and affirmed the dismissal of her steadily expanding §

1983 claim under 11th Cir. R. 36-1. See Davis v. Monroe County

Bd. of Educ., 74 F.3d 1186, 1188 (1996). Davis did not petition

the court to rehear this ruling en banc, and we see no reason to

disturb the panel's decision sua sponte. We therefore do not

consider Davis' various § 1983 claims. In sum, we address only

Davis' Title IX claim against the Board.

3

prevent sexual harassment among students. On appeal, a divided

three-judge panel reinstated her Title IX claim against the

Board. See Davis v. Monroe County Bd. of Educ., 74 F.3d 1186,

1195 (11th Cir. 1996). At the Board's request, we granted

rehearing en banc to consider appellant's Title IX claim,4 and we

now affirm the district court's dismissal of this claim.

I.

A.

We review de novo the district court's dismissal of

appellant's complaint for failure to state a claim upon which

relief can be granted. See McKusick v. City of Melbourne, 96

F.3d 478, 482 (11th Cir. 1996). To this end, we take as true the

allegations appellant has set forth in her complaint and examine

whether those allegations describe an injury for which the law

provides relief. See Welch v. Laney, 57 F.3d 1004, 1008 (11th

Cir. 1995). We construe appellant's allegations liberally

because the issue is not whether appellant will ultimately

prevail but whether she is entitled to offer evidence to support

her claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct.

1683, 1686, 40 L. Ed. 2d 90 (1974). We begin by describing the

4

See Davis v. Monroe County Bd. of Educ., 91 F.3d 1418

(11th Cir. 1996). Granting rehearing en banc vacated the panel

opinion by operation of law. 11th Cir. R. 35-11.

4

allegations contained in appellant's complaint.

B.

LaShonda Davis was enrolled as a fifth-grade student at

Hubbard during the 1992-1993 school year. During that school

year, Bill Querry was the principal of Hubbard, and Diane Fort,

Joyce Pippin, and Whit Maples were teachers at the school. The

complaint alleges that the Board administered federally funded

educational programs at Hubbard and supervised the school's

employees, including Principal Querry and Teachers Fort, Pippin,

and Maples.

According to the complaint, a fifth-grade student named

"G.F." was in several of LaShonda's classes and initially was

assigned to the seat next to LaShonda in Fort's classroom. On

December 17, 1992, while in Fort's classroom, G.F. allegedly

tried to touch LaShonda's breasts and vaginal area. G.F. also

allegedly directed vulgarities at LaShonda, such as "I want to

get in bed with you" and "I want to feel your boobs." LaShonda

complained to Fort. After school that day, LaShonda also told

her mother, the appellant, about G.F.'s behavior. The complaint

states that G.F. engaged in similar (although unspecified)

5

conduct on or about January 4, 1993,5 and again on January 20,

1993. LaShonda allegedly reported both incidents to Fort and to

appellant. After one of these first three incidents, appellant

called Fort, who told appellant in the course of their

conversation that Principal Querry knew about one of the

incidents.

G.F.'s misconduct continued. On February 3, 1993, G.F.

allegedly placed a door-stop in his pants and behaved in a

sexually suggestive manner toward LaShonda during their physical

education class. LaShonda reported this incident to Maples, who

was the physical education teacher. On February 10, 1993, G.F.

engaged in unspecified conduct similar to that of the December 17

incident in the classroom of Pippin, another of LaShonda's

teachers. LaShonda notified Pippin of G.F.'s behavior and later

told appellant, who then called Pippin to discuss the incident.

On March 1, 1993, G.F. directed more unspecified, offensive

conduct toward LaShonda during physical education class.

LaShonda reported G.F. to Maples and Pippin. An unidentified

teacher allegedly told LaShonda that Principal Querry was not

ready to listen to her complaint about G.F.

At some point around March 17, 1993, Fort allowed LaShonda

5

The complaint actually alleges that this second

instance of harassment occurred "on or about January 2, 1993."

We note that January 2, 1993 was a Saturday. Presumably, there

was no school on Saturday, so G.F. could not have sexually

harassed LaShonda at Hubbard on that day. Friday, January 1,

1993, was a holiday. Accordingly, we assume for appellant's

benefit that the alleged harassment occurred on or about January

4, 1993.

6

to change assigned seats away from G.F. G.F., however, persisted

in his unwelcome attentions. On April 12, 1993, he rubbed his

body against LaShonda in a manner she considered sexually

suggestive; this incident occurred in the hallway on the way to

lunch. LaShonda again complained to Fort.

Lastly, on May 19, 1993, LaShonda complained to appellant

after school about more unspecified behavior by G.F. Appellant

and LaShonda then paid a visit to Principal Querry to discuss

G.F.'s conduct. At this meeting, Querry asked LaShonda why no

other students had complained about G.F. During this meeting,

Querry also told appellant, "I guess I'll have to threaten [G.F.]

a little bit harder." On the same day, May 19, G.F. was charged

with sexual battery, a charge which he apparently did not deny.

The complaint does not tell us who summoned the police.

In all, the complaint describes eight separate instances of

sexual harassment by G.F. These eight instances of alleged

harassment occurred, on average, once every twenty-two days over

a six-month period. Three instances occurred in Fort's

classroom; two occurred in Maples' physical education class; one

occurred in Pippin's classroom; one occurred in a school hallway;

and one occurred in an unspecified location. LaShonda reported

four instances of alleged harassment to Fort, two to Maples, and

two to Pippin. LaShonda reported the final instance of

harassment, the May 19 incident, to appellant and Querry. The

complaint does not allege that any faculty member knew of more

than four instances of harassment, and the complaint indicates

7

that Principal Querry learned of only one instance of harassment

before his meeting with appellant and LaShonda on May 19.

The complaint does not state what action each of the

teachers took upon being informed by LaShonda of G.F.'s demeaning

conduct. We assume for appellant's benefit that the teachers

took no action other than Fort's apparent notification of

Principal Querry after one of the first three instances of

alleged harassment and Fort's decision around March 17, 1993, to

move LaShonda's assigned seat away from that of G.F. We will

also accept as true that Principal Querry took no measures

against G.F. other than threatening him with disciplinary action

at some point before his May 19 meeting with appellant and her

daughter. For example, we assume for appellant's benefit that

someone other than the school staff instigated the prosecution of

G.F.

Appellant claims that LaShonda suffered mental anguish

because of G.F.'s behavior. As indicia of this emotional trauma,

the complaint states that LaShonda's grades dropped during the

1992-1993 school year and that LaShonda wrote a suicide note in

April 1993. Based on the above allegations, appellant contends

that "[t]he deliberate indifference by Defendants to the

unwelcomed [sic] sexual advances of a student upon LaShonda

created an intimidating, hostile, offensive and abuse [sic]

school environment in violation of Title IX." We therefore

consider whether Title IX allows a claim against a school board

based on a school official's failure to remedy a known hostile

8

environment6 caused by the sexual harassment of one student by

another ("student-student sexual harassment").

II.

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. § 1681 (1994). Although nothing in the

plain language of Title IX speaks to the issue of student-student

sexual harassment, several district courts have held that Title

IX allows a student to sue a school board for failing to prevent

hostile-environment sexual harassment by another student. See

Doe v. Londonderry Sch. Dist., No. 95-469-JD, http://lw.bna.com/

#0708 (D. N.H. June 13, 1997); Nicole M. v. Martinez Unified Sch.

Dist., No. C-93-4531 MHP, 1997 WL 193919, at *8 (N.D. Cal. Apr.

6

The term "hostile environment" sexual harassment

originated in employment litigation under § 703 of the Civil

Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 255 (1964)

(codified at 42 U.S.C. § 2000e-2 (1994)) ("Title VII"). Hostile-

environment sexual harassment occurs whenever an employee's

speech or conduct creates an atmosphere that is sufficiently

severe or pervasive to alter another employee's working

conditions. See Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 - 22, 114 S. Ct. 367, 370 - 71, 126 L. Ed. 2d 295 (1993). As

discussed infra, n.13, we conclude that Title VII standards of

liability, borrowed from the employment context, do not control

our resolution of this case. Nevertheless, for purposes of our

discussion of appellant's claim, we construe the complaint to

allege that G.F.'s speech or conduct created an atmosphere that

was sufficiently hostile or abusive to alter the conditions of

LaShonda's learning environment.

9

15, 1997); Collier v. William Penn Sch. Dist., 956 F. Supp. 1209,

1213 - 14 (E.D. Pa. 1997); Bruneau By and Through Schofield v.

South Kortright Cent. Sch. Dist., 935 F. Supp. 162, 172 (N.D.

N.Y. 1996); Doe v. Petaluma City Sch. Dist., 830 F. Supp. 1560,

1576 (N.D. Cal. 1993), rev'd on other grounds, 54 F.3d 1447 (9th

Cir. 1995); Burrow v. Postville Community Sch. Dist., 929 F.

Supp. 1193, 1205 (N.D. Iowa 1996); Wright v. Mason City Community

Sch. Dist., 940 F. Supp. 1412, 1419 - 20 (N.D. Iowa 1996); Bosley

v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006, 1023 (W.D. Mo.

1995); Oona R.-S. v. Santa Rosa City Schs., 890 F. Supp. 1452,

1469 (N.D. Cal. 1995); Patricia H. v. Berkeley Unified Sch.

Dist., 830 F. Supp. 1288, 1293 (N.D. Cal. 1993). But see Garza

v. Galena Park Indep. Sch. Dist., 914 F. Supp. 1437, 1438 (S.D.

Tex. 1994) ("[A] student cannot bring a hostile environment claim

under Title IX.").

The courts of appeals, however, have been less enthusiastic.

The Fifth Circuit has held that no cause of action exists where a

school board merely knew or should have known of peer sexual

harassment and failed to act. See Rowinsky v. Bryan Indep. Sch.

Dist., 80 F.3d 1006, 1016 (5th Cir.), cert. denied, --- U.S. ---,

117 S. Ct. 165, 136 L. Ed. 2d 108 (1996). Other circuits have

resolved complaints of student-student sexual harassment without

deciding whether a cause of action exists under Title IX for this

alleged harm. See, e.g., Seamons v. Snow, 84 F.3d 1226, 1232 -

33 (10th Cir. 1996) (holding that the plaintiff failed to state a

valid claim for student-student sexual harassment because he

10

failed to allege that the harassment in question was on account

of his sex); Murray v. New York Univ. College of Dentistry, 57

F.3d 243, 250 (2nd Cir. 1995) (holding that, even if Title IX

created a private cause of action for sexual harassment by a non-

employee of the school, plaintiff failed to allege that school

officials knew or should have known of the harassment); Doe v.

Petaluma City Sch. Dist., 54 F.3d 1447, 1452 (9th Cir. 1994)

(holding that a defendant school counselor was entitled to

qualified immunity against a claim that he failed to respond to

known sexual harassment of the plaintiff by other students).

The Supreme Court has not squarely addressed the issue of

student-student sexual harassment. In general, the Court has

allowed private plaintiffs to proceed under Title IX only in

cases that allege intentional gender discrimination by the

administrators of educational institutions. According to the

Court, plaintiffs can state a claim under Title IX by alleging

that a federally funded educational institution, acting through

its employees, intentionally subjected them to discrimination in

its educational programs or activities. See Cannon v. University

of Chicago, 441 U.S. 677, 709, 99 S. Ct. 1946, 1964, 60 L. Ed. 2d

560 (1979). For example, where a teacher engaged a student in

sexually oriented conversations, solicited dates from her,

forcibly kissed her on the mouth, and thrice removed her from

another class in order to engage in coercive sexual intercourse

with her in a private office at the school, the Court found that

the school board could be held liable for his actions. See

11

Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 63 - 64, 76,

112 S. Ct. 1028, 1031, 1038, 117 L. Ed. 2d 208 (1992).

Neither the Supreme Court nor this court has ever found,

however, that a school board can be held liable for failing to

prevent non-employees from discriminating against students on the

basis of sex. Appellant does not allege that any employee of the

Board intentionally discriminated against LaShonda by personally

participating in G.F.'s offensive conduct toward her. Rather,

appellant alleges that the Board violated Title IX by failing

adequately to respond to LaShonda's complaints. Neither the

Supreme Court nor this court has considered whether a Title IX

plaintiff can proceed under this theory. In short, by seeking

direct liability of the Board for the wrongdoing of a student,

appellant argues for an extension of liability under Title IX.

We examine the legislative history of Title IX to determine

whether Congress intended this provision to reach appellant's

allegations.

A.

The provision now known as Title IX emerged from a flurry of

bills regarding public education. In June and July 1970, the

House Subcommittee on Education of the House Committee on

Education and Labor, under the leadership of Representative Edith

Green, held hearings on gender discrimination in federally funded

educational programs. See Discrimination Against Women: Hearings

12

on Section 805 of H.R. 16098 Before the Special Subcomm. on

Education of the House Comm. on Education and Labor, 91st Cong.,

2d Sess. (1970) [hereinafter House Hearings]. None of the

testimony before Representative Green's subcommittee concerned

student-student sexual harassment or related issues, such as

school discipline. Instead, the subcommittee's work focused on

eliminating gender discrimination in school admissions and in the

employment decisions of school administrators.

By 1970, section 703 of the Civil Rights Act of 1964 already

prohibited gender discrimination in employment. See Civil Rights

Act of 1964, Pub. L. No. 88-352, § 703, 78 Stat. 241, 255 (1964)

(codified at 42 U.S.C. § 2000e-2 (1994)) ("Title VII").7 Title

VII, however, did not apply to educational institutions. See §

702, 78 Stat. at 255 (codified as amended at 42 U.S.C. § 2000e-1

(1994)). Similarly, section 601 of the Civil Rights Act

prohibited racial discrimination by all recipients of federal

funding. See § 601, 78 Stat. at 252 (codified at 42 U.S.C. §

2000d (1994)) ("Title VI").8 Title VI did not ban gender

discrimination by recipients of federal funding.

7

Title VII states, "It shall be an unlawful employment

practice for an employer . . . to discriminate against any

individual with respect to . . . compensation, terms, conditions,

or privileges of employment, because of such individual's . . .

sex." 42 U.S.C. § 2000e-2(a)(1) (1994).

8

Title VI provides that "[n]o person in the United

States shall, on the ground of race, color, or national origin,

be excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving Federal financial assistance." 42 U.S.C. § 2000d

(1994).

13

To fill this gap in antidiscrimination legislation, the

subcommittee drafted a proposed amendment to H.R. 16098, 91st

Cong. (1970). This amendment would have applied to schools the

non-discrimination requirements of Title VII and added "sex" to

the types of discrimination banned by Title VI. See House

Hearings, supra, at 1. In other words, the subcommittee's

amendment was designed to bridge the gap between Title VII and

Title VI. The amendment, however, never reached the House floor.

See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 523 n.13, 102

S. Ct. 1912, 1919, n.13, 72 L. Ed. 2d 299 (1982).

On April 6, 1971, a new education bill was introduced in the

House. See H.R. 7248, 92nd Cong. (1971). This bill contained a

provision similar to the amendment proposed by Representative

Green's subcommittee nearly one year earlier. Title X of H.R.

7248 prohibited gender discrimination in any education program or

activity receiving federal financial support. H.R. Rep. No. 92-

554, at 108 (1972), reprinted in 1972 U.S.C.C.A.N. 2462, 2511 -

12. The House report on H.R. 7248 described this provision as a

response to discriminatory admissions policies and employment

practices at federally funded schools. See id. Once again,

neither the House report nor the underlying testimony discussed

student-student sexual harassment.

While the House bill remained in committee, the Senate was

considering a similar education bill. See S. 659, 92nd Cong.

(1971). The Senate bill emerged from the Senate Committee on

Labor and Public Welfare on August 3, 1971, without any

14

antidiscrimination provision at all. Consequently, on August 5,

1971, Senator Birch Bayh introduced on the Senate floor an

amendment to the committee's version of S. 659. See 117 Cong.

Rec. 30,156. (1971). His amendment, like the House provision

drafted by Representative Green's subcommittee, extended the

antidiscrimination provisions of the Civil Rights Act of 1964 to

gender discrimination by federally funded "institutions of higher

learning."9 See id. at 30,155. In defending his amendment,

Senator Bayh did not discuss student-student sexual harassment,

nor did he discuss school discipline. He focused on gender

discrimination in school admissions and employment opportunities

for female teachers. See id. at 30,155 - 56. In any event, the

Senate rejected Bayh's amendment as non-germane, id. at 30,415,

and the Senate passed S. 659 on August 6, 1971, without an

antidiscrimination provision.

On November 3, 1971, the House began consideration of S.

659, as passed by the Senate. The House "amended" the Senate

bill by striking virtually the entire contents of S. 659 and

replacing it with the contents of H.R. 7248, including the

antidiscrimination provision. See S. Rep. No. 92-604, at 1

(1972), reprinted in 1972 U.S.C.C.A.N. 2595, 2595. The House

9

Senator Bayh's first amendment provided, "No person . .

. shall, on the ground of sex, . . . be subject to discrimination

under any program or activity conducted by a public institution

of higher education, or any school or department of graduate

education, which is a recipient of Federal financial assistance

for any education program or activity." 117 Cong. Rec. at

30,156.

15

made this change without official comment and passed its version

of S. 659 on November 4, 1971. See 117 Cong. Rec. at 30,882.

On November 24, 1971, the Senate, by unanimous consent,

referred the House version of S. 659 back to the Committee on

Labor and Public Welfare, which proceeded to amend the House

version to conform to the original Senate version. See S. Rep.

No. 92-604, at 1 - 2 (1972), reprinted in 1972 U.S.C.C.A.N. 2595,

2595 - 96. Once again, the committee did not discuss gender

discrimination at all, much less sexual harassment among

students. On February 7, 1972, the Senate committee sent its own

version of S. 659 back to the floor of the Senate. See 118 Cong.

Rec. 2806 (1972).

Once the bill returned to the Senate floor, Senator Bayh

again introduced an amendment to add an antidiscrimination

provision.10 See id. at 5802 - 03. Bayh's proposal was intended

to "close[] loopholes in existing legislation relating to general

education programs and employment resulting from those programs."

Id. at 5803. In support of his amendment, Senator Bayh stated,

we are dealing with three basically different types of

discrimination here[:] . . . discrimination in

admission to an institution, discrimination of [sic]

available services or studies within an institution

once students are admitted, and discrimination in

10

Senator Bayh's second amendment stated, "No person . .

. shall, on the basis of sex, . . . be subjected to

discrimination under any education program or activity receiving

Federal financial assistance . . . ." 118 Cong. Rec. at 5803.

16

employment within an institution, as a member of the

faculty or whatever.

Id. at 5812. To counter these problems, Senator Bayh proposed a

provision he thought would "cover such crucial aspects as

admissions procedures, scholarships, and faculty employment, with

limited exceptions." Id. at 5803. Yet again, no senator

mentioned student-student sexual harassment or school discipline.

The Senate adopted Bayh's second amendment on February 28,

1972. See 118 Cong. Rec. at 5815 (1972). Because of

irreconcilable differences between the House and Senate versions

of S. 659, both Houses referred the bill to a conference

committee. See S. Conf. Rept. No. 92-798, at 1 (1972). The

conference committee reported out a joint bill containing the

antidiscrimination measure now known as Title IX. The committee,

however, did not explain its reasons for including Title IX. The

conference bill passed both Houses and was signed into law on

June 23, 1972. See 118 Cong. Rec. at 22,702. Throughout this

long legislative history, the drafters of Title IX never

discussed student-student sexual harassment or the related issue

of school discipline.

B.

While the legislative history of Title IX does not indicate

that Congress authorized a private cause of action for student-

student sexual harassment, the legislative history does show that

17

Title IX was enacted under the Spending Clause of Article I. See

U.S. Const. art. I, § 8, cl. 1.11 When Congress conditions the

receipt of federal funding upon a recipient's compliance with

federal statutory directives, Congress is acting pursuant to its

spending power. See Guardians Ass'n v. Civil Serv. Comm'n, 463

U.S. 582, 598 - 99, 103 S. Ct. 3221, 3230 - 31, 77 L. Ed. 2d 866

(1983) (opinion of White, J.). The legislative history of Title

IX indicates that Congress intended to impose upon recipients of

federal educational assistance a requirement of non-

discrimination on the basis of sex. The Spending Clause

authorized Congress to impose this condition.

Representative Green put it succinctly: "If we are writing

the law, I would say that any institution could be all men or all

women, but my own feeling is that they do it with their own funds

and not taxpayers' funds." Higher Education Amendments of 1971:

Hearings on H.R. 32, H.R. 5191, H.R. 5192, H.R. 5193, and H.R.

7248 Before the Special Subcomm. on Education of the House Comm.

on Education and Labor, 92nd Cong., 1st Sess. 581 (1971).

Representative Green also quoted with approval President Nixon,

who had stated, "Neither the President nor the Congress nor the

conscience of the Nation can permit money which comes from all

the people to be used in a way which discriminates against some

of the people." 117 Cong. Rec. at 39,257 (1971) (statement of

11

Section 8 of Article I provides, in part, that "[t]he

Congress shall have [the] Power To . . . provide for the . . .

general Welfare of the United States." U.S. Const. art. I, § 8,

cl. 1.

18

Rep. Green). To Senator Bayh, the reach of Title IX was clearly

restricted to federally funded institutions. See 118 Cong. Rec.

at 5812. In support of Title IX, Senator McGovern stated, "I

urge my colleagues to take every opportunity to prohibit Federal

funding of sex discrimination." 117 Cong. Rec. at 30,158. This

legislative history clearly shows that Congress intended Title IX

to be a "typical 'contractual' spending-power provision."12

Guardians Ass'n, 463 U.S. at 599, 103 S. Ct. at 3231.

In addition to these indications of congressional intent,

similarities between Title IX and Title VI indicate that Title IX

was enacted pursuant to the Spending Clause. As noted above,

Title VI prohibits recipients of federal funding from engaging in

race discrimination. In Guardians Association v. Civil Service

12

The Supreme Court has left open the question of whether

Title IX was enacted under the Spending Clause. See Franklin,

503 U.S. at 75 n.8, 112 S. Ct. at 1038 n.8. One could argue, as

did the petitioner in Franklin, that Title IX was enacted under §

5 of the Fourteenth Amendment, which provides Congress with the

authority to enact legislation preventing states from "deny[ing]

to any person . . . the equal protection of the laws." U.S.

Const. amend. XIV, § 1, cl. 4.

The Equal Protection Clause, however, only protects against

action by state-sponsored entities. See Shelley v. Kraemer, 334

U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948). Federal

funding does not make a public school a state actor. See

Blackburn v. Fisk University, 443 F.2d 121, 123 (6th Cir. 1971).

Thus, if Title IX had been enacted under the Fourteenth

Amendment, then the antidiscrimination provision of Title IX

would not reach federally funded schools that were not state

actors. We think that the plain language of Title IX commands a

different result: no school that receives federal funding may

discriminate on the basis of gender. Therefore, we conclude that

Title IX was enacted pursuant to a power that can reach non-state

actors as well as state actors -- the spending power. See

Rowinsky, 80 F.3d at 1013 n.14.

19

Commission, at least six members of the Supreme Court agreed that

Title VI was enacted under the Spending Clause. See 463 U.S. at

598 - 99, 629, 638, 103 S. Ct. at 3230 - 31, 3247, 3251; see also

Lau v. Nichols, 414 U.S. 563, 568 - 69, 94 S. Ct. 786, 789, 39 L.

Ed. 2d 1 (1974) (describing how a school district "contractually

agreed to comply with title VI" when it accepted federal

funding).

As Justice White quoted from the legislative history of

Title VI, "It is not a regulatory measure, but an exercise of the

unquestioned power of the Federal Government to fix the terms on

which Federal funds shall be disbursed." Guardians Ass'n, 463

U.S. at 599, 103 S. Ct. at 3231 (quoting 110 Cong. Rec. 6546

(1964) (quoting Oklahoma v. Civil Serv. Comm'n, 330 U.S. 127,

143, 67 S. Ct. 544, 553, 91 L. Ed. 794 (1947))) (internal

quotation marks omitted). Justice White summed up the

legislative philosophy behind Title VI: "Stop the

discrimination, get the money; continue the discrimination, do

not get the money." Guardians Ass'n, 463 U.S. at 599, 103 S. Ct.

at 3231 (quoting 110 Cong. Rec. at 1542) (internal quotation

marks omitted). This interpretation matches the plain language

of Title VI, which conditions the disbursement of federal funds

on the recipient's agreement not to discriminate on the basis of

race. See 42 U.S.C. § 2000d (1994).

The language of Title IX is virtually identical to the

language of Title VI. See 117 Cong. Rec. at 30,156 (statement of

Sen. Bayh). The only differences are the substitution of the

20

words "on the basis of sex" for the words "on the ground of race,

color, or national origin" and the insertion of the word

"educational" in front of the words "program or activity." See

Grove City College v. Bell, 465 U.S. 555, 586, 104 S. Ct. 1211,

1228, 79 L. Ed. 2d 516 (1984) (Brennan, J., concurring in part

and dissenting in part); compare 42 U.S.C. § 2000d with 20 U.S.C.

§ 1681(a). Not surprisingly, the Supreme Court has found that

"Title IX was patterned after Title VI." Cannon, 441 U.S. at

694, 99 S. Ct. at 1956.

The Supreme Court's study of the legislative history of

Title IX has led it to conclude that the drafters of Title IX

intended that courts interpret it in the same way they have

interpreted Title VI. Id. at 696, 99 S. Ct. at 1957. Therefore,

we find that Title IX, like Title VI, was enacted under Congress'

power to spend for the general welfare of the United States. See

Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 654 (5th

Cir. 1997); Lieberman v. University of Chicago, 660 F.2d 1185,

1187 (7th Cir. 1981), cert. denied, 456 U.S. 937, 102 S. Ct.

1993, 72 L. Ed. 2d 456 (1982). We now consider the implications

of this finding.

III.

A.

When Congress enacts legislation pursuant to the Spending

21

Clause, it in effect offers to form a contract with potential

recipients of federal funding. See Pennhurst v. Halderman, 451

U.S. 1, 17, 101 S. Ct. 1531, 1540, 67 L. Ed. 2d 694 (1981).

Recipients who accept federal monies also accept the conditions

Congress has attached to its offer. See South Dakota v. Dole,

483 U.S. 203, 206, 107 S. Ct. 2793, 2795 - 96, 97 L. Ed. 2d 171

(1987). A prospective recipient is free to decline a grant of

federal funding. See New York v. United States, 505 U.S. 144,

168, 112 S. Ct. 2408, 2424, 120 L. Ed. 2d 120 (1992). Similarly,

a current recipient may withdraw from a federal program and

decline further funding if it so chooses. See Guardians Ass'n,

463 U.S. at 596, 103 S. Ct. at 3229. The freedom of recipients

to decline prospectively or to terminate retrospectively a grant

of federal funding ensures that they will remain responsive to

the preferences of their local constituents. See New York, 505

U.S. at 168, 112 S. Ct. at 2424.

To ensure the voluntariness of participation in federal

programs, the Supreme Court has required Congress to give

potential recipients unambiguous notice of the conditions they

are assuming when they accept federal funding. Pennhurst, 451

U.S. at 17, 101 S. Ct. at 1540. A spending power provision must

read like a prospectus and give funding recipients a clear signal

of what they are buying. The Court has explained, "By insisting

that Congress speak with a clear voice, we enable the States to

exercise their choice knowingly, cognizant of the consequences of

their participation." Id. With regard to the case at hand,

22

"Congress must be unambiguous in expressing to school districts

the conditions it has attached to the receipt of federal funds."

Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 398 (5th Cir.

1996), cert. denied, --- U.S. ---, --- S. Ct. ---, --- L. Ed. 2d

--- (1997). We therefore consider whether Congress gave the

Board unambiguous notice that it could be held liable for failing

to stop G.F.'s harassment of LaShonda.

Appellant and the United States Department of Justice, as

amicus curiae, argue that Title IX gave the Board clear notice of

this form of liability. Appellant points to the Supreme Court's

decision in Franklin. In Franklin, the Court suggested that

"th[e] notice problem does not arise in a case . . . in which

intentional discrimination is alleged." 503 U.S. at 74 - 75, 112

S. Ct. at 1037. The Court stated that the plain language of

Title IX imposes on schools a duty not to discriminate on the

basis of sex, and when a school teacher sexually harasses a

student, that teacher is discriminating on the basis of sex. Id.

at 75, 112 S. Ct. at 1037. Appellant argues that a school

employee is intentionally discriminating on the basis of sex when

he or she fails to prevent one student from sexually harassing

another.13 Hence, appellant asserts that the school board here

13

Appellant and the Department of Justice argue that we

should use Title VII standards of liability to interpret Title

IX. An employer is directly liable under Title VII if it is

deliberately indifferent to peer sexual harassment in the

workplace. See Faragher v. City of Boca Raton, 111 F.3d 1530,

1538 - 39 (11th Cir. 1997) (en banc). Appellant argues that a

school should also be liable if it is deliberately indifferent to

peer sexual harassment at school.

23

The superficial appeal of this argument has attracted the

adherence of a few courts. See, e.g., Bruneau, 935 F. Supp. at

170 - 71. These courts have applied Title VII standards of

liability to Title IX cases simply because (1) Title VII and

Title IX both deal with sexual harassment and (2) the Supreme

Court once cited a Title VII case in discussing liability under

Title IX, see generally Franklin, 503 U.S. at 75, 112 S. Ct. at

1037 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 64,

106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986)). See Bruneau, 935

F. Supp. at 170 - 71.

However, the Supreme Court has never discussed student-

student sexual harassment or generally applied Title VII

jurisprudence to Title IX cases. Perhaps for this reason, some

courts that have imposed Title VII-type liability under Title IX

have refused -- without much explanation -- to apply all of Title

VII jurisprudence to Title IX. See, e.g., Bruneau, 935 F. Supp.

at 169 - 70 ("[T]he Court cautions that by holding that Title VII

legal standards apply to an analysis of Title IX claims, the

Court is not holding that the entirety of Title VII jurisprudence

must be applied to Title IX."). Other courts have altogether

refused to apply Title VII jurisprudence to Title IX. See, e.g.,

Rosa H., 106 F.3d at 656 ("Franklin's single citation to Meritor

Savings to support the Court's conclusion that sexual harassment

is sex discrimination does not by itself justify the importation

of other aspects of Title VII law into the Title IX context.").

We decline appellant's invitation to use Title VII standards

of liability to resolve this Title IX case. See Doe v. Petaluma

City Sch. Dist., 54 F.3d 1447, 1450 - 51 (9th Cir. 1994). First,

Title VII and Title IX are worded differently. If Congress

wished Title IX to be interpreted like the earlier-enacted Title

VII, Congress would have written Title IX to read like Title VII.

Congress did not. Interpreting the plain language of different

statutes does not automatically produce the same result simply

because both statutes proscribe similar behavior.

Second, Title VII was enacted under the far-reaching

Commerce Clause and § 5 of the Fourteenth Amendment. See

E.E.O.C. v. Pacific Press Publ'g Ass'n, 676 F.2d 1272, 1279 n.10

(9th Cir. 1982). Title IX was not, and consequently its reach is

narrower.

Third, the exposition of liability under Title VII depends

upon agency principles. See Meritor, 477 U.S. at 72, 106 S. Ct.

at 2408; Faragher, 111 F.3d at 1534 - 36. Agency principles are

useless in discussing liability for student-student harassment

under Title IX, because students are not agents of the school

board. See generally Restatement (Second) of Agency § 1 (1958)

24

had sufficient notice, for purposes of the Spending Clause, that

it could be held liable. We disagree.14

(defining an agency relationship as one in which the principal

consents to representation by the agent and the agent consents to

control by the principal). Therefore, even if employers owe to

employees some sort of nondelegable duty to eliminate peer

harassment in the workplace, see generally id. § 492 (discussing

employers' duty to provide reasonably safe working conditions for

their employees), schools owe to students no comparable duty. In

short, Title VII jurisprudence does not control the outcome of

this case.

14

We note that neither this court nor the Supreme Court

in Franklin fully addressed the question of whether a student can

state a claim under Title IX for sexual harassment by a teacher -

- much less whether a student can state a claim under Title IX

for sexual harassment by another student.

The defendant school board in Franklin successfully moved

the district court to dismiss Franklin's Title IX suit on the

ground that "compensatory relief is unavailable for violations of

Title IX," a holding which this court affirmed. Franklin v.

Gwinnett County Pub. Schs., 911 F.2d 617, 618 (11th Cir. 1990).

The school board apparently conceded on appeal that the

plaintiff's allegations stated a claim under Title IX. See id.

at 619.

Similarly, the school board conceded before the Supreme

Court that teacher-student sexual harassment violated Title IX.

See Brief for Respondents at 2, 7, Franklin v. Gwinnett County

Sch. Dist., 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208

(1992) (No. 90-918). The Supreme Court granted certiorari to

consider "whether the implied right of action under Title IX . .

. supports a claim for monetary damages." Franklin, 503 U.S. at

62 - 63, 112 S. Ct. at 1031. The Court emphasized that "the

question of what remedies are available under a statute that

provides a private right of action is 'analytically distinct'

from the issue of whether such a right exists in the first

place." Id. at 65 - 66, 112 S. Ct. at 1032. In fact, the

Franklin Court rejected the arguments of the United States as

amicus curiae precisely because those arguments concerned the

existence vel non of a cause of action for teacher-student sexual

harassment, a question which the Court considered "irrelevant."

Id. at 69, 112 S. Ct. at 1034.

The Franklin Court discussed the notice element of the

Spending Clause solely to counter the school board's argument

that "the normal presumption in favor of all appropriate remedies

should not apply because Title IX was enacted pursuant to

25

The terms of Title IX gave educational institutions notice

that they must prevent their employees from themselves engaging

in intentional gender discrimination. See Franklin, 503 U.S. at

75, 112 S. Ct. at 1037. Thus, school administrators cannot deny

admission to female applicants because of their gender. See

Cannon, 441 U.S. at 709, 99 S. Ct. at 1964. School

administrators cannot discriminate against teachers on account of

sex. See North Haven Bd. of Educ., 456 U.S. at 530, 102 S. Ct.

at 1922 - 23. Teachers cannot sexually harass their students.

See Franklin, 503 U.S. at 74 - 75, 112 S. Ct. at 1037.

The present complaint, however, does not allege that a

school employee discriminated against LaShonda in any of the

foregoing ways. The complaint does not allege, for example, that

Fort, Maples, Pippin, or Querry sexually harassed LaShonda.

Rather, the complaint alleges that these individuals failed to

take measures sufficient to prevent a non-employee from

discriminating against LaShonda. We do not think that the Board

was on notice when it accepted federal funding that it could be

held liable in this situation.

B.

Congress' Spending Clause power." Id. at 74, 112 S. Ct. at 1037.

Viewed in this light, the Supreme Court's suggestion that

teacher-student sexual harassment gives rise to a cause of action

under Title IX was arguably dicta. We assume that Franklin

created a cause of action for teacher-student sexual harassment

under Title IX, but we are wary of extending this assumed holding

to student-student sexual harassment. In any event, the Court's

discussion of this issue does not foreclose our own consideration

of whether appellant has stated a claim under Title IX.

26

First, as we have noted, nothing in the language or history

of Title IX suggests that Title IX imposes liability for student-

student sexual harassment.15 Second, the imposition of this form

of liability would so materially affect schools' decisions

whether to accept Title IX funding that it would require an

express, unequivocal disclosure by Congress. Adopting

appellant's theory of liability, however, could give rise to a

form of “whipsaw” liability, under which public schools would

face lawsuits from both the alleged harasser and the alleged

victim of the harassment. Moreover, reasonable public school

officials could perceive the likely number of such suits to be

large. Because our endorsement of appellant's theory of

liability would alter materially the terms of the contract

between Congress and recipients of federal funding, appellant

fails to state a claim upon which relief can be granted.

The essence of appellant's complaint is this: once a public

school student complains to her teacher that a classmate has

sexually harassed her, the teacher and the school board become

15

The dissent devotes a great deal of attention to

whether Congress intended that Title IX create a cause of action

for student-student sexual harassment. See Post, at *1 - *7. We

seriously doubt whether Congress considered this problem at all

when it enacted Title IX, but, in any case, the dissent's heavy

reliance on its conclusory analysis of the language and history

of Title IX is largely irrelevant. The question is not whether

Congress intended to create a cause of action under Title IX for

student-student sexual harassment but, rather, whether Congress

gave school boards notice of this form of liability. In the

absence of any supporting legislative history, statutory

construction of ambiguous language cannot support a finding of

notice as required by the Spending Clause.

27

subject to the threat of liability in money damages under federal

law if they can prevent the classmate from harassing again and

fail to do so.16 See, e.g., Bosley, 904 F. Supp. at 1023 ("Once

a school district becomes aware of sexual harassment, it must

promptly take remedial action which is reasonably calculated to

end the harassment.") (emphasis added). In practical terms, this

means that school officials would have to isolate an alleged

harasser from other students through suspension or expulsion.

The complaint devotes little attention to what measures the

Board could have taken to avoid liability. The complaint admits

that Querry and Fort tried to stop G.F.'s harassment by

threatening him and by separating him from LaShonda within Fort's

classroom. Appellant clearly does not believe that these

measures sufficed. As evidence of "deliberate indifference," the

complaint also alleges that the Board failed to create a school

sexual harassment policy. It seems unlikely, however, that the

mere existence of such a policy would foreclose liability under

appellant's theory of the case.

Apparently, the appropriateness of the Board's remedial

measures depends on whether the harassment actually ends. The

complaint suggests that G.F. should have been "suspended, kept

16

Private schools that receive federal funding would also

be subject to suit under appellant’s theory of Title IX

liability. Private school teachers and administrators, however,

would not ordinarily be subject to suit under § 1983, as would

their public school counterparts, because they would not

ordinarily be acting under color of state law. See § 1983; see

generally supra, n.2. Accordingly, we discuss individual

liability only with respect to public school employees.

28

away from LaShonda, or disciplined in [some] way" after LaShonda

complained. The Department of Justice argues broadly that a

school board must take "effective action" in response to an

allegation of harassment. We take these arguments to mean the

same thing: a school board must immediately isolate an alleged

harasser from other students to avoid the threat of a lawsuit

under Title IX.

Physical separation of the alleged harasser from other

students is the only way school boards can ensure that they

cannot be held liable for future acts of harassment. If a school

official simply tells the alleged harasser, "Don't do it again,"

and the harasser does it again, then the board becomes

susceptible to the argument that it had the power to end the

harassment, but failed to do so out of "deliberate indifference."

If the official merely transfers the alleged harasser to another

classroom, the board faces the threat of suit for any acts of

harassment committed by him in the new classroom -- after all,

the school had notice of his dangerous propensities and did not

do all it could to prevent him from harassing his new classmates.

Segregating the sexes into two separate programs within the same

school would violate the spirit, if not the letter, of Title IX.

Therefore, in practical terms, to avoid the threat of Title IX

liability under appellant's theory of the case, a school must

immediately suspend or expel a student accused of sexual

29

harassment.17

Appellant's standard of liability therefore creates for

school boards and school officials a Hobson's choice: On the one

hand, if a student complains to a school official about sexual

harassment, the official must suspend or expel the alleged

harasser or the board will face potential liability to the

victim. Moreover, if a public school official with control over

the harasser finds out about his misconduct and fails to isolate

him, that official runs the risk of personal liability under 42

U.S.C. § 1983 for depriving the victim of her Title IX rights if

the harasser engages in further abuse.18 See Nicole M., 1997 WL

193919, at *13; Oona R.-S., 890 F. Supp. at 1462; see also

Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 723 - 24 (6th

Cir. 1996) (holding that the remedial scheme of Title IX does not

preclude a section 1983 claim based on the same conduct).

On the other hand, if the public school official, presiding

17

This is the approach, incidentally, that some school

boards have already adopted. See, e.g., Tamar Lewin, Kissing

Cases Highlight Schools' Fears of Liability for Sexual

Harassment, N.Y. Times, Oct. 6, 1996, at A22, A22 ("While the

recent suspensions of two little boys for kissing girls were

widely seen as excessive, they highlight the confusion that is

sweeping schools as educators grapple with a growing fear that

they may be sued for failing to intervene when one student

sexually harasses another.").

18

If we were to rule in favor of appellant, Fort, Maples,

Pippin, Querry, and Dumas would arguably be entitled to qualified

immunity against § 1983 liability for their actions in this case.

See Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1452 (9th Cir.

1995). Ruling in favor of appellant, however, would deprive

future, similarly situated defendants of qualified immunity,

because it would clearly establish a statutory right of which a

reasonable school employee would know.

30

over a disciplinary hearing, suspends or expels the alleged

harasser, the school board may face a lawsuit alleging that the

official acted out of bias -- out of fear of suit. The right to

a public education under state law is a property interest

protected by the Due Process Clause of the Fourteenth Amendment.

See Goss v. Lopez, 419 U.S. 565, 574, 95 S. Ct. 729, 736, 42 L.

Ed. 2d 725 (1975). Accordingly, students facing a deprivation of

this right must be afforded due process.19 Id. at 579, 95 S. Ct.

at 738. A fair hearing in a fair tribunal is a basic requirement

of due process. In re Murchison, 349 U.S. 133, 136, 75 S. Ct.

623, 625, 99 L. Ed. 942 (1955). The decisionmaker who presides

over the hearing must be impartial.20 See Withrow v. Larkin, 421

19

If Georgia provided a procedure for challenging the

impartiality of the school's decisionmaker, the alleged harasser

would have received all the process to which he was entitled, and

he would have no claim under the Due Process Clause. See

McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc).

Absent such a procedure, he could bring suit in federal court

under § 1983, alleging that the state failed to accord him the

process he was due. Whether the alleged harasser repairs to

state court or to federal court, however, the disruptive effect

on school officials, teachers, and students would be the same.

20

In his separate opinion, JUDGE CARNES insists that the

requirements of the procedural component of the Due Process

Clause are met when a school disciplinarian affords a student

faced with suspension an "informal" opportunity to explain his

side of the story. See Post, at *1 - *2. JUDGE CARNES'

reasoning is correct, as far as it goes, but he focuses on one

narrow subset of cases -- "any suspension of up to ten days."

Post at *1.

In Goss, the Supreme Court held that, "[a]t the very

minimum, . . . students facing suspension and the consequent

interference with a protected property interest must be given

some kind of notice and afforded some kind of hearing." Id. at

579, 95 S. Ct. at 738. The kind of notice and the formality of

the hearing will depend, of course, on the nature and severity of

the deprivation the student faces: for example, "due process

31

U.S. 35, 46, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975);

McKinney v. Pate, 20 F.3d 1550, 1561 (11th Cir. 1994) (en banc).

As we explain above, appellant's theory of the case could

impose personal liability on any public school official who

learns of an allegation of harassment and fails to exercise his

authority to prevent a recurrence of the harassment. Were we to

adopt appellant’s theory of the case, therefore, public school

requires, in connection with a suspension of 10 days or less,

that the student be given oral or written notice of the charges

against him and, if he denies them, an explanation of the

evidence the authorities have and an opportunity to present his

side of the story." Id. at 581, 95 S. Ct. at 740 (emphasis

added); see also, e.g., Board of Curators v. Horowitz, 435 U.S.

78, 86, 98 S. Ct. 948, 953, 55 L. Ed. 2d 124 (1978) (noting that

a college student's dismissal for academic reasons necessitates

fewer procedural protections than a dismissal for disciplinary

reasons).

At the end of its opinion in Goss, however, the Supreme

Court stated, "Longer suspensions or expulsions for the remainder

of the school term, or permanently, may require more formal

procedures. Nor do we put aside the possibility that in unusual

situations, although involving only a short suspension, something

more than rudimentary procedures will be required." Id. at 584,

95 S. Ct. at 741. The Supreme Court left open the possibility

that a more formal notice and hearing would be required for

disciplinary actions more serious than ten-day suspensions, and

so shall we.

Furthermore, regardless of the nature of the notice and the

quality of the hearing, an individual faced with the deprivation

of a property interest is entitled to an impartial decisionmaker

-- a requirement JUDGE CARNES seems to discount. See, e.g., Nash

v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987) ("An

impartial decision-maker is an essential guarantee of due

process."). JUDGE CARNES admits, for example, that a public

school principal would be impermissibly biased, for purposes of

the Due Process Clause, if the principal "took a bribe from [a]

complaining student's parents in return for suspending or

expelling [an] alleged wrongdoer." Post, at *2. JUDGE CARNES,

however, refuses to accept that a principal would be just as

impermissibly biased if the principal were forced to pay money to

a complaining student for not suspending or expelling an alleged

wrongdoer. We fail to grasp the distinction.

32

officials would have a financial incentive to punish alleged

student harassers. A financial incentive may render a

decisionmaker impermissibly biased.21 See Gibson v. Berryhill,

21

On page *4 of his separate opinion, JUDGE CARNES leads

us through a parade of horribles which, he imagines, we have

created by suggesting that appellant's theory of the case would

potentially give public school officials an impermissible

financial incentive to punish alleged student harassers. The

dire consequences he conjures, however, will never come to pass

precisely because we are not adopting appellant's theory of Title

IX liability. Only if we were to adopt her theory might public

school officials face potential liability under both Title IX and

the procedural component of the Due Process Clause. But we do

not adopt appellant's theory of liability.

With regard to non-school settings, JUDGE CARNES overstates

our opinion and then criticizes us for the breadth of our

holding. He chides us for suggesting that "[a]ll federal, state,

or local officials called upon to decide what to do in response

to one person's complaint about another would have a financial

incentive to avoid a lawsuit, which would disqualify them from

making a decision." Post, at *4. We suggest nothing of the

kind.

Nevertheless, on the merits of his critique, we suppose that

all officials in such situations could face lawsuits alleging

impermissible bias -- if none of those officials had any form of

immunity from suit, which, of course, they do have. Stated

differently, public decisionmakers have immunity from suit to

protect them from the sort of bias which might otherwise give

rise to violations of the Due Process Clause. Judges, for

example, have absolute immunity from suit because "the

independent and impartial exercise of judgment vital to the

judiciary might be impaired by exposure to potential damages

liability." Antoine v. Byers & Anderson, Inc., 508 U.S. 429,

435, 113 S. Ct. 2167, 2171, 124 L. Ed. 2d 391 (1993). Similar

concerns motivate qualified immunity. See generally Harlow v.

Fitzgerald, 457 U.S. 800, 814, 102 S. Ct. 2727, 2736, 73 L. Ed.

2d 396 (1982) (reasoning that, without qualified immunity, "there

is the danger that fear of being sued will 'dampen the ardor of

all but the most resolute, or the most irresponsible [public

officials], in the unflinching discharge of their duties'"

(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949),

cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950))

(alterations in original)). In fact, as we discuss supra, note

18, the individual defendants in this case would likely be

entitled to qualified immunity.

33

411 U.S. 564, 579, 93 S. Ct. 1689, 1698, 36 L. Ed. 2d 488 (1973).

Therefore, the disciplinary measures required to avoid liability

under Title IX could subject the school board to the threat of

suit by the disciplined harasser.22

In addition to the threat of this whipsaw liability, schools

would face the virtual certainty of extensive litigation costs.

These costs would include not only lawyers fees, but also the

burdens associated with the disruption of the educational

process. The litigation we describe would inevitably involve

In sum, we create no new procedural due process rights, as

JUDGE CARNES asserts. Our opinion does not even suggest that we

would have to create such rights if we were to uphold appellant's

theory of Title IX liability. Rather, our opinion states that

this form of liability is a logical extension of appellant's

theory of the case, and Congress gave no notice to public school

boards that they would be potentially undertaking this form of

liability when they accepted federal funding under Title IX.

22

All of the foregoing assumes, of course, that the

allegations of harassment are true. While we hesitate to assume

that any allegations of student-student sexual harassment are

false, we do not doubt that school students will be tempted into

mischief by the prospect of swift punishment against any

classmate whom they accuse of sexual harassment.

Moreover, public school officials would find such false

accusations difficult to combat. Under Title VII standards of

liability, which the appellant, the United States, and the

dissent seem anxious to adopt, an employer may be sued for

retaliating against an employee who complains about sexual

harassment. See generally 42 U.S.C. § 2000e-3(a) (1994) ("It

shall be an unlawful employment practice for an employer . . . to

discriminate against any individual . . . because he has made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.").

Thus, under the logical implications of appellants theory of

Title IX liability, a school board could face a lawsuit from the

complaining student if it disciplines her for bringing a

vexatious complaint against a classmate. As discussed in the

text, the threat of lawsuits under § 1983 against the public

school officials themselves would soon follow.

34

teachers, students, and administrators in time-consuming

discovery and trial preparation. Schools could reasonably expect

to receive from Congress explicit notice of these consequences.

They did not.23

23

Appellant and the Department of Justice draw our

attention to the regulatory activities of the Office of Civil

Rights of the United States Department of Justice ("OCR"). The

OCR issued interim guidelines concerning schoolhouse sexual

harassment on August 16, 1996. See Sexual Harassment Guidance:

Peer Sexual Harassment, 61 Fed. Reg. 42,728 (1996). These

guidelines issued after the alleged harassment of LaShonda.

Moreover, at the time of the alleged harassment, the code of

federal regulations did not discuss student-student sexual

harassment. See 34 C.F.R. § 106.31 (1992). Therefore, OCR's

regulations did not put the Board on official notice of its

potential liability for G.F.'s harassment of LaShonda.

Nevertheless, appellant and the Department of Justice urge

that we defer to the OCR's current interpretation of Title IX for

purposes of this case. The OCR issued final policy guidance on

student sexual harassment on March 13, 1997. See Sexual

Harassment Guidance: Harassment of Students by School Employees,

Other Students, or Third Parties, 62 Fed. Reg. 12,034 (1997). In

this publication, the OCR constructs a labyrinth of factors and

caveats which simply reinforces our conclusion that the Board was

not on notice that it could be held liable in the present

situation.

According to the March 13 guidance, schools are liable for

failing to eliminate

sexually harassing conduct (which can include unwelcome

sexual advances, requests for sexual favors, and other

verbal, nonverbal, or physical conduct of a sexual

nature) . . . by another student . . . that is

sufficiently severe, persistent, or pervasive to limit

a student's ability to participate in or benefit from

an education program or activity, or to create a

hostile or abusive educational environment.

Id. at 12,038.

Because the meaning of this language may not be obvious to

school officials, the March 13 guidance lists several factors

which should be taken into account when a student is sent to the

office for sexually harassing another student. Among other

factors and subfactors, the school official should consider the

35

C.

School boards could reasonably believe that this form of

whipsaw liability would arise in a substantial number of cases.

According to a 1993 survey of American public school students,

65% of students in grades eight to eleven were victims of

"welcomeness" of the conduct, the age of the harasser, the age of

the victim, the relationship between the parties, the degree to

which the conduct was sexual in nature, the duration of the

conduct, the frequency of the conduct involved, the degree to

which the conduct affected the victim's education, the

pervasiveness of the conduct at the school, the location of the

incident, the occurrence of any similar incidents at the school,

the occurrence of any incidents of gender-based but non-sexual

harassment, the size of the school, and the number of individuals

involved in the incident.

The school official should keep in mind that "in some

circumstances, nonsexual conduct may take on sexual connotations

and may rise to the level of sexual harassment." Id. at 12,039.

He should also remember that "a hostile environment may exist

even if there is no tangible injury to the student," and even if

the complaining student was not the target of the harassment.

Id. at 12,041. In addition, the official must recall that a

single act of student-student harassment can create a hostile

environment. See id. Finally, the school official must keep in

mind that, if he does not kick the alleged harasser out of

school, and the harasser misbehaves again, the official could be

personally liable if a jury concludes, after the fact, that he

could have done more to prevent the harasser from harming his

classmates.

The foregoing analysis assumes, of course, that the school

official actually knew of the complaint against the harasser and

summoned him to the front office. According to the OCR, however,

the official may be liable even if he did not know about the

harassment: the official may cause the school to violate Title

IX if he failed to exercise "due care" in discovering the

misconduct. See id. at 12,042. The foregoing does not address

the lawsuit that the harasser's parents will file when the school

official summarily suspends him. According to appellant and the

Department of Justice, the Board received clear notice of this

form of liability when it accepted federal funding under Title

IX. We think not.

36

student-student sexual harassment. See American Ass'n of Univ.

Women Educ. Found., Hostile Hallways: The AAUW Survey on Sexual

Harassment in American Schools 11 (1993) [hereinafter AAUW

Survey]. Extrapolating from Department of Education statistics,

roughly 7,784,000 public school students in grades eight through

eleven would consider themselves to be victims of student-student

sexual harassment.24 Furthermore, 59% of students (including 52%

of female students) in grades eight to eleven responded that they

had sexually harassed other students. See AAUW Survey, supra, at

11 - 12. Thus, if this survey is accurate, around 7,177,000

public school students in grades eight to eleven, male and

female, would admit to sexually harassing other students.

We do not adopt these statistics as our own definitive guide

to the extent of sexual harassment in America’s public schools.

We draw attention to these figures only to illustrate what school

boards would have to consider in deciding whether to accept

federal funding under Title IX. The AAUW Survey could suggest to

reasonable public school officials that a substantial number of

lawsuits will be brought under appellant’s theory of Title IX

24

To calculate the number of purported student victims of

harassment in the nation, we multiplied the percentage of victims

provided by the AAUW Survey by the total number of students

enrolled in public schools in grades eight to eleven during the

1992-1993 school year. We obtained the enrollment statistics

from the world-wide-web home page of the Department of Education.

See, e.g., U.S. Dep't of Educ., Enrollment in Public Elementary

and Secondary Schools, by Grade: Fall 1980 to Fall 1994 (last

modified Mar. 1996) <http://nces01.ed.gov/nces/pubs/D96/

D96T042.html> [hereinafter U.S. Education]. We used the same

process to calculate the total number of professed student

harassers in the nation.

37

liability. Therefore, imposition of this form of liability would

materially affect their decision whether to accept federal

educational funding.25

An enactment under the Spending Clause must read like a

prospectus. Just as a prospectus must unambiguously disclose all

material facts to a would-be purchaser, an enactment under the

Spending Clause must unambiguously disclose to would-be

recipients all facts material to their decision to accept Title

IX funding. The threat of whipsaw liability in a substantial

number of cases would materially affect a Title IX recipient's

decision to accept federal funding, yet Congress did not provide

unambiguous notice of this type of liability in the language or

history of that statute. We will not alter retrospectively the

25

In JUDGE CARNES' separate opinion, he characterizes our

use of statistics as an attempt "to establish that student-

student sexual harassment is such a widespread and extensive

problem that a different holding of this case would impose

massive liability upon school officials and boards." Post, at

*8. As we indicate in the text, this is not our objective at

all. We cite these statistics because school boards may consider

them to be a valid indicator of the amount of litigation that

they will face. If a lawyer for the Monroe County School Board

were trying to advise the Board about the potential costs and

benefits of accepting federal funding, would it not matter to

that lawyer whether accepting federal funds would give rise to a

few lawsuits or thousands of lawsuits?

JUDGE CARNES suggests that the AAUW Survey overstates the

actual number of lawsuits that could be brought under appellant's

theory of Title IX liability. We agree that the survey did not

use the same definition of student-student sexual harassment as

our case law dictates, but statistical purity would arguably

require a jury verdict agreeing with the allegations of each

student who claimed to have been harassed. In any event, there

are plenty of reasons for public school officials to overlook the

statistical flaws in the AAUW Survey when it is their own

pocketbooks -- not those of federal judges -- that are at stake.

38

terms of the agreement between Congress and recipients of Title

IX funding.26

IV.

We condemn the harm that has befallen LaShonda, a harm for

26

As noted above, the purpose of enactments under the

Spending Clause is "to further [Congress's] broad policy

objectives by conditioning receipt of federal moneys upon

compliance by the recipient with federal statutory and

administrative directives." Fullilove v. Klutznick, 448 U.S.

448, 474, 100 S. Ct. 2758, 2772, 65 L. Ed. 2d 902 (1980) (opinion

of Burger, C.J.). Congress uses the spending power "to induce

governments and private parties to cooperate voluntarily with

federal policy." Id. If no one chooses to receive federal funds

under a proposed legislative program, Congress's intent would be

frustrated and its policy objectives would remain unfulfilled.

See Rowinsky, 80 F.3d at 1013.

Prospective recipients will decline federal funding and

current recipients will withdraw from federal programs if the

cost of legislative conditions exceeds the amount of the

disbursement. Federal funding represents only 7% of all revenues

for public elementary and secondary schools in the United States.

During the 1992-1993 school year, for example, American schools

received $17,261,252,000 from the federal government out of a

total budget of $247,626,168,000. See U.S. Education, supra, at

<D96T157.html>.

School authorities must weigh the benefit of this relatively

small amount of funding against not only the threat of

substantial institutional and individual liability -- as

suggested by the AAUW Survey -- but also the opportunity costs of

devoting to litigation hours that might otherwise be spent

running their schools. Because harassment of the sort

experienced by LaShonda is rarely observed directly by school

officials, Title IX claims of the sort envisioned by appellant

would require the time-consuming testimony of numerous student

witnesses. Imposing the liability of the sort envisioned by

appellant could induce school boards to simply reject federal

funding -- in contravention of the will of Congress. See

Rowinsky, 80 F.3d at 1013.

39

which Georgia tort law may indeed provide redress. Appellant's

present complaint, however, fails to state a claim under Title IX

because Congress gave no clear notice to schools and teachers

that they, rather than society as a whole, would accept

responsibility for remedying student-student sexual harassment

when they chose to accept federal financial assistance under

Title IX. Accordingly, the judgment of the district court is

AFFIRMED.

Circuit Judges EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES

concur in the court’s opinion with the exception of Parts III.B

and III.C.

40