# S.S. v. Eastern Kentucky University > Court of Appeals for the Sixth Circuit · July 2, 2008 · 532 F.3d 445 URL: https://www.frixlaw.com/law-library/cases/9627067 ## Case - **Full name:** S.S., a Minor, by and Through His Parents and Next of Friends, Plaintiff-Appellant, v. EASTERN KENTUCKY UNIVERSITY; Ellen Rini, and Jacqueline Vance, Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 2, 2008 - **Citations:** 532 F.3d 445; 2008 U.S. App. LEXIS 13852; 2008 WL 2596660 - **Precedential status:** Published - **Opinion:** Concurrence by Moore - **Judges:** Moore, Gilman, Sutton - **Cited by:** 248 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9627067 ## How later opinions describe it (automated extraction) - holding that “[t]he record in this case does not give rise to an inference that Model was deliberately indifferent to S.S.’s situation or that it had an attitude of permissiveness that, amounted to discrimination” because the School “took the affirmative steps described above … - holding that a school district was not deliberately indifferent where the record demonstrated that the district, in addition to investigating and disciplining the students involved, responded to allegations of racial discrimination in many different ways, including “identifyin… - holding that plaintiffs substantive due process right was not violated where the school took affirmative steps to address incidents of harassment involving S.S.— specifically, meeting with students, communicating with parents, and disciplining the offending students - stating that the plaintiff had “the burden of showing that.. .[defendants] intentionally treated him differently — because he is disabled — than similarly situated students who were like him in all relevant respects” ## Opinion text KAREN NELSON MOORE, Circuit Judge, concurring. I write separately simply to identify yet a third possible standard for assessing a school’s liability for peer-harassment suits under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The majority opinion has identified two possible standards: (1) deliberate indifference and (2) bad faith or gross misjudgment. If the issue arises in a future case, however, we could also consider applying a negligence standard. I believe that a close reading of Supreme Court precedent, as well as statutory interpretation of the ADA, Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., demonstrates that negligence is still another standard that should be considered in the future for evaluating a school’s liability in peer-harassment suits under the ADA. A handful of district courts apply the “deliberate indifference” standard established in the Supreme Court decision recognizing peer-harassment claims under Title IX, Davis v. Monroe County Board of Education, 526 U.S. 629 , 119 S.Ct. 1661 , 148 L.Ed.2d 839 (1999), to peer-harassment suits under the ADA. In Davis, the Court offered three rationales for articulating a standard in the Title IX context that is highly deferential to schools. First and foremost, the Court explained that because Congress enacted Title IX pursuant to its authority under the Spending Clause, Congress was obligated to “speak with a clear voice” to ensure that states are aware of the conditions accompanying federal funding. Id. at 640, 119 S.Ct. 1661 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 , 101 S.Ct. 1531 , 67 L.Ed.2d 694 (1981)). Therefore, the Court followed the reasoning of a prior decision recognizing teacher-harassment suits under Title IX, which limited “the scope of liability in private damages actions .... [in accordance with] Penn-hurst’s requirement that funding recipients have notice of their potential liability.” Id. at 641, 119 S.Ct. 1661 (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-88 , 118 S.Ct. 1989 , 141 L.Ed.2d 277 (1998)). Second, the Court highlighted “textual differences between Title IX and Title VII,” observing that Court opinions invoking agency principles in the Title VII context did so on the ground that the “definition of ‘employer’ in Title VII includes agents of employer.” Id. at 643, 119 S.Ct. 1661 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 791-92 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998)). Third, the Court stated that “particularly when viewed in conjunction with the requirement that the recipient have notice of Title IX’s prohibitions to be liable for damages,” Title IX’s “plain language,” stating that no person should be “subject to discrimination” under any federally funded program, “confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser.” Id. at 644, 119 S.Ct. 1661 . Although the ADA shares with Title IX language prohibiting a covered entity from making a person “subject to discrimination,” the Davis opinion’s first and second rationales for the “deliberate indifference” standard are not applicable to the ADA. Unlike Title IX, Congress passed the ADA pursuant to its authority under the Commerce Clause and not the Spending Clause. 42 U.S.C. § 12101 (b)(4) (stating that the purpose of the chapter is “to *461 invoke the sweep of congressional authority ... to regulate commerce”). Moreover, the definition of “employer” in Title I of the ADA and the definition of “public entity” in Title II of the ADA extends the Act’s coverage to agents of employers and agencies and other instrumentalities of state and local governments. 42 U.S.C. §§ 12111 (5)(A), 12131(1)(B). These key differences between Title IX and the ADA suggest that the logic of Davis does not apply to the ADA, even while it may apply to Section 504 of the Rehabilitation Act (“Section 504”) passed pursuant to Congress’s Spending Clause powers. Our pri- or decisions analyzing ADA and Section 504 claims together did not address liability for peer-harassment, see e.g., Thompson v. Williamson County, 219 F.3d 555 , 557 n. 3 (6th Cir.2000), and do not foreclose our delineation of different standards for peer-harassment claims under these two statutes. In a future peer-harassment suit under the ADA, we may consider adopting the standard that we employ in coworker-harassment suits under Title VII. In Fenton v. HiSAN, Inc., 174 F.3d 827, 829 (6th Cir.1999), we discussed the Supreme Court’s use of agency principles in Burlington Industries v. Ellerth, 524 U.S. 742 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (1998), to define employer liability under Title VII for supervisor harassment. We reasoned that while Ellerth provided for employer liability in cases in which the agency relationship aided the supervisor in committing the harassment, such a holding could not be extended to cases of coworker harassment because “a coworker does not have power or authority emanating from the employer over the victim.” Fenton, 174 F.3d at 829 . Instead, we held that “[t]he victim of coworker sexual harassment must therefore prove negligence by the employer.” Id. We stated that to demonstrate a prima facie case of employer liability for coworker sexual harassment, a plaintiff must demonstrate that “the employer knew or should have known of the charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action.” Id. at 830 . Peer harassment in the school context can be analogized to coworker harassment in the employment context. Both involve horizontal relationships between the harasser and the victim and also lack an agency relationship between the harasser and the covered entity bearing the nondiscrimination mandate. Accordingly, if the issue occurs in a future case, we may consider analogizing to Fenton to apply that decision’s negligence standard to a school’s liability for peer harassment. The inquiry in a peer-harassment case would thus become whether the plaintiff had created a genuine issue of material fact regarding the defendant’s unreasonable failure to take appropriate, prompt corrective action. I concur in the majority opinion and judgment in this case because it is unnecessary here to decide which of these three possible standards should apply, given the parties’ choice of the deliberate-indifference standard. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627067. Public record. Not legal advice.