Amicus Curiae Brief — Gebser v. Lago Vista Independent School Dist.

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* 16 1998

No. 96-1866

In the Supreme Court of the United States

OCTOBER TERM, 1997

ALIDA STAR GEBSER AND ALIDAJEAN MCCULLOUGH,

PETITIONERS

LAGO VISTA INDEPENDENT SCHOOL DISTRICT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General

LAWRENCE G. WALLACE

Deputy Solicitor General

ISABELLE KATZ PINZLER

Deputy Assistant Attorney

General

BETH S. BRINKMANN

Assistant to the Solicitor

General

DENNIS J. DIMSEY

REBECCA K. TROTH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

———

QUESTION PRESENTED

Whether the court of appeals adopted the correct legal

standard to determine when a school district may be liable

in damages, under Title IX of the Education Amendments

of 1972, 20 U.S.C. 1681 et seg, to a student who was sexu-

ally harassed by one of the district’s teachers.

TABLE OF CONTENTS

r ilicuutsiicseteetennendsetennsensienimentenpessesecscsasocersoces

The court of appeals applied the wrong legal

standard to determine whether respondent

school district could be liable for damages, under

Title IX, to a student who was sexually harassed

by one of respondent’s teachers

A. There is a basis for a school district’s liablity for

damages under Title IX for teacher-student

sexual harassment when the teacher is aided in

the harassmen by his agency relationship with

the school district or uses his apparent author-

ity, or when the district knew or should have

known about the harassment and failed to take

appropriate corrective action

B. The court of appeals applied the wrong legal

standard in limiting Title IX recipient liability

to actual knowledge . . . .

C. The record evidence raises issues of material

fact that preclude summary judgment for

TABLE OF AUTHORITIES

Cases:

Ambach v. Norwick, 441 U.S. 68 (1979) ...............

American Soc’y of Mechanical Engineers, Inc. v.

Hydrolevel Corp., 456 U.S. 556 (1982) ...

(III)

Cases—Continued: Page

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

(a 23

Bennett v. Kentucky Dep't of Educ., 470 U.S. 656

A W 2⁵

Bethel Sch. Dist. No. 403 v. Fraser, 478 US.

GTB (IBBGD ocnceccccscccccccccocossssasecsseserensnseqsssnssossoossoneses 21

Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) ....... 24

Cannon v. University of Chicago, 441 U.S. 677

KKK 19, 23

Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d

393 (5th Cir. 1996), cert. denied, 117 S. Ct. 2434

| a en ee eee 8, 22

Davis v. Monroe County Bd. of Educ., 120 F.3d

1390 (11th Cir.), petition for cert. pending,

Ne. DTBAB eee 16

Doe v. Claiborne County, 103 F.3d 495 (6th Cir.

9899 —— ͤ— —— [ 12

Eddings v. Oklahoma, 455 U.S. 104 (1982) 17

Faragher v. City of Boca Raton, cert. granted,

No. 97-282 (Nov. 14, 1997) . 12

Franklin v. Gwinnett County Pub. Schs., 503

II 9, 10, 11, 18, 23, 24, 26

General Electric Co. v. Joiner, 118 S. Ct. 512

7k . 2

Ginsberg v. New York, 390 U.S. 629 (1968) ........... 20

Glanz v. Vernick, 756 F. Supp. 632 (D. Mass.

| | ae 25

Gleason v. Seaboard Air Line Ry., 278 US

9880.99 ——————ů 5 24

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S

1% 17

Cases Continued: Page

Irving Indep. Sch. Dist. v. Tatro, 468 U.S.

T 25

Kin man v. Omaha Pub. Sch. Dist., 94 F.3d 463

7c 12

Kracunas v. lona College, 119 F.3d 80 (2d Cir.

.. ———— — 12

Lipsett v. University of Puerto Rico, 864 F. 2d 881

I ] 12

Mabry v. State Bd. of Community Colleges and

Occupational Educ., 813 F.2d 311 (10th Cir.),

cert. denied, 484 U.S. 849 (1987) 12-13

Meritor Sav. Bank, FSB v. Vinson, 477 US.

1... 10, 12, 14, 15, 18, 25, 26

Mississippi Univ. for Women v. Hogan, 458 U.S.

29208 ——————— 23

Murray v. New York Univ. College of Dentistry,

57 F. ad 243 (2d Cir. 1995) 12

New Jersey v. T. L. O., 469 U.S. 325 (1985) ......... 17, 19, 21

Patton v. Dumpson, 498 F. Supp. 933 (S.D.N.Y.

—6—9——— — 2⁵

Pennhurst State Sch. and Hosp. v. Halderman,

404100 ä — 23, 25

Rosa H. v. San Elizario Indep. Sch. Dist., 106

F.3d 648 (Sth Cir. 1997) 8, 22-23, 26

Schall v. Martin, 467 U.S. 253 (1984) 20

School Bd. of Nassau County v. Arline, 480 U.S.

11 — eee 2⁵

Sharrow v. Bailey, 910 F. Supp. 187 (M.D. Pa.

en 25

Smith v. Metropolitan Sch. Dist. Perry Township,

128 F.3d 1014 (7th Cir. 187% —— 13

United States v. Fordice, 505 U.S. 717 (1992) ....... 23

Cases—Continued: Page

United Steelworkers of America v. Weber, 443

ü 2 23

Vernonia Sch. Dist. v. Acton, 515 U.S. 646

0 wÄ—U—U— ———— 20

Welch v. Texas Dep't of Highways & Pub. Transp.,

II ] 23

Younger v. Bayer Corp., 123 F.3d 672 (7th Cir.

—— . — — 16

U.S. Const. Art. I. § 8, Cl. 1 (Spending Clause) ....... 23

US. Const. Amend. XIV, 15 ... 23

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000

8 ] 2 12

Civil Rights Attorney’s Fees Awards Act of 1976,

II .. 23

Education Amendments of 1972, Tit. IX. 20 U.S.C.

1681 et seg.

12 O 7, 11, 19

ee 1, 13

11? 19

Elementary and Secondary Act of 1965, 20 U.S.C.

I.. . 2⁵

Rehabilitation Act of 1973, § 504, 29 U.S.C. 794 ....... 23, 25

2 ee — 7

34 C. F. R.:

0 —6ĩ 17

Baste GERD —ññ——ñꝛñ———ĩi —H:43 17

Miscellaneous:

Department of Educ. Policy Memorandum from

Antonio J. Califa to Regional Civil Rights Directors

n 13, 14

40 Fed. Reg. 24,139 (1975). 17

VII

Miscellaneous Continued: Page

Department of Edue., Office of Civil Rights, Sexual

Harassment Policy Guidance (1997), 62 Fed. Reg.

. . 14

r 16

11 14. 15, 16

r 16, 17, 18

J ESE G0 16

Jö BV . . 29

p. 12,044 — . — 17

((( 17

Fc 14

1 14. 15, 16. 18

r 15, 16, 28, 29

W. Page Keeton et al., Prosser and Keeton on

the Law of Torts (W. Page Keeton ed., 5th ed.

GED ＋94RPFVj̃̃ 2 2323 2¹

Mahoney, School Personnel & Mandated Reporting

of Child Maltreatment, 24 J. Law & Educ. 227

——Tͤͤ » 20, 21

Policy Guidance on Current Issues of Sexual Harass-

ment, EEOC Compl. Man. (CCH) 1 3114 (Mar. 19,

— —— —ꝛ 14, 18

Restatement (Second) of Agency (1958) .............. 8, 12, 14,

15, 16, 22

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 96-1866

ALIDA STAR GEBSER AND ALIDAJEAN MCCULLOUGH,

PETITIONERS

LAGO VISTA INDEPENDENT SCHOOL DISTRICT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States Department of Education adminis-

ters federal financial assistance to education programs

and activities and is authorized by Congress to effectuate

Title IX in those programs and activities. 20 U.S.C. 1682.

Pursuant to that authority, the Department, through its

Office of Civil Rights (OCR), has prorwuigated regula-

tions, a policy memorandum, and a policy guidance based

on its longstanding interpretation of school district

liability under Title IX. The Department of Justice

enforces Title IX in federal court in cases referred to it by

OCR.

STATEMENT

1. a. In the spring of 1991, petitioner Alida Star Gebser

was a thirteen-year-old eighth-grade student at the middle

(1)

school in respondent school district. Pet. App. 12a. She

was in the program for gifted and talented children. Be-

cause Gebser “needed a more challenging academic pro-

gram,” her teacher arranged for Gebser to join the high

school great books discussion group led by her husband,

Frank Waldrop, a teacher at the district high school.

Ibid.; J. A. 5la. During the book group discussions,

Waldrop often made suggestive comments and jokes. Pltf.

Mot. for Partial Summ. Jdgmt., Exh. 1 (Gebser Dep.), at

26-27.

In the fall of 1991, Gebser entered the district high

school and was-assigned to a small social studies class

taught by Waldrop. Gebser Dep. 25, 28-29. Waldrop con-

tinued to make the same type of comments. For example,

he suggested that one of the students had engaged in sex

with her boyfriend in a hotel room and, when the girl took

offense, expressed his belief that of all the girls he knew,

she was the girl most likely to be a virgin. Id. at 29-30.

Waldrop directed his sexual comments toward female

students, sometimes in front of other students and

teachers. Id. at 38-39. Waldrop also made inappropriately

suggestive comments to Gebser individually and, in doing

so, implied that he considered her “very nearly a peer and

that he expected [her] to act that way.” Id. at 42-44.

In the spring semester of 1992, Gebser was also

assigned to Waldrop’s class; for approximately 75% of the

time, she was the only student in the classroom with

Waldrop, because the other two students spent most of the

class time working in the computer lab and library.

Gebser Dep. 44-45. Although respondent school district is

small, it was unusual to have just one student in a high

1 Because the case comes to the Court from a grant of summary

judgment in respondent's favor, we state the facts in the light most

favorable to petitioners, as disputed facts should be resolved against re-

spondent. General Electric Co. v. Joiner, 118 S. Ct. 512 (1997).

school class alone with one teacher most of the time. Id. at

46. Waldrop continued to make suggestive comments to

Gebser, id. at 45-46, and eventually he initiated sexual

contact when, “[k]nowing she would be alone, he visited

[Gebser at home] under the pretext of returning a book”

she needed for a research project for school. Pet. App. 12a.

Waldrop embraced Gebser, kissed her, fondled her breasts,

unzipped her pants and fondled her genitalia, and told

her that he loved her. J.A. 54a-55a. Gebser asked Waldrop

repeatedly about his young son, whom Waldrop had left out

in the car, and Waldrop eventually left. J. A. 55a.

The sexual assault by her teacher terrified Gebser. J.A.

56a. Gebser testified that she “had believed” in Waldrop,

who “was basically [her] mentor,” that he “was the main

teacher at the school with whom [she] had discussions,”

that he was the person in the school system whom she

“most trusted,” and that she “didn’t know what to do”

because he was the person against whom she had a

complaint. J.A. 57a, 63a. The only exposure she had had

“to anything like that to even have the concept that that

could happen was * * * references on TV and stuff about

female students marrying their professors.” J.A.57a. She

“had no idea that that stuff actually happened.” bid.

Gebser wanted someone to help her figure out what she

should do, and she told one male friend who was also a

high school student. J.A. 58a. He advised against a

relationship, but did not suggest that Gebser report the

incident. Gebser Dep. 56-57. Gebser testified that if, at

the beginning, she had known what she was supposed to do

when a teacher started making sexual advances to her, she

“would have reported it.” J. A. 65a.

Waldrop escalated his advances toward Gebser and, later

that semester, engaged in sexual intercourse with her.

J.A. 59a-60a. He had sex with her on other occasions

during the rest of her freshman year. J.A. 60a. That sum-

mer, Gebser was the only student in Waldrop’s advanced

placement class, and he often used the weekly class time

to engage in sexual intercourse with her. bid. Waldrop

would pick up Gebser from her home and make com-

ments about studying psychology, which both Gebser and

Waldrop understood really meant having sexual inter-

course. bid.

In the fall of 1992, Gebser returned for her sophomore

year and again had Waldrop as a teacher. J. A. 60a-Gla.

Waldrop would call Gebser aside as she was leaving the

classroom or walking in the hall and ask if she could

“study psychology that day,” and she “basically just went

along with what he said.“ J.A.6la. Gebser testified that it

seemed to her that the sexual relationship now “was a

necessary component” of the intellectual relationship and

that, if she were “to blow the whistle on [the sexual

relationship],” then she wouldn't be able to have Waldrop

as a teacher anymore, which was her main interest in

the relationship. J.A. 62a. Gebser testified that she was

ashamed of the sexual relationship and felt that, by trying

to act like an adult in response to Waldrop’s comments, she

had led him on and had to go along with it. Jbid. Waldrop

told Gebser that if the sexual relationship were discover-

ed, he could lose his job and they would both be in trouble.

Gebser Dep. 75. Gebser decided that she would graduate a

year early “because it seemed to [her] that that would be a

way that without being discovered, * * * [she] could get

out of it without having his disapproval.” J.A. 64a.

In October 1992, other high school girls complained to

the school about Waldrop. One of the girls refused to stay

after school when she discovered that Waldrop was on

duty. The girl did not want to risk being the only student

in the classroom with Waldrop. J.A. 89a. She explained to

her parents that the way he looked her up and down made

her uncomfortable and that he had made suggestive com-

ments to female students. When the girl’s mother asked

her other daughter and her daughter’s friend, who lived

with the family, about Waldrop, they also said that he made

them uncomfortable. J. A. 85a-9la. The friend explained

that she had been in a class (with Gebser) taught by

Waldrop and that he had spent most of the class time in

conversation, much of which had sexual connotations, and

told off-color jokes that made her uncomfortable. J.A. 90a.

The other girls’ parents called the high school principal

and complained about Waldrop’s conduct. J.A. 9la. The

principal arranged a meeting in his office with the parents

and Waldrop during which the parents relayed the girls’

complaints. J.A. 79a. According to the principal, Waldrop

never denied making the comments, but indicated that he

did not think anything he had said was offensive; he then

apologized and said it would not happen again. Ibid.“ The

principal told Waldrop that he should be careful to avoid

making remarks that could be construed as offensive, but

he did not say the remarks were improper. J. A. Soa-Sla.

The principal, who was new to the district that semester,

did not note the complaint or meeting in Waldrop’s per-

sonnel file and did not know whether the preceding

principal had had any similar meetings with Waldrop. J.A.

8la-82a; Pitf. Mot. for Partial Summ. Jdgmt., Exh. 3

(Riggs Dep.), at 33, 35, 41. The principal told the school

guidance counselor about the conference at that time, but

he did not inform the Title IX coordinator (the district

superintendent) about the complaint until after Waldrop's

sexual abuse of Gebser came to light. Riggs Dep. 32, 36-37,

39-40.

2 The complaining parei.s testified that Waldrop flatly denied the

accusations, thought the girls were lying, and “didn’t know why they

would lie about that.” J. A. 93a.

One of the girls had complained to another teacher about Mr.

Waldrop’s telling dirty jokes and making remarks with sexual con-

notations, but that teacher did not believe her and “every time she told

him] about something, he told her that she must be misunderstanding

A few months later, in January 1993, a police officer dis-

covered Waldrop and Gebser engaged in sexual intercourse

and arrested Waldrop. Pet. App. 12a. The school district

terminated Waldrop’s employment, and the State ulti-

mately withdrew his teaching license. Riggs Dep. 43-44."

b. Throughout the period in which Waldrop was sexu-

ally abusing Gebser, the school district’s Title IX coor-

dinator was the school district superintendent. J.A. 69a.

According to the superintendent, a student who felt she

had been victimized by sexual harassment should have

complained directly to the school principal. J. A. 7la-72a.

The superintendent was not aware, however, of any com-

munication that informed students that they should go

to the principal with such a complaint. J.A. 72a. The

superintendent believed that it was a “campus issue” and

“would have expected it to be addressed by the principals.”

Ibid. The superintendent was not aware that Title IX’s

implementing regulations require that a recipient of

federal funds have a grievance system for sexual discrimi-

nation claims and that the students be informed about that

system. J. A. 73a. The superintendent testified that the

district did not have any established policy that would have

governed how it responded to reports that a teacher might

be engaging in sexually abusive or harassing behavior

with a student. Pltf. Mot. for Partial Summ. Jdgmt., Exh.

Mr. Waldrop's intentions and what was said.” Pltf. Resp. to Def. Mot.

for Summ. Jdgmt., Exh. A (Tully Dep.) 42-45.

4 When the parents who had complained about Waldrop learned

that the principal had not reported their earlier complaints to the

district superintendent, they notified a school board member about their

complaints and were told that they were “not the only parent(s) [who]

had complained.” Tully Dep. 20. The school board member explained:

“We've had many complaints from other parents complaining

of Waldrop’s abusive treatment of students. And we just haven't been

able to catch him until now.” Tully Dep. 20. See also Gebser Dep. 33-

35.

2 (Collier Dep.), at 42. The district’s informal policy would

have been to investigate the matter immediately and com-

. pletely, including talking with the teacher, “other stu-

dents who might have been witness to this, anyone that

the parent referred you to that could substantiate the

charge, the student.” Id. at 43-45. If any of the alleged

comments or conduct occurred in front of other persons,

talking with the teacher would not be adequate, and the

investigation “would go beyond the teacher’s statement.”

Id. at 45.°

2. Gebser’s mother filed the instant action in state

court, on behalf of her daughter, who was then still a

minor, and on her own behalf. Respondent removed the

action to federal district court. In their second amended

complaint, petitioners alleged, inter alia, that respondent

had vio-lated Title IX of the Education Amendments

of 1972, 20 U.S.C. 1681 et seg. (Title IX). Pet. App. la.

Respondent moved for summary judgment on all claims,

and petitioners moved for summary judgment on the Title

IX claim. Pet. App. la-2a.

The district court denied petitioners’ motion and

granted respondent’s motion. Pet. App. la-10a.° Reasoning

that respondent could be held liable only for a policy of

discrimination in its federally funded education programs,

the court held that “[oJnly if school administrators have

some type of notice of the gender discrimination and fail to

5 Respondent later submitted an affidavit of the superintendent

that is inconsistent with the superintendent’s deposition and suggests

that respondent had a written sexual harassment policy. See J.A. 43a-

47a. That submission raises a disputed issue of fact and, in any event,

does not contradict the evidence that no Title IX policy or grievance

procedure was ever communicated to the students.

6 Petitioners also raised claims based on 42 U.S.C. 1983 and com-

mon law negligence; the court entered summary judgment for re-

spondent on those claims as well. Pet. App. 2a-5a. In this Court,

petitioners have raised only their Title IX claims.

respond in good faith can the discrimination be interpreted

as a policy of the school district.” Id. at 6a-7a (emphasis

omitted). The court ruled that, “in order to prevail on a

Title IX cause of action for personal injuries and damages,

a plaintiff must show the school district had actual or con-

structive notice of the nature or type of the discrimination

alleged by a plaintiff or notice of circumstances which

indicate a strong potential for the type of discrimination

alleged by the plaintiff.” Ibid. The court then character-

ized petitioners’ evidence regarding notice as only a

“complaint about offensive remarks made during class”

that was not sufficient to establish a genuine issue of

material fact as to respondent’s actual or constructive

notice of Waldrop’s sexually discriminatory conduct. Id.

at 9a.

3. The court of appeals affirmed (Pet. App. 1la-18a),

based on two Title IX cases it had recently decided. Id. at

12a (citing Rosa H. v. San Elizario Indep. Sch. Dist., 106

F.3d 648 (5th Cir. 1997); Canutillo Indep. Sch. Dist. v.

Leija, 101 F.3d 393 (5th Cir. 1996), cert. denied, 117 S. Ct.

2434 (1997)). First, the court rejected imposition of strict

liability on the school district in teacher-student sexual

harassment cases because it “is not part of the Title IX

contract.” Id. at 14a. Second, the court rejected liability

based on constructive notice because “there is not enough

evidence for a jury to conclude that a Lago Vista school

official should have known about the abuse”; in the court’s

view, the complaint about Waldrop’s inappropriate remarks

to students “did not concern [Gebser] and gave officials no

reason to think that Waldrop would have sex with a

student.” Ibid. Third, the court rejected liability based on

agency principles because “a common-law agency theory

would permit courts to use [Restatement (Second) of

Agency] § 219(2)(d) [(1958)] and that * * * section would

generate vicarious liability in virtually every case of

teacher-student harassment.” Id. at 15a. The court held

that “school districts are not liable in tort for teacher-

student harassment under Title IX unless an employee

who has been invested by the school board with supervi-

sory power over the offending employee actually knew of

the abuse, had the power to end the abuse, and failed to do

so.” Ibid.

SUMMARY OF ARGUMENT

In Franklin v. Gwinnett County Public Schools, 508

U.S. 60 (1992), the Court indicated that, in Title IX cases

involving teacher-student harassment, courts should look

to agency principles developed in Title VII cases involving

supervisor harassment. The Department of Education

has reasonably applied agency principles under Title IX in

a manner consistent with the particular circumstances of

the school setting. The Department interprets Title IX to

hold a federal fund recipient responsible for harassment

of students by a teacher if (a) the teacher was aided in

accomplishing the harassment by his agency relationship

with the recipient or his apparent authority; or (b) the

recipient knew or should have known of the harassment

and failed to take immediate and appropriate action to

remedy the situation. Highly relevant to that deter-

mination is whether the recipient has complied with the

longstanding regulatory mandate that it adopt a policy

against sex discrimination and an effective grievance pro-

cedure for such complaints, including complaints of sexual

harassment, and that that policy and procedure be com-

municated to students and employees.

Agency principles apply in Title IX cases in much the

same manner as in Title VII cases, although there are

relevant differences between the situation presented by a

student in an elementary or secondary school and an adult

in the workplace. School administrators and teachers,

acting in loco parentis, have substantially more authority

and control over elementary and secondary students than

employers have over employees; attendance is mandatory;

schools have duties to young children that do not apply in

the workplace; the teacher-student relationship provides

teachers with unusual influence; and the emotional, sex-

ual, and intellectual immaturity of children makes them

more vulnerable than adults to sexual harassment.

The court of appeals’ view that liability can be impos-

ed on a school district only if the harassing teacher's

supervisor actually knew of the harassment cannot be

reconciled with this Court’s holding in Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), that lack of

notice does not insulate an employer from liability for a

supervisor’s harassment of an employee. The standard

applicable under Title IX should be at least equally

protective of children victimized by sexual harassment by

teachers. The court of appeals misread Franklin as pre-

cluding damages in this case. The Court held in Franklin

that sexual harassment cases under Title IX involve

intentional discrimination and that therefore the normal

presumption in favor of all appropriate remedies, including

damages, applies.

Judged under the proper legal standards, the evidence in

this case raises issues of material fact that preclude entry

of summary judgment for respondent. The court of ap-

peals’ judgment should therefore be vacated and the case

remanded for further proceedings.

ARGUMENT

THE COURT OF APPEALS APPLIED THE WRONG

LEGAL STANDARD TO DETERMINE WHETHER

RESPONDENT SCHOOL DISTRICT COULD BE

LIABLE FOR DAMAGES, UNDER TITLE IX, TO A

STUDENT WHO WAS SEXUALLY HARASSED BY

ONE OF RESPONDENT'S TEACHERS

A. There Is A Basis For A School District's Liability

For Damages Under Title IX For Teacher-Student

Sexual Harassment When The Teacher Is Aided In

The Harassment By His Agency Relationship With

The School District Or Uses His Apparent Authority,

Or When The District Knew or Should Have Known

About the Harassment And Failed To Take Appro-

1. a. In Franklin v. Gwinnett County Public Schools,

503 U.S. 60 (1992), the Court held that money damages

remedy would be available, under Title IX of the Education

Amendments of 1972, 20 U.S.C. 1681 et seg., upon a suffi-

cient showing by a high school student who had been

sexually harassed by one of the district’s teachers. In

holding that a damages remedy against a school district is

authorized in such a case, the Court declared:

Unquestionably, Title IX placed on [the school

district] the duty not to discriminate on the basis of

sex, and “when a supervisor sexually harasses a sub-

ordinate because of the subordinate’s sex, that super-

visor diseriminatels on the basis of sex.” Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (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.

503 U.S. at 75. In Vinson, the Court held that hostile

environment sexual harassment is a form of sex dis-

crimination that is actionable under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seg, and that the

determination of employer liability for harassment of an

employee by a supervisor should be guided by agency

principles. 477 U.S. at 72. Citing Restatement (Second)

of Agency [hereinafter Restatement] §§ 219-237 (1958), the

Court made clear that, under such principles, employers

are not always liable for sexual harassment by their

superiors, but that “absence of notice to an employer does

not necessarily insulate that employer from liability.”

Vinson, 477 US. at 72.

b. In light of Franklin and Vinson, agency principles

and Title VII case law are appropriate guides for deter-

mining school district liability for harassment of a student

by a teacher in a hostile environment sexual harassment

case. Accordingly, the Department of Education relies

nder general principles of agency law, the master is liable for

torts committed by his servants while acting in the scope of employ-

ment. Restatement § 219(1), at 481. When the servant acts outside the

scope of his employment, the master is liable if (a) “the master intended

the conduct or the consequences,” (b) “the master was negligent or

reckless,” (e) “the conduct violated a non-delegable duty of the master,”

or (d) “the servant purported to act or to speak on behalf of the principal

and there was reliance upon apparent authority, or he was aided in

accomplishing the tort by the existence of the agency relation.“ Id.

§ 2192).

We discuss more fully the application of agency principles in Title

VII cases in our brief in Faragher v. City of Boca Raton, cert. granted,

No. 97-282 (Nov. 14, 1997). We have furnished a copy of our Faragher

brief to the parties in this case.

Several courts have looked to agency principles and/or Title VII

law in determining a recipient's liability under Title IX. See, eg.,

Kracunas v. lona College, 119 F.3d 80, 88 (2d Cir. 1997); Doe v.

Claiborne County, 103 F.3d 495, 513-514 (6th Cir. 1996); Kinman v.

Omaha Pub. Sch. Dist., 94 F.3d 463, 469 (8th Cir. 1996); Murray v. New

York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995); see

Lipsett v. University of Puerto Rico, 864 F.2d 881, 900 (Ist Cir. 1988);

on such legal authorities in its interpretation of Title IX.

That interpretation is reasonable, consistent with the

text and purpose of Title IX, and entitled to judicial

deference. Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984); Smiley v. Citi-

bank (South Dakota), N. A., 517 U.S. 735 (1996); see North

Haven Bd. of Educ. v. Bell, 456 U.S. 512, 522 n.12 (1982).

The Department has issued a 1981 policy memorandum

and a 1997 policy guidance addressing Title IX and sexual

harassment.” The 1981 policy memorandum cites Title

VII case law and the Title VII sexual harassment guide-

lines of the Equal Employment- Opportunity Commission

(EEOC) to support its interpretation of Title IX to cover

sexual harassment claims. Dep't of Educ. Policy Memo-

randum from Antonio J. Califa to Regional Civil Rights

Directors (Memorandum) at 2, 6, Tabs B, C (Aug. 31, 1981).

It discusses agency principles to explain that, “[iJn some

situations, a recipient may be liable under Title IX for

the sexual harassment acts of one student perpetrated

upon another student under an agency/principal theory,”

because where the institution receiving funds “has dele-

gated some responsibility to a student to act in an authori-

Mabry v. State Bd. of Community Colleges and Occupational Educ.,

813 F.2d 311, 317 (10th Cir.), cert. denied, 484 U.S. 849 (1987). The

Seventh Circuit has followed the Fifth Circuit in refusing to apply Title

VII agency principles under Title IX and refused to defer to the

Department's Guidance. Smith v. Metropolitan Sch. Dist. Perry Town-

ship, 128 F.3d 1014 (1997).

Under Title IX. Congress empowered federal funding agencies to

effectuate the prohibition against sex discrimination. As a provider of

such funds, the Department, as the ultimate sanction, may terminate

federal funding if “compliance cannot be secured by voluntary means.”

20 U.S.C. 1682. The Department is vested with the authority to pro-

mulgate rules, regulations, and orders to gain compliance by recipients.

Ibid

% For the convenience of the Court, we have lodged copies of both

of these documents with the Clerk.

tative position with respect to another student, the

institution is responsible for the acts of that student

acting in the delegated capacity.” Id. at 7. In other words,

when a teaching assistant uses his agency authority in

sexually harassing a student, “the recipient institution

would have responsibility under Title IX for those acts.”

Ibid. The necessary premise of that interpretation is that

a recipient institution would be responsible under Title IX

for sexual harassment of a student by a teacher employee

wielding authority over the student that is delegated to

him by the institution.

The Department’s 1997 policy guidance more specifi-

cally places the question of school district responsibility

under Title IX for teacher-student sexual harassment

within the framework of agency principles and Title VII

case law. Dep't of Educ., Office of Civil Rights (OCR),

Sexual Harassment Policy Guidance (Guidance), 62 Fed.

Reg. 12,034, 12,039, 12,047 n.18 (1997). Consistent with

those principles, when a “teacher or other employee uses

the authority he or she is given (e.g., to assign grades) to

force a student to submit to sexual demands, the employee

‘stands in the shoes’ of the schoo, and the school will be

responsible for the use of its authority by the employee or

agent.” 62 Fed. Reg. at 12,039. Thus, a Title IX recipient

school district should be liable for quid pro quo harass-

ment by its teachers, whether or not it had notice or

approved of the harassment. Id. at 12,039, 12,047 n.19

(citing Vinson, 477 U.S. at 70). Similarly, a recipient

school district should be liable for severe, persistent, or

pervasive, hostile environment sexual harassment by its

teacher or other employee if that person “was aided in

carrying out the sexual harassment of students by his or

her position of authority with the institution.” Id. at

12,039, 12,048 & nn. 22-24 (citing, inter alia, Restatement

§ 21%2)\(d), EEOC Policy Guidance and Title VII cases).

For example, a teacher who sexually harasses his student

by requiring the student to stay after class under the

guise of a disciplinary sanction is aided in carrying out

that harassment by the authority the district conferred on

him. Liability may also be imputed to the school district if,

“because of the school’s conduct, the employee reasonably

appears to be acting on behalf of the school, whether or

not the employee acted with authority.” 62 Fed. Reg. at

12,039, 12,048 n.22 (citing Restatement § 219(2\d)). For

example, a security employee may reasonably be perceived

by very young students as acting with the authority of the

educational institution although the actual delegation of

authority to him may be very limited.

Thus, consistent with Vinson, school districts will not

always be liable for sexual harassment by teachers and

administrators. Where the district has not had notice of,

and an opportunity to remedy, the hostile environment,

liability under Title IX should depend on factors such as

the extent of the delegation of actual authority to the em-

ployee, the effectiveness of the school’s grievance pro-

cedure (see pp. 15-18, infra), and the age of the student

(because the younger a student is, the more likely he or

she would reasonably consider any adult employee to be in

a position of authority). See 62 Fed. Reg. at 12,039. Of

necessity, this is a fact-dependent inquiry.

Whether or not an employee’s misconduct is aided by

the use of actual or apparent authority, a school district

should be liable for sexual harassment by an employee if

“an agent or responsible employee of the school” knew or

should have known of an existing hostile environment and

the school failed to take immediate and appropriate steps

to remedy that harassment. 62 Fed. Reg. at 12,039, 12,048

n.28 (citing Restatement § 219(2)(b)); id. at 12,050 n.63."

This is the standard the Department applies in cases involving

student-on-student sexual harassment. 62 Fed. Reg. at 12,039. A peti-

tion for a writ of certiorari presenting the question of Title IX's ap-

Notice to “an agent or responsible employee of the school”

serves as notice to the school. Jbid. Under this theory,

the school should be held liable for “its own discrimination

in failing to remedy [the harassment] once the school has

notice.” Jd. at 12,040. It does not “necessarily require

that the employee who receives notice of the harassment

also be responsible for taking appropriate steps to end the

harassment or prevent its recurrence,” so long as the

employee has a duty “to report the harassment to other

school officials who have [such] responsibility.” Jd. at

12,037. Cf. Younger v. Bayer Corp., 123 F.3d 672, 674-675

(7th Cir. 1997). This principle is important in the school

setting where, as we explain below (see p. 21, infra),

teachers are required by law to report sexual harassment

that rises to the level of suspected child abuse. Construc-

tive notice of the harassment depends on whether the

district exercised reasonable care given all the circum-

stances of the case. This includes, for example, whether

known incidents of harassment “should have triggered

an investigation that would have led to a discovery of the

additional incidents.” 62 Fed. Reg. at 12,042. In some

cases, the pervasiveness of the harassment itself may be

enough to establish constructive notice. Jd. at 12,042,

12,050 n.64 (citing Title VII cases).

An important factor in the determination of school

district liability under these agency principles is whether

the district has an effective policy against sex discrimina-

tion and a grievance procedure for such complaints, includ-

ing sexual harassment complaints, and has communicated

those policies and procedures to its students.” ¶ Without

plieability to such peer sexual harassment is currently pending before

the Court. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (11th

Cir.), petition for cert. pending, No. 97-843 (filed Nov. 19, 1997).

2 Since 1975, Title IX fund recipients have been mandated by

regulation to have such a policy that is disseminated to their students,

a policy and procedure, a student does not know either of

the school’s interest in preventing this form of discrimina-

tion or how to report harassment so that it can be reme-

died.” 62 Fed. Reg. at 12,040.

That is especially true in the elementary and secondary

school settings. Unlike the employment context, where

employees are more likely to be aware that there are

levels of management higher than their direct supervisors

from whom they can seek recourse, schoolchildren tend

to interact exclusively with their classroom teachers

and often may not understand the district’s channels of

authority. It is the classroom teacher through whom a

school district generally acts in day-to-day relations with

its students, not the school principal or school board

members. See Ambach v. Norwick, 441 U.S. 68, 81-82 n.15

(1979). And, due.to their intellectual, emotional, and

sexual immaturity, elementary and secondary school

students are substantially more vulnerable, especially to

sexual harassment, than are most adult employees. See

Eddings v. Oklahoma, 455 U.S. 104, 115 & n.11 (1982)

(minority “is a time and condition of life when a person

may be most susceptible to influence and to psychological

damage”). See also, e.g., Hazelwood Sch. Dist. v. Kuhl-

meier, 484 U.S. 260, 272 (1988); New Jersey v. T. L. O., 469

— 325, 342 (1985); Ingraham v. Wright, 430 U.S. 651, 662

(1977).

to identify a Title IX coordinator and inform students about how to

contact that person, to adopt a grievance procedure for prompt and

equitable resolution of sex discrimination complaints, and to publish

that procedure. 34 C.F.R. 106.8, 106.9; see 40 Fed. Reg. 24,139 (1975).

A separate policy and procedure for sexual harassment is not required

so long as a school’s “nondiscrimination policy and grievance pro-

cedures for handling discrimination complaints * * * provide effective

means for preventing and responding to sexual harassment.” 62 Fed.

Reg. at 12,040, 12.044- 12.045 (discussing features of effective grievance

procedures).

Thus, in the absence of a known policy and procedure, it

is more likely that a teacher would be aided by actual or

apparent authority in sexually harassing a student. For

example, if a child has not been told by the school what to

do if he or she is touched in an inappropriate manner by

anyone at school, including a teacher, it is more likely that

a teacher would be aided by his authority in sexually

harassing the child. The fact that a school does not have a

meaningful policy and grievance procedure for sexual

harassment complaints may create or contribute to the

appearance of authority of school employees to harass

students. See 62 Fed. Reg. at 12,040, 12,048 n.33 (citing

EEOC Policy Guidance). Moreover, the absence of an

effective policy and procedure can prevent the school from

learning of incidents of harassment about which the school

should have known—and on that basis can contribute to a

finding of liability. 62 Fed. Reg. at 12,040. This case may

be an example of that because there is evidence that

respondent did not communicate to its students that they

should report sexual harassment without fear of adverse

consequences and that Gebser, if she had known what to

do, would have reported it.

2. As Franklin suggests, the principles of agency li-

ability for sexual harassment apply under Title IX just

as they do under Title VII. As the Court indicated in

Vinson, however, application of common-law principles of

agency should take into account the particulars of the

pertinent statute. See 477 U.S. at 72 (noting that common-

law agency principles “may not be transferable in all

their particulars to Title VII“). The text of Title IX and a

school’s power over and duties to students suggest a broad

scope for vicarious liability in the elementary and

secondary school setting.

a. Title IX is cast in very broad terms and is not

limited, as is Title VII, to particular actors (employers)

and their agents. Title IX imposes, as a condition on re-

ceipt of federal funds, the blanket prohibition that

[nJo 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. Congress did not limit the nondiscrimina-

tion mandate to conduct engaged in “by” the recipient or

its agents, but rather extended it to any “exclu[sion]

from participation in,” denilal of] the benefits of,” or

subjeetlion] to discrimination under,” any federal fund

recipient’s educational programs or activities.“ In

Cannon v. University of Chicago, 441 U.S. 677 (1979), the

Court recognized that Congress drafted Title IX “with an

unmistakable focus on the benefited class,” and did not

“writ(e] it simply as a ban on discriminatory conduct by

recipients of federal funds or as a prohibition against the

disbursement of public funds to educational institutions

engaged in discriminatory practices.” 441 U.S. at 691-693;