Davis v. Monroe Cty. Board of Ed.

United States Court of Appeals,

Eleventh Circuit.

No. 94-9121.

Aurelia DAVIS, as Next Friend of LaShonda D., Plaintiff-Appellant,

v.

MONROE COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees.

Aug. 21, 1997.

Appeal from the United States District Court for the Middle District of Georgia. (No. 94-CV-140-

4MAC(WDO), Wilbur D. Owens, Jr., Judge.

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

CARNES and BARKETT, Circuit Judges*, and KRAVITCH** and HENDERSON, Senior Circuit

Judges.

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

*

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).

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).

LaShonda on the basis of race in violation of 42 U.S.C. § 1981.2 Appellant sought injunctive 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 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.

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.

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.

2

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 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

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.

3

in similar (although unspecified) 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 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.

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.

4

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 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

5

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, --- F.Supp. ---- (D. N.H. June

13, 1997); Nicole M. v. Martinez Unified Sch. Dist., 964 F.Supp. 1369, 1337-78 (N.D.Cal.); 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

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.

6

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 Ind. 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 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.

7

See 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 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.

8

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.

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.

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).

9

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 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 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

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.

10

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 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 studentstudent sexual harassment, the legislative history does show that Title IX

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.

11

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

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

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.

12

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 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

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.

13

(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 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 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

14

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, "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. ----, 117 S.Ct.

2434, 138 L.Ed.2d 195 (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

15

sexually harassing another.13 Hence, appellant asserts that the school board here had sufficient

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.

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) (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

16

notice, for purposes of the Spending Clause, that it could be held liable. We disagree.14

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

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). 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

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.

17

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.

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 subject

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 3372-75. 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.

18

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

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

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.

19

"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 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., 964 F.Supp. 1369, 1382; 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 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

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.

20

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

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

3372-73. 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 3372.

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

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

21

See Withrow v. Larkin, 421 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 officials would have a financial incentive to punish alleged student

harassers. A financial incentive may render a decisionmaker impermissibly biased.21 See Gibson

Clause, if the principal "took a bribe from [a] complaining student's parents in return for

suspending or expelling [an] alleged wrongdoer." Post, at 3373. 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.

21

On page 3373-74 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 3374. 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

22

v. Berryhill, 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 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

defendants in this case would likely be entitled to qualified immunity.

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.

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.

23

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 "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

24

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 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 liability. Therefore, imposition of this

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.

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.

25

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 terms of the agreement between Congress and recipients of Title

IX funding.26

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 3375. 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.

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

26

IV.

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

EDMONDSON, COX, BIRCH, DUBINA, BLACK and CARNES, Circuit Judges, concur in the

court's opinion with the exception of Parts III.B and III.C.

BLACK, Circuit Judge, concurring:

I concur in the Court's judgment and, with the exception of Parts IIIB and IIIC, join in its

opinion. I write separately only to respond to the dissent's contention that the Court's disposition

contravenes the "plain meaning" of Title IX. It is axiomatic that the statutory language is the starting

point for interpreting the meaning of a statute. Ardestani v. INS, 502 U.S. 129, 135, 112 S.Ct. 515,

519, 116 L.Ed.2d 496 (1991); United States v. McLemore, 28 F.3d 1160, 1162 (11th Cir.1994). If

the statutory language is unambiguous, the courts must enforce the statute as written absent a

clearly-expressed legislative intent to the contrary. United States v. Turkette, 452 U.S. 576, 580, 101

S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,

447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); RJR Nabisco, Inc. v. United

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.

27

States, 955 F.2d 1457, 1460 (11th Cir.1992). On the other hand, where the statutory language is

ambiguous, then a court may look to legislative history in an effort to discern the intent of Congress.

See Royal Caribbean Cruises, Ltd. v. United States, 108 F.3d 290, 293 (11th Cir.1997); United

States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1498 (11th Cir.1991).

The present case requires us to decide whether Title IX prescribes liability for the failure of

a school board to prevent a student from discriminating against a classmate on the basis of sex. The

text of 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). As

the dissent recognizes, "[t]he absolute prohibition contained in the text is framed solely in terms of

who is protected." The statute simply does not specify what relationship, if any, the perpetrator of

an underlying act of sexual harassment must have to the federally-funded educational institution to

trigger Title IX liability.

The dissent nevertheless divines from congressional silence an unambiguous endorsement

of the proposition that "[t]he identity of the perpetrator is simply irrelevant." Under this conception

of Title IX, liability presumably would attach anytime the school board failed to prevent

anyone—student, teacher, parent, neighborhood resident—from discriminating on the basis of sex

to the extent that such action inhibited a student from realizing the full benefits of federally-funded

education. In my view, the text of Title IX permits at least equally plausible constructions that

would circumscribe liability more narrowly. Specifically, the text of Title IX may be interpreted

to impose liability only when the school board or one of its agents bears direct responsibility for

discriminating on the basis of sex, as would be the case had any of Lashonda Davis' teachers

participated in the sexual harassment she was forced to endure. The absence of any reliable textual

indication regarding which of these constructions Congress envisioned invites consideration of

legislative history and the congressional power from which the statute emanates in an effort to

discover congressional intent. The Court's approach thus represents an entirely appropriate effort

28

to effectuate congressional will in the absence of unambiguous textual guidance, not, as the dissent

appears to suggest, strident judicial refusal to enforce clearly expressed legislative intent.

CARNES, Circuit Judge, concurring:

I concur in the holding that Title IX does not create a cause of action against public school

boards or officials for failure to prevent or remedy student-student sexual harassment. In my view,

that holding is correct for essentially those reasons stated in Parts I, II, III A, and IV of Judge

Tjoflat's opinion, and I join those parts of it, which constitute the opinion of the Court. However,

for the reasons explained below, I do not join Parts III B and C of Judge Tjoflat's opinion, which

express only his own views.1

I.

The "Hobson's choice" or "whipsaw liability" discussion in Part III B of the opinion is based

upon a fundamentally erroneous premise. If school officials could be sued for failing to prevent or

remedy student-student sexual harassment, that part of the opinion says, the potential liability would

amount to a financial incentive to punish the accused harassers, which would or could render school

officials impermissibly biased and require recusal. Of course, a student does have a property interest

in a public education which is protected by the Due Process Clause of the Fourteenth Amendment.2

1

Parts I, II, III A, and IV of Judge Tjoflat's opinion constitute the opinion of the Court,

because those parts are joined by six of the ten judges participating in this decision. By contrast,

none of the other nine judges participating in this decision have joined Parts III B and C of that

opinion.

2

The nature and extent of the protection afforded the property interest in a public education,

the due process requirements attendant to its loss, depends upon the severity of the loss. In Goss

v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Supreme Court held that, with

any suspension of up to ten days, all the Due Process Clause requires is for the student to "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." 419 U.S. at

581, 95 S.Ct. at 740; accord Arnold v. Board of Educ., 880 F.2d 305, 318 (11th Cir.1989). The

Supreme Court said in Goss that "[i]n the great majority of cases the disciplinarian may

informally discuss the alleged misconduct with the student minutes after it has occurred," and

"[w]e hold only that, in being given an opportunity to explain his version of the facts at this

discussion, the student first be told what he is accused of doing and what the basis of the

accusation is." 419 U.S. at 582, 95 S.Ct. at 740. The Court has since explained that all Goss

requires before a suspension is an "informal give and take" in order to provide the student "the

opportunity to characterize his conduct and put it in what he deems the proper context." Board

29

And, due process does require that a decision depriving the student of that property interest be made

by someone who does not have a pecuniary interest in having the student suspended or expelled.

To take an extreme example, regardless of any other process afforded, due process would be violated

if a principal took a bribe from the complaining student's parents in return for suspending or

expelling the alleged wrongdoer. But it is an entirely different matter to suggest, as Part III B of the

opinion does, that a school official's potential liability to the complaining student if that official fails

to take legally required action amounts to a "financial incentive" which renders that official

"impermissibly biased" and requires recusal from deciding what action, if any, is required in the

circumstances. As authority for that novel proposition, the opinion cites only Gibson v. Berryhill,

411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973). The Gibson decision provides no

support for the proposition, because it does not hold, or even imply, that an official's potential

liability for failing to properly exercise decisionmaking authority constitutes a "financial incentive"

which renders the official "impermissibly biased."

Gibson involved a state optometry board composed exclusively of private practitioners who

were in competition with corporate employee optometrists. Those board members had a substantial

pecuniary interest in excluding from the market corporate employee optometrists, who accounted

for nearly half of all the practicing optometrists in the state. The Supreme Court affirmed the district

court's holding that the private practitioner's pecuniary interest in eliminating competition

disqualified them from deciding whether the practice of optometry by corporate employees as such

constituted unprofessional conduct justifying license revocation. See 411 U.S. at 578-79, 93 S.Ct.

at 1698. That holding does not support the proposition that any time an official can be sued for

failing to respond properly to a complaint that official is disqualified from making a decision about

how to respond to the complaint.

of Curators v. Horowitz, 435 U.S. 78, 86, 98 S.Ct. 948, 953, 55 L.Ed.2d 124 (1978) (quoting

Goss, 419 U.S. at 584, 95 S.Ct. at 741); accord, e.g., C.B. v. Driscoll, 82 F.3d 383, 386 (11th

Cir.1996) ("The dictates of Goss are clear and extremely limited."). These "rudimentary

precautions," to use the description from Goss itself, 419 U.S. at 581, 95 S.Ct. at 740, are a far

cry from a due process tribunal hearing attendant to some property interest deprivations.

30

If that suggested proposition were the law of this circuit—and thankfully it is not—no school

official could ever discipline a student for any alleged misconduct as a result of another student's

complaint without violating the due process rights of the disciplined student. The reason such an

imposition of discipline would violate due process is that such an official would always have a

financial incentive, under that view, to believe the complaint in order to avoid a lawsuit filed by the

complainant. The ramifications of such a rule would extend to discipline for any type of

misconduct, because there is no principled basis on which a distinction can be drawn between

discipline following a complaint about sexual harassment and that following a complaint about any

other type of misconduct.

Nor is there any principled basis by which such an automatic disqualification rule could be

confined to school settings. It would also apply outside the Title IX context; for example, in jail

and prison settings. If one prisoner complains to a jailer or warden about what some other prisoner

has done to him, under Judge Tjoflat's view that official will have a financial interest in avoiding a

lawsuit from the complaining prisoner (alleging deliberate indifference), and such an interest

disqualifies the official from making any disciplinary decision about the complaint. So, not only

would the disqualification rule be automatic, it also would be universal. No one would be able to

decide any disciplinary matters in schools, in prisons, or in any other setting within the purview of

the Due Process Clause. All 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. That cannot be the law, and it is not

the law.

Judge Tjoflat's response to having these flaws in his reasoning pointed out is contained in

footnote 21 of his opinion, which will reward close scrutiny. First, that footnote assures us that we

should not worry about the far-reaching ramifications of the suggestion that potential liability equals

disqualifying bias, because this Court is holding that school officials have no liability under Title

IX for student-student sexual harassment. Apparently forgotten is the assurance, in Part IV of the

31

opinion, that "Georgia tort law may indeed provide redress" for the very same conduct. If a school

official's potential liability for not acting properly is a disqualifying financial interest, it matters not

whether that potential liability is posed by Title IX or by state tort law. The opinion does not, and

logically cannot, suggest otherwise. Instead, it adopts a head-in-the-sand approach which ignores

everything but Title IX, as though that were the only potential source of liability for school officials

who are called upon to decide what to do about student-student sexual harassment complaints.

With its head comfortably in the sand, the opinion also ignores entirely the obvious

implications of its proposition for student-student disputes involving allegations of misbehavior

other than sexual harassment. Part of the quotidian business of teachers and principals is resolving

disputes in which one student alleges another has threatened, hit, stolen from, or otherwise

mistreated him or her. Some of those disputes pose potential liability for the teacher or principal

who fails to act. For example, a school official who fails to take appropriate action to protect a

student from a threatened thrashing at the hands of another student may have to answer in a state

court tort action. Under the reasoning contained in Part III B of the opinion, that potential liability

would prevent any school official from deciding what to do about such a complaint, because that

official's potential liability to the complaining student would amount to a disqualifying financial

bias. A careful reading of the opinion reveals that it fails to explain why that result would not

necessarily follow from its suggested reasoning.

As to settings outside the school context, footnote 21 of the opinion offers two responses to

this criticism. First, it simply denies—"We suggest nothing of the kind"—that its proposition about

potential liability equaling disqualifying bias would have any application outside the schoolhouse.

That ipse dixit assertion has as little reasoning behind it as the proposition itself. The opinion fails

to offer any reason why the automatic bias theory it suggests would not apply in non-school

contexts, because there is no reason. The right to an unbiased decision maker is a rudiment of due

process, which is as applicable outside schools as within them.

32

Apparently realizing that the ipse dixit approach will not shield the naked illogic of its

position from view, the opinion attempts to camouflage the problem with talk of immunity. "Don't

worry," we are told, officials in non-school settings have "immunity from suit" which removes any

potential liability for failing to decide for the complaining party, and any financial incentive to favor

that party disappears along with the potential liability. The thinnest stripe of the attempted

camouflage is the opinion's reference to judicial immunity. We are not talking about judges. We

are talking about the myriad of federal, state, and local non-judicial officials who are regularly called

upon to decide what to do in response to one person's complaint about another. Jailers, wardens, and

other corrections officials are but a few examples. These people are not judges. They do not enjoy

judicial immunity.

Even so, the opinion says, there is qualified immunity. There are three problems with the

assertion that the availability of qualified immunity distinguishes non-school officials from school

officials by removing any threat of lawsuit by a complaining party dissatisfied with an official's

resolution of a complaint outside the school setting. First, qualified immunity is not absolute.

Second, qualified immunity does not shield officials from liability grounded on state law. Third,

and most obviously, the doctrine of qualified immunity is the same for school officials as for

non-school officials. If that doctrine shields non-school officials from threat of lawsuit sufficiently

to remove any disqualifying financial incentive to decide for a complainant, it does exactly the same

for school officials. Thus, with its talk of qualified immunity, Part III B of the opinion has

succeeded in reaching around and biting itself in the back. If what the plurality opinion says about

the due process implications of qualified immunity is true, then the opinion has disproven the very

proposition it is seeking to defend.

II.

Part III C of Judge Tjoflat's opinion attempts to establish that student-student sexual

harassment is such a widespread and extensive problem that a different holding in this case would

impose massive liability upon school officials and boards. In its words, agreeing with appellant's

33

theory of liability would give rise to "thousands of lawsuits." Tjoflat Opinion at n.25. The factual

premise of that reasoning is based entirely upon one survey report. See American Ass'n of Univ.

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

Schools (1993) (hereinafter "AAUW Survey Report ").

The AAUW Survey Report was not the subject of an evidentiary hearing in the district court,

nor has it been examined in a hearing in any other court insofar as we know. Neither party to this

appeal even mentioned the survey in the briefs; it was discussed only in one amicus brief. In

general, we should be reluctant to incorporate into our reasoning the results of a survey that has not

been examined critically or tested in a trial or evidentiary hearing, the time-honored and proven

methods our system of justice uses to determine material facts.

Beyond the general problems with using surveys in judicial decision making, there are

specific reasons why employment of this particular survey for the purpose Judge Tjoflat uses it in

Part III C of his opinion is ill-advised. That purpose, of course, is to show student-student sexual

harassment is so rampant that if a cause of action existed for it the resulting flood of litigation would

inundate our public school systems, or at least school officials would have a basis for fearing that

result—the basis being the survey.

The first reason we ought to be especially cautious about such a use of this particular survey

is that its purported findings are, in the words of the sponsors of the survey: "startling," and for

some "the results will be surprising and shocking." Id. at 2. The reason for such descriptions is that

it is difficult to believe that 65 percent of all eighth through eleventh grade students have been

sexually harassed by other students, and that half of all female and male students in those grades are

self-professed sexual harassers. We ought to be reluctant to accept as fact, or assume that school

officials would accept as fact, such "surprising and shocking" statistics based upon a single survey

of only a tiny fraction of one percent of the total number of students in four grades.

Even a cursory look at the survey report gives more reason to be dubious about the opinion's

use of the report. The survey asked students how often "[d]uring your whole school life" has anyone

34

"when you did not want them to" done any of the following things, and it then provided a list of

behavior the survey defined as sexual harassment. See id. at 5. Some behavior on that list clearly

constitutes sexually harassing behavior of the most serious type. But included in the list is other

behavior that is less serious and far less likely to lead to complaints and litigation, which is what

Judge Tjoflat uses the survey to predict (or posits that school boards will use it to predict). For

example, included in the survey's definitional list of sexual harassment was any instance in which

another student: "Made sexual comments, jokes, gestures, or looks;" or "[s]pread sexual rumors

about you;" or "[s]aid you were gay or lesbian." Id. at 5. Remember that a single unwelcome

instance of such activity, during the student's entire school life, renders that student a victim of

sexual harassment for purposes of the survey.

A student who has ever been looked at by another student in an unwelcome way perceived

to be sexual is defined by the survey to be a sexual harassment victim. Any student ever called gay

or lesbian is also a sexual harassment victim in the survey's view. Any time unwelcome rumors are

spread about a student having any type of sexual activity (presumably including kissing) with

another student, those students are sexual harassment victims as the survey defines it. To take one

final example of how the total incidence of "sexual harassment" reported overstates legally

actionable incidents of sexual harassment, consider that the survey definition includes incidents in

which someone "[f]lashed or "mooned' you." Id. At 5. Suppose that a student at a school function

(which the survey defines to include school sporting events and field trips) "moons" all the students

in attendance, or all those from a rival school. A single episode of that misbehavior—which is not

nice and certainly should not occur, but has been known to happen—could make sexual harassment

victims, as the survey defines the term, out of scores or even hundreds of students. Yet, such an

incident is extremely unlikely to result in litigation against the school.

It is also worthy of note that the survey asked students whether the behavior it defined as

sexual harassment had happened to them "[d]uring your whole school life." Id. at 5. Therefore, the

35

65 percent figure reflects those who have experienced that behavior at any time during any school

year of their life. It does not purport to be annual data.

Finally, Part III C of the opinion fails to point out that the survey also asked the students if

any of them who had been sexually harassed, as that term was defined in the survey, had told a

teacher about the experience. Only 7 percent of the sixty-five percent had. See AAUW Survey

Report at 14. Whatever the reasons for not reporting such behavior to a teacher, the failure to do

so in all but the rarest instances has obvious implications for the existence of causes of action against

schools or the likelihood of actual litigation.

The opinion attempts to deflect criticism about misuse of the survey by suggesting that while

the opinion's author does not necessarily think that the survey is a valid indicator of how much

student-student sexual harassment occurs, school boards might think that the survey is and reject

federal funding as a result of it. With all due respect, there is no reason to believe that school boards

would be less likely than federal judges to see the flaws in such an interpretation of the survey.

School boards know more about what is going on in their schools than we do, and they can be

expected to critically examine any survey before using it as a basis for turning down federal funding

for their schools. Rather than hiding behind speculation about how school board officials might

interpret the survey, the opinion ought to face up to the flaws in its suggested use of the survey.

Upon its release, the sponsors of the survey stated that they were "confident that the results

of this survey will become a focal point on the agendas of policy makers, educators, and others

concerned with the education of America's children." Id. at 21. Their confidence about how the

survey would be used might be undermined by Part III C of Judge Tjoflat's opinion. More

importantly, we are not policymakers. We do not have agendas. We ought to leave this survey to

those who do.

III.

The parts of Judge Tjoflat's opinion that neither I nor any other member of the Court except

its author joins, Parts III B and C, are not necessary to the opinion's essential reasoning or to the

36

holding of this case. Neither the language of Title IX nor its legislative history indicates that

Congress intended to saddle school boards and officials with liability for student-student sexual

harassment, and school boards had no notice that such liability would result from accepting Title IX

funds. For those reasons, I do join the holding of the Court and Parts I, II, III A, and IV of Judge

Tjoflat's opinion.

BARKETT, Circuit Judge, dissenting, in which HATCHETT, Chief Judge, and KRAVITCH

and HENDERSON, Senior Circuit Judges, join:

In this case it is alleged that a fifth-grade student, Lashonda Davis, was sexually harassed

for over six months at school by another student, culminating in a sexual battery for which her

harasser pled guilty in state court. It is also alleged that school officials were completely aware of

the escalating gravity of the situation and took no meaningful action to deter it. The majority holds

that no matter how egregious—or even criminal—the harassing discriminatory conduct may be, and

no matter how cognizant of it supervisors may become—a teacher could observe it directly and

regularly—there would be no obligation to take any action to prevent it under the very law which

was passed to eliminate sexual discrimination in our public schools. To reach this conclusion the

majority ignores the plain meaning of Title IX as well as its spirit and purpose. I suggest that under

appropriate statutory analysis as well as Supreme Court precedent, Davis has stated a cause of

action.

The first principle in statutory analysis requires that a statute be accorded the plain meaning

of its text. It is well established that "[c]ourts must assume that Congress intended the ordinary

meaning of the words it used, and absent a clearly expressed legislative intent to the contrary, that

language is generally dispositive." Gonzalez v. McNary, 980 F.2d 1418, 1420 (11th Cir.1993)

(internal citation omitted). The Supreme Court has emphasized that "only the most extraordinary

showing of contrary intentions from [legislative history] would justify a limitation on the "plain

meaning' of the statutory language." Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482,

83 L.Ed.2d 472 (1984). The text of Title IX provides in pertinent part:

37

No 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(a). There is no ambiguity in this language. It is undisputed that the Monroe

County School System is a recipient of federal financial assistance. It is also well established that

hostile environment sexual harassment is a form of intentional discrimination which exposes one

sex to disadvantageous terms or conditions to which members of the other sex are not exposed. See

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986);

see also Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117

L.Ed.2d 208 (1992) (hostile environment for student created by teacher is a form of discrimination

cognizable under Title IX). The absolute prohibition contained in the text is framed solely in terms

of who is protected. The identity of the perpetrator is simply irrelevant under the language: "No

person ... shall ... be excluded from participation ..., be denied the benefits of, or be subjected to

discrimination...." Thus, under the statute's plain language, liability hinges upon whether the grant

recipient maintained an educational environment that excluded any person from participating, denied

them benefits, or subjected them to discrimination.

Should one need to interpret the statute, it must initially be noted that Title IX was designed

to protect individuals from sex discrimination by denying federal financial aid to those educational

institutions that bear responsibility for sexually discriminatory practices. Cannon v. University of

Chicago, 441 U.S. 677, 704 & n. 36, 99 S.Ct. 1946, 1961 & n. 36, 60 L.Ed.2d 560 (1979) (citing 117

Cong. Rec. 39252 (1971)). "It is a strong and comprehensive measure which ... is needed if we are

to provide women with solid legal protection as they seek education and training for later careers...."

Id. at 704 n. 36, 99 S.Ct. at 1961 n. 36 (quoting Sen. Birch Bayh, 118 Cong. Rec. 5806-07 (1972)).

Thus, in interpreting Title IX, "[t]here is no doubt that if we are to give [it] the scope that its origins

dictate, we must accord it a sweep as broad as its language." North Haven Bd. of Educ. v. Bell, 456

U.S. 512, 521, 102 S.Ct. 1912, 1918, 72 L.Ed.2d 299 (1982) (internal quotation marks omitted).

38

Moreover, the Office of Civil Rights of the Department of Education, the federal agency

responsible for enforcement of Title IX, interprets the statutory language to impose liability on

school officials for permitting an educational environment of severe, persistent, or pervasive peer

sexual harassment when they know or should know about it, and fail to take immediate and

appropriate corrective action to remedy it. See Sexual Harassment Guidance: Harassment of

Students by School Employees, Other Students, or Third Parties, 62 Fed.Reg. 12,034, at 12,039-41

(1997). The OCR's final policy guidance explains that:

a school's failure to respond to the existence of a hostile environment within its own

programs or activities permits an atmosphere of sexual discrimination to permeate the

educational program and results in discrimination prohibited by Title IX.... Thus, Title IX

does not make a school responsible for the actions of harassing students, but rather for its

own discrimination in failing to remedy it once the school has notice.

Id. at 12,039-40 (emphasis added).1

1

It is worth noting that the OCR's interpretation of Title IX as holding schools liable for

permitting peer sexual harassment is consistent with its interpretation of Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d (1964), as holding schools liable for allowing peer racial

harassment. This is significant because the Supreme Court has noted that "Title IX was

patterned after Title VI." Cannon, 441 U.S. at 694, 99 S.Ct. at 1956. As the majority points out,

the language of the two statutes is virtually identical, and the Supreme Court has held that they

should be interpreted in the same way. See Majority Op. at 3362-63 (citing Cannon, 441 U.S. at

696, 99 S.Ct. at 1957-58). The OCR issued An Investigative Guidance on Racial Incidents and

Harassment Against Students at Educational Institutions in 1994 providing, "[T]he existence of a

racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected

by a recipient also constitutes different treatment on the basis of race in violation of Title VI."

See 59 Fed.Reg. 11,448, at 11,448 (1994). Furthermore, the OCR has stated that the obligation

of school districts with notice to remedy racially hostile environments applies "regardless of the

identity of the person(s) committing the harassment—a teacher, student, the grounds crew, a

cafeteria worker, neighborhood teenagers, a visiting baseball team, a guest speaker, parents or

others." Id. at 11,450. As explained by the OCR:

Under this analysis, an alleged harasser need not be an agent or employee of the

recipient, because this theory of liability under Title VI is premised on a

recipient's general duty to provide a nondiscriminatory educational environment.

Id. at 11,449.

Additionally, it is interesting to note that shortly after the enactment of Title VI,

the former Fifth Circuit recognized that school officials must take steps within their

power to prevent racial harassment among students. In United States v. Jefferson County

Bd. of Educ., 380 F.2d 385 (5th Cir.1967) (en banc), which is binding precedent in this

circuit, see Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),

the court of appeals entered a model desegregation decree which complied with "the

39

Notwithstanding the administrative interpretation of the statute, as well as its plain meaning,

the majority concludes that Congress did not intend to create a cause of action under Title IX for

student-on-student sexual harassment based largely on an analysis of legislative history. The

majority emphasizes that "throughout this long legislative history, the drafters of Title IX never

discussed student-student sexual harassment...." See Majority Op. at 3360. Assuming this to be

true, the mere fact that student-on-student sexual harassment may not have been specifically

mentioned in the Congressional debates does not mean that it was not encompassed within

Congress's broad intent of preventing students from being "subjected to discrimination" in federally

funded educational programs. The majority suggests that it is clear that Congress was not concerned

with student-on-student sexual harassment because the legislative history focused primarily on the

issues of discrimination in "admission[s]," "available services or studies," and "employment within

an institution," none of which were pertinent to the claim raised in this case. See Majority Op. at

3358-59, 3360. However, under this narrow view, even the cause of action under Title IX for

teacher-on-student sexual harassment recognized by the Supreme Court in Franklin, 503 U.S. at 60,

112 S.Ct. at 1028-29, would not be supported by the majority's view of legislative history. In

Franklin the Court considered a high-school student's Title IX suit alleging that a teacher had

sexually harassed and assaulted her and that school officials, who had knowledge of the misconduct,

had failed to intervene. Id. at 63-64, 112 S.Ct. at 1031-32. Surely the majority would not suggest

that the cause of action that the Supreme Court recognized in Franklin does not exist simply because

it was not specifically mentioned in the legislative history. Moreover, the majority's interpretation

letter and spirit of the Civil Rights Act of 1964", Jefferson County, 380 F.2d at 390. The

decree provided in relevant part:

Within their authority school officials are responsible for the protection of

persons exercising rights under or otherwise affected by this decree. They shall,

without delay, take appropriate action with regard to any student or staff member

who interferes with the successful operation of the plan. Such interference shall

include harassment, intimidation, threats, hostile words or acts, and similar

behavior.

Id. at 392.

40

of the statute based on legislative history would suggest that by using the unqualified words

"discrimination under any education program" Congress only intended to cover the narrow areas of

admissions, services, and employment. This contravenes both common sense and the plain meaning

of the words of the statute.

Furthermore, the majority contends that Title IX may not be construed as authorizing a cause

of action for a school board's failure to remedy student-on-student sexual harassment because such

an interpretation would conflict with the notice of liability requirement of the Spending Clause,

which is the constitutional provision under which Title IX was ostensibly enacted.2 See Majority

Op. at 3362, 3364-65 (citing Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17, 101

S.Ct. 1531, 1539-40, 67 L.Ed.2d 694 (1981)). However, it is clear that the school board would have

sufficient notice of liability based on the plain meaning of the statute, which unequivocally imposes

liability on grant recipients for maintaining an educational environment in which students are

subjected to discrimination. Further, sufficient notice was provided to satisfy the Spending Clause

prerequisite for a damages action under Title IX as set forth in Franklin, 503 U.S. at 74-75, 112

S.Ct. at 1037-38. In Franklin the Court explained that the notice requirement for damages actions

under the Spending Clause in Title IX cases is satisfied where the alleged violation was intentional.

Id. The Court found that since sexual harassment constitutes intentional discrimination in violation

of Title IX, the Spending Clause does not prohibit a cause of action for teacher-on-student sexual

harassment under Title IX. Id. Similarly, in this case the alleged violation of Title IX was intentional

because the school board knowingly permitted a student to be subjected to a hostile environment of

sexual harassment. See, e.g., Doe v. Petaluma City Sch. Dist., 949 F.Supp. 1415, 1422, 1427

(N.D.Cal.1996) (holding that hostile environment sexual harassment constitutes "intentional

discrimination," and that schools are liable under Title IX when they know or should know about

2

In Franklin, the Supreme Court assumed, without deciding, that Title IX was enacted

pursuant to the Spending Clause. Franklin, 503 U.S. at 75 & n. 8, 112 S.Ct. at 1037 & n. 8. It is

also arguable that the provision was enacted pursuant to § 5 of the Fourteenth Amendment. For

purposes of this discussion, I will assume, like the majority, that the authorizing provision was

the Spending Clause.

41

student-on-student sexual harassment and fail to take prompt remedial action); Bruneau v. South

Kortright Central Sch. Dist., 935 F.Supp. 162, 172 (N.D.N.Y.1996) (recognizing that a school's

failure to take corrective action in response to hostile environment created by peers despite actual

notice of harassment subjects it to liability for intentional discrimination, and therefore to damages

under Title IX); Burrow v. Postville Community Sch. Dist., 929 F.Supp. 1193, 1205 (N.D.Iowa

1996) (holding that intentional discrimination may be inferred from "the totality of relevant

evidence, including evidence of the school's failure to prevent or stop the sexual harassment despite

actual knowledge of the sexually harassing behavior of students over whom the school exercised

some degree of control"); Oona R.-S. v. Santa Rosa City Schs., 890 F.Supp. 1452, 1464, 1469

(N.D.Cal.1995) (explaining that discriminatory intent can be found in "the toleration of harassing

behavior of male students, or the failure to take adequate steps to deter or punish peer harassment");

see also Canutillo Independent School Dist. v. Leija, 101 F.3d 393, 406 (5th Cir.1996), cert. denied,

--- U.S. ----, 117 S.Ct. 2434, 138 L.Ed.2d 195 (1997) (noting that "when the Supreme Court referred

to "intentional discrimination' in Franklin, it was referring to any form of discrimination other than

disparate impact discrimination.").

Finding that Title IX authorizes a cause of action for student-on-student sexual harassment,

we should then follow the lead of other courts, including the Supreme Court, in turning to Title VII

principles to delineate the scope of the school board's duty and identify the elements of a cause of

action under Title IX. In relevant part, Title VII requires an employer to take steps to assure that the

working environment of its employees is free from sexual harassment3 that is "sufficiently severe

or pervasive to alter the conditions of the victim's employment and create an abusive working

3

Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and

other unwelcome verbal or physical conduct of a sexual nature. 29 C.F.R. § 1604.11(a) (1991).

Such harassment constitutes actionable sex discrimination in the workplace either as "quid pro

quo" sexual harassment, which conditions employment benefits upon sexual favors, or as

"hostile environment" sexual harassment, which creates an intimidating, hostile or offensive

working environment that unreasonably interferes with an individual's work performance. See

Meritor 477 U.S. at 62, 65, 106 S.Ct. at 2403, 2404-05.

42

environment." Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (internal quotation marks and brackets

omitted).

It is appropriate to turn to Title VII because the Supreme Court has explicitly relied on Title

VII principles in explaining that sexual harassment constitutes intentional "discrimination" under

Title IX:

Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to

discriminate on the basis of sex, and "when a supervisor sexually harasses a subordinate

because of the subordinate's sex, that supervisor "discriminate[s]' on the basis of sex."

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 [106 S.Ct. 2399, 2402, 91 L.Ed.2d 49]

(1986). We believe the same rule should apply when a teacher sexually harasses and abuses

a student. Congress surely did not intend for federal moneys to be expended to support the

intentional actions it sought by statute to proscribe.

Franklin, 503 U.S. at 74-75, 112 S.Ct. at 1037. Significantly, the Court relied on Meritor, a Title

VII case, to resolve the issue.

A well established line of cases preceded the Supreme Court's decision to use Title VII

principles in resolving a Title IX case. Prior to Franklin, courts had held that such principles are

applicable in Title IX suits brought by employees of educational institutions. See, e.g., Lipsett v.

University of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988) (Title IX's legislative history "strongly

suggests that Congress meant for similar substantive standards to apply under Title IX as had been

developed under Title VII."); see also Preston v. Commonwealth of Virginia ex rel. New River

Community College, 31 F.3d 203, 207 (4th Cir.1994); Mabry v. State Bd. of Comm. Coll. & Occup.

Educ., 813 F.2d 311, 316 n. 6 (10th Cir.1987), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d

104 (1987). Courts had also relied on Title VII when evaluating Title IX sexual harassment claims

by students. See, e.g., Moire v. Temple Univ. Sch. of Medicine, 613 F.Supp. 1360, 1366 & n. 2

(E.D.Pa.1985), aff'd, 800 F.2d 1136 (3d Cir.1986) (hostile environment sexual harassment);

Alexander v. Yale Univ., 459 F.Supp. 1, 4 (D.Conn.1977), aff'd, 631 F.2d 178 (2d Cir.1980) (quid

pro quo sexual harassment).

Since the Supreme Court's Franklin case, at least five circuit courts have found that Title VII

standards are applicable to students' Title IX sexual harassment claims. See Oona, R.___S.___, by

43

Kate S. v. McCaffrey, --- F.3d ---- (9th Cir.Aug. 13, 1997); Doe v. Claiborne County, 103 F.3d 495,

514 (6th Cir.1996); Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir.1996); see also

Seamons v. Snow, 84 F.3d 1226, 1232-33 & n. 7 (10th Cir.1996) (holding that although Title IX does

protect against hostile environment sexual harassment in schools, plaintiff failed to state a valid

claim because he did not allege that the harassment in question was based on sex); Murray v. New

York University College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995) ("The [Franklin ] Court's

citation of Meritor ..., a Title VII case, in support of Franklin 's central holding indicates that, in a

Title IX suit for gender discrimination based on sexual harassment of a student, an educational

institution may be held liable under standards similar to those applied in cases under Title VII.").

But cf. Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1016 (5th Cir.1996), cert. denied, ---

U.S. ----, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996) (holding that student-on-student sexual harassment

cannot be the basis for a cause of action under Title IX unless the plaintiff demonstrates that the

school responded to sexual harassment claims differently based on sex.).

Additionally, the Ninth Circuit has recently relied on an analogy to Title VII in holding that

the law is clearly established that school officials have a duty under Title IX to take reasonable steps

to prevent student-on-student sexual harassment. See Oona, R.___S.___, pgs. *4-*6, --- F.3d at ---- -

----. See, e.g., Bruneau, 935 F.Supp. at 172 ("When an employer fails to act to remedy a hostile

environment created by co-workers the employer discriminates against an individual in violation of

Title VII. Similarly, [this] Court finds that in the Title IX context, when an educational institution

fails to take steps to remedy peer-on-peer sexual harassment, it should be held liable to the harassed

student for that discriminatory conduct."); Bosley v. Kearney R-1 Sch. Dist., 904 F.Supp. 1006,

1021 (W.D.Mo.1995) ("Following the [Franklin ] Court's logic, the same rule as when an employer

is held liable for a sexually hostile work environment under Title VII must apply when a school

district has knowledge of a sexually hostile school environment and takes no action."); see also

Nicole M. v. Martinez Unified School Dist., 964 F.Supp. 1369, 1377-78 (N.D.Cal.1997); Collier v.

William Penn Sch. Dist., 956 F.Supp. 1209, 1213-14 (E.D.Pa.1997); Franks v. Kentucky School for

44

the Deaf, 956 F.Supp. 741, 746 (E.D.Ky.1996); Petaluma, 949 F.Supp. at 1427; Wright v. Mason

City Community Sch. Dist., 940 F.Supp. 1412, 1419-20 (N.D.Iowa 1996); Burrow, 929 F.Supp. at

1205; Oona R.___S.___, 890 F.Supp. at 1467-69 & n. 13; 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). Thus, the applicable case law firmly supports applying Title

VII principles to delineate the scope of a school board's liability under Title IX for failure to remedy

student-on-student sexual harassment.

Notwithstanding this abundant support for applying Title VII principles, the majority

contends that Title VII principles may not be applied in this case because "the exposition of liability

under Title VII depends upon agency principles." See Majority Op. at 3363 n. 13. The majority

asserts that "[a]gency principles are useless in discussing liability for student-student harassment

under Title IX, because students are not agents of the school board."4 Id. This argument overlooks

the Supreme Court's caveat in Meritor that "common law principles [of agency] may not be

transferable in all their particulars to Title VII." Meritor, 477 U.S. at 72, 106 S.Ct. at 2408 (emphasis

added).5 Under Meritor 's flexible approach, courts have held that an employer may be held liable

4

The majority also argues that Title VII case law is inapplicable to Title IX because Title IX,

unlike Title VII, was enacted under the Spending Clause. However, the Supreme Court has

relied on Title VII in analyzing claims under Title VI, which also was enacted under the

spending power. In Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582, 103 S.Ct. 3221, 77

L.Ed.2d 866 (1983), for example, the Court found that Title VI's prohibition of discrimination

was "subject to the construction given the antidiscrimination proscription of Title VII in Griggs

v. Duke Power Co. ...." Guardians, 463 U.S. at 592, 103 S.Ct. at 3227. The Court also adopted

Title VII's "business necessity" defense to analyze disparate impact claims in a Title VI case

involving student placement. See Board of Educ. v. Harris, 444 U.S. 130, 151, 100 S.Ct. 363,

375, 62 L.Ed.2d 275 (1979). Likewise, this court has utilized Title VII to analyze a disparate

impact claim under Title VI, stating that "[t]he elements of a disparate impact claim may be

gleaned by reference to cases decided under Title VII." Georgia State Conf. of Branches of

NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir.1985). Thus, the fact that Title VII is not a

Spending Clause statute has not been a bar to importing its standards into Title VI, which formed

the template for Title IX, and therefore should not be a bar to importing its standards into Title

IX.

5

As Judge Tjoflat has explained, "Title VII, as interpreted in Meritor, requires employers to

take steps to ensure that sexual harassment does not permeate the workplace. To the extent that

the application of common law agency principles frustrates Title VII's goal of eliminating such

harassment—by effectively relieving the employer of the responsibility of pursuing that

45

under Title VII for failing to take action to remedy a hostile environment created by non-employees,

who are certainly not agents of the employer. See, e.g., Powell v. Las Vegas Hilton Corp., 841

F.Supp. 1024, 1028 (D.Nev.1992) (denying motion to dismiss blackjack dealer's claim that her

employer violated Title VII by failing to protect her from sexual harassment by gamblers at her

table, because "an employer could be liable for the sexual harassment of employees by

non-employees, including its customers"); Magnuson v. Peak Technical Services, Inc., 808 F.Supp.

500, 512-13 (E.D.Va.1992) (holding that employers of alleged victim can be held liable for failing

to take corrective action to remedy hostile environment created by non-employee); see also Henson

v. City of Dundee, 682 F.2d 897, 910 (11th Cir.1982) ("The environment in which an employee

works can be rendered offensive in an equal degree by the acts of supervisors, coworkers, or even

strangers to the workplace.") (emphasis added) (internal citations omitted).6 The employers were

held liable in these cases by virtue of their own failure to comply with the duty of eliminating

discrimination under Title VII—not under any theory of vicarious liability for the acts of a third

party.

Application of Title VII principles also recognizes that a student should have the same

protection in school that an employee has in the workplace.7 See Franklin, 503 U.S. at 74-75, 112

goal—those principles must yield." Faragher v. City of Boca Raton, 111 F.3d 1530, 1544, 1546

n. 2 (11th Cir.1997) (Tjoflat, J., concurring in part, dissenting in part).

6

Moreover, guidelines promulgated under Title VII recognize that an employer may be held

liable for failing to take corrective action to remedy a hostile environment created by a third

party. See 29 C.F.R. § 1604.11(e) ("An employer may also be responsible for the acts of

non-employees in the workplace ..., where the employer (or its agents or supervisory employees)

knows or should have known of the conduct and fails to take immediate and appropriate

corrective action.").

7

Indeed, where there are distinctions between the school environment and the workplace, they

"serve only to emphasize the need for zealous protection against sex discrimination in the

schools." Patricia H., 830 F.Supp. at 1292-93. The ability to control and influence behavior

exists to an even greater extent in the classroom than in the workplace, as students look to their

teachers for guidance as well as for protection. The damage caused by sexual harassment also is

arguably greater in the classroom than in the workplace, because the harassment has a greater

and longer lasting impact on its young victims, and institutionalizes sexual harassment as

accepted behavior. Moreover, "[a] nondiscriminatory environment is essential to maximum

intellectual growth and is therefore an integral part of the educational benefits that a student

46

S.Ct. at 1037-38. Just as a working woman should not be required to "run a gauntlet of sexual abuse

in return for the privilege of being allowed to work and make a living," Meritor, 477 U.S. at 67, 106

S.Ct. at 2405 (internal citation omitted), a female student should not be required to run a gauntlet

of sexual abuse in return for the privilege of being allowed to obtain an education. In the

employment context, women historically have not had the power to simply walk away from an

environment that is made to be demeaning, embarrassing, and humiliating for them because of their

gender. Similarly, it is virtually impossible for female students to leave their assigned schools to

escape an environment where they are harassed and intimidated on the basis of their gender. Just

as in the employment setting where employees are dependent on their employers to ensure

workplace equality, so too students are dependent on teachers and school officials to control the

educational environment. Additionally, sexual harassment—regardless of its source—subordinates

girls in the classroom just as much as in the workforce. Although a hostile environment can be

created by someone who supervises or otherwise has power over the victim, a hostile environment

can also be created by co-workers or fellow students who have no direct power relationship

whatsoever with the victim.8 And like Title VII, Title IX was enacted to remedy that discrimination

and ensure sexual equality in public education.

Having determined that Title VII principles should guide our analysis of the scope of the

school board's liability under Title IX, I conclude that Davis's allegations sufficiently plead a cause

receives. A sexually abusive environment inhibits, if not prevents, the harassed student from

developing her full intellectual potential and receiving the most from the academic program." Id.

at 1293 (citation omitted).

8

Numerous circuit courts, including this one, have held that an employer's failure to take

prompt remedial action after notice of severe and pervasive sexual harassment by a co-worker is

actionable. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982); see also

DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d 591, 593 (5th Cir.1995);

Nichols v. Frank, 42 F.3d 503, 508 (9th Cir.1994); Carr v. Allison Gas Turbine Div. Gen.

Motors Corp., 32 F.3d 1007, 1009 (7th Cir.1994); Karibian v. Columbia University, 14 F.3d

773, 779 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994);

Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178, 182 (6th Cir.), cert. denied, 506

U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992); Baker v. Weyerhaeuser Co., 903 F.2d 1342,

1345-46 (10th Cir.1990); Hall v. Gus Construction Co., 842 F.2d 1010, 1015-16 (8th Cir.1988).

47

of action. The elements a plaintiff must prove to succeed in this type of sexual harassment case are:

(1) that she is a member of a protected group; (2) that she was subject to unwelcome sexual

harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently

severe or pervasive so as to alter the conditions of her education and create an abusive educational

environment; and (5) that some basis for institutional liability has been established. See Meritor,

477 U.S. at 66-73, 106 S.Ct. at 2405-09; see also Harris v. Forklift Sys. Inc., 510 U.S. 17, 20-24,

114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993); Lipsett, 864 F.2d at 898-902; Henson, 682 F.2d

at 903-05.

Assumed as true, the facts alleged in the complaint, together with all reasonable inferences

therefrom, satisfy these elements. There is no question that the allegations satisfy the first three

requirements. First, as a female, LaShonda is a member of a protected group. Second, she was

subject to unwelcome sexual harassment in the form of "verbal and physical conduct of a sexual

nature." 29 C.F.R. § 1604.11(a). Third, the harassment LaShonda faced clearly was on the basis

of her sex.

As to the fourth requirement, I recognize that a hostile environment in an educational setting

is not created by simple childish behavior or by an offensive utterance, comment, or vulgarity.

Rather, Title IX is violated "[w]hen the [educational environment] is permeated with "discriminatory

intimidation, ridicule, and insult' that is "sufficiently severe or pervasive to alter the conditions of

the victim's [environment] and create an abusive environment,' " Harris, 114 S.Ct. at 370, 510 U.S.

at 21 (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. at 2405-06) (internal citations omitted). In

determining whether a plaintiff has established that an environment is hostile or abusive, a court

must be particularly concerned with (1) the frequency of the abusive conduct; (2) the conduct's

severity; (3) whether it is physically threatening or humiliating rather than merely offensive; and

(4) whether it unreasonably interferes with the plaintiff's performance. Harris, 444 U.S. at 142-44,

100 S.Ct. at 371. The Court has explained that these factors must be viewed both objectively and

subjectively. If the conduct is not so severe or pervasive that a reasonable person would find it

48

hostile or abusive, it is beyond Title IX's purview. Similarly, if the plaintiff does not subjectively

perceive the environment to be abusive, then the conduct has not actually altered the conditions of

her learning environment, and there is no Title IX violation. Id., 444 U.S. at 141-42, 100 S.Ct. at

370.

In this case, the five months of alleged harassment was sufficiently severe and pervasive to

have altered the conditions of LaShonda's learning environment from both an objective and a

subjective standpoint: (1) G.F. engaged in abusive conduct toward LaShonda on at least eight

occasions; (2) the conduct was sufficiently severe to result in criminal charges against G.F. to which

he pled guilty in state court; (3) the conduct, such as the groping and requests for sex, was

physically threatening and humiliating rather than merely offensive; and (4) the conduct

unreasonably interfered with LaShonda's academic performance, resulting in the substantial

deterioration of her grades and emotional health. The facts alleged go far beyond simple horseplay,

childish vulgarities, or adolescent flirting.

Finally, I believe that the fifth and final element—whether any basis for the Board's liability

has been shown, has likewise been sufficiently alleged. Under Title VII, an employer may be held

liable for a hostile environment of sexual harassment created by a co-worker if "the employer knew

or should have known of the harassment in question and failed to take prompt remedial action."

Faragher, 111 F.3d at 1538; Henson, 682 F.2d at 905; see also Meritor, 477 U.S. at 72-73, 106

S.Ct. at 2408-09. By analogy, in this instance the school board may be held liable if it knew or

should have known of the harassment and failed to take timely remedial action. In Title VII cases,

an employee can demonstrate that the employer knew of the harassment "by showing that she

complained to higher management of the harassment or by showing the pervasiveness of the

harassment, which gives rise to the inference of knowledge or constructive knowledge." Henson,

682 F.2d at 905. (citation omitted). In this case, Davis has alleged that she told the principal—a

higher level manager—of the harassment on several occasions. She also alleged that at least three

separate teachers, in addition to the principal, had actual and repetitive knowledge from LaShonda,

49

her mother and other students. Finally, Davis alleged that despite this knowledge, the school

officials failed to take prompt remedial action to end the harassment.9 These allegations regarding

institutional liability, as well as the other allegations, are sufficient to establish a prima facie claim

under Title IX for sexual discrimination due to the Board's failure to take action to remedy a

sexually hostile environment.

For all the foregoing reasons, I would reverse the district court's dismissal of Davis's Title

IX claim against the Board.

9

The complaint also alleged that during the time of the harassment, the Board had no policy

prohibiting the sexual harassment of students in its schools, and had not provided any policies or

training to its employees on how to respond to student-on-student sexual harassment.

50