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

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Supreme Court, Us

FILED

No. 96-1866 FEB 13 1998

4. CLERK

In The

Supreme Court of the United States

October Term, 1997

ALIDA STAR GEBSER and

ALIDA JEAN MCCULLOUGH,

Petitioners,

LAGO VISTA INDEPENDENT SCHOOL DISTRICT,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

o-—

BRIEF AMICI CURIAE OF

TASB LEGAL ASSISTANCE FUND

Texas Association of School Boards,

Texas Association of School Administrators, &

Texas Council of School Attorneys, et al.

IN SUPPORT OF RESPONDENT

Carovtyn M. HANAHAN

Counsel of Record

TASB Lecat Assistance FuND

Texas Association of School Boards,

Texas Association of School

Administrators, &

Texas Council of School Attorneys

7703 N. Lamar Blvd.

Austin, Texas 78763

(512) 467-3610

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Arizona School Boards Association

Arkansas School Boards Association

Idaho School Boards Association

New York State School Boards Association

North Carolina School Boards Association

Ohio School Boards Association

Oklahoma State School Boards Association, Inc.

Tennessee School Boards Association

Wyoming School Boards Association

TABLE OF CONTENTS

Page

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SUMMARY OF THE ARGUMENT .................

PTT Ty VT Tee rye ere eer Ty ere

I. Title IX liability should be imposed only when an

educational institution has actual knowledge that

a teacher is sexually harassing or sexually abus-

Se 0 DEIR io os var ececeSarn ceendioareeneicess

A. Title IX, a Spending Clause statute, has a

limited purpose and scope ................

B. Franklin v. Gwinnett did not articulate nor

imply a standard of liability for actions

brought under Title IX; it held only that an

action for money damages exists for viola-

CO GE Taree GO ob hab Ke cnt os keshsiedecescc’s

C. The standard for determining liability under

Title IX should be comparable to the stan-

dard used for determining liability under

OCG THs 05.60. 00:b bs eb dadenns bade shstnes

1. The plain language of Title IX prohibits

discrimination by “educational institu-

tions”; it makes no mention of educa-

tional institutions’ employees ..........

***

TABLE OF CONTENTS - Continued

Page

Like Title IX, Section 1983 requires action

Se Sn ED Nivcicta ceGuhedecuncetdsdne

Actual knowledge is similar to deliberate

RR ste necensseWsncesequaaesasa,

a. An actual knowledge standard will

not negate school districts’ respon-

sibility, nor will it encourage districts

to ignore instances of sexual harass-

ment and sexual abuse.............

b. Agency principles will not increase

ID oes cewtuwe vectcsadedseccss

Applying agency or agency-like princi-

ples to Title IX actions would contravene

Congressional intent and the principles

this Court articulated in Monell ........

a. The Title VII constructive notice

standard should not be transferred to

EN RES IP Pe

b. Applying pure agency principles to

Title IX would create a federal law of

respondeat superior ............6..05.

School districts have no affirmative duty

to prevent constitutional harm under the

Fourteenth Amendment, nor should

such a duty be read into Title IX .....

A school district should not be liable for a

teacher’s sexually abusive acts simply

because it has not complied with the nomi-

nal terms of the Title IX regulations .....

TABLE OF CONTENTS - Continued

Page

D. An actual knowledge standard of liability

preserves the tradition of not awarding

punitive damages against a governmental

GT ce cccccsnccecdnseceobsuseeseseuvseres

ll. Petitioner's standard of liability would subject

school districts to potentially devastating mone-

OBEY GIR. 66 0c cn rhiiccctentdnestceneutaceses

A. The statute itself makes no mention of lia-

B. An actual knowledge standard would not

discourage meritorious actions; however, it

would help prevent the onslaught of claims

that a lower standard would undoubtedly

DOUG oc ccccicccccckbineds eeeeene bene owen

C. Despite their best efforts, school districts

cannot guarantee that sexual abuse will not

OTE chin nés canecncdtduendesceunautnadoncis

CPE MMIUEIES woncecusdcédnvipececnnkepreenesenaent

EEE LS mee

TABLE OF AUTHORITIES

Page

Cases Crrep:

Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d

Se) ee Se SR Ps noccscntiwantianevaseces 15

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106

Be GR Fee See kedednncunensh saecabdadasesabwes 18

Board of County Comm'rs of Bryan County v. Brown,

cee Ct Be Gh TERS GNF cock ccvcicisscs 9, 10

Bowles v. Floresville Indep. Sch. Dist., 84 F.3d 432

(Sth Cir. 1996) (unpublished decision)............. 24

Brzonkala v. Virginia Polytechnic Inst., No. 96-1814,

1997 WL 7855239 (4th Cir. Dec. 23, 1997) .......... 6

Cannon v. University of Chicago, 441 U.S. 677, 99 S.

Ch See PEE cob ndansdddpeaceneicsVebsbunceces 5, 22

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

Cir. 1996), cert. denied, __ U.S. __, 117 S. Ct.

Pe Ne so seb cdnénbdescedsuscceeetsbinwerss 22, 24

Canutillo Indep. Sch. Dist. v. National Union Fire

Insurance Co., 99 F.3d 695 (5th Cir. 1996).......... 23

City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.

Ge Pe SE ob ns enn canessopcucsuectcunehecaneds 20

City of Newport v. Fact Concerts, Inc., 453 U.S. 247,

Se Oh ee Oe COED nvdenasbscckdeniacectcces 21, 22

Deshaney v. Winnebago County Dept. of Social Servs.,

489 U.S. 189, 109 S. Ct. 998 (1989)................ 18

TABLE OF AUTHORITIES — Continued

Page

Doe v. Bridgeport Indep. Sch. Dist., No. Civ. A. 3: 94-

CV-1889D, 1997 WL 279142 (N.D. Tex. May 14,

1997) (unreported opinion). .................560055 25

Doe v. Bridgeport Indep. Sch. Dist., Civ. A. No. 3: 94-

CV-1889D, 1996 WL 734949 (N.D. Tex. Dec. 11,

1996) (unreported opinion)....................5555 25

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

Se, BOGE eves cvncecencctgact ven ebtadtosee bec 6, 7, 15

Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412 (5th

- BS ft Nr re ore rt Te ere 18, 24

Doe v. Lago Vista Indep. Sch. Dist., 106 F.3d 1223

BR GD SRP cos castle vsesveccisatpavevedcasenes 24

Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1451

a Gee hs os 0S e vee csatbpkaa beeeenehsian ans 15

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir.

OPED Wie DOMED. cic cbeccccicccksetasenctannans passim

Dorothy ]. v. Little Rock Sch. Dist., 7 F.3d 729 (8th

GO Te ok cknennccgissdseacaveckneksnsiensdunets) 18

D.R. ex rel L.R. v. Middle Bucks Area Vocational Tech.

Sch., 972 F.2d 1364 (3d Cir. 1992) (en banc), cert.

denied, 506 U.S. 1079, 113 S. Ct. 1045 (1993)....... 18

Faragher v. City of Boca Raton, 111 F.3d 1530 (11th

Cir.), cert. granted, 118 S. Ct. 1530 (1997)....... 16, 19

Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970

GRR GED « ccccnnkceduvcducscedessh enincduasesqapeesac 10

Floyd v. Waiters, No. 94-8667, 1998 WL 17093 (11th

Cee BUG. Bb. FOOD vcnbanteedsdbuncetiécsest 6, 7, 8, 14

oe ee A "

Vii

TABLE OF AUTHORITIES - Continued

Page

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,

See Oy GR, Tie CRUD oc ccwrcsssossess 5, 6, 21, 24, 25

Garza v. Galena Park Indep. Sch. Dist., 914 F. Supp.

ee es Ce SD as dhedven ws oddukevisdiveceses 25

Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745

Se GE SEs wh dan hb beh daekkeceveudubnk sedeedes 10

Jane Doe “A” v. Special Sch. Dist., 901 F.2d 642 (8th

RE SE Soscen sec deandckivesdcodhesdsvactnses 10, 12

Jansen v. Packaging Corp. of America, 123 F.3d 490

(7th Cir. 1997) (en banc)............... 16, 21, 26, 27

].O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d

ee ee SU bin SWédud tude sdecsusacnddas cies 19

].W. v. Bryan Indep. Sch. Dist., No. H-93-3790 (S.D.

Tex. 1995) (unpublished order).................... 25

Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241 (5th Cir.

nActh 0 he bRSGd sb ceedh sda seodeedi bined theacbed 8, 9

Kinman v. Omaha Pub. Sch. Dist., 94 F.3d 463 (8th

Ge ME. kdb kek dahl evedoesicenssnaddbansbeeesbeges 6

Kracunas v. lona College, 119 F.3d 80 (2d Cir. 1997)..... 6

Leija v. Canutillo Indep. Sch. Dist., 887 F. Supp. 947

(W.D. Tex. 1995), rev'd, 101 F.3d 393 (1996)

jubabudS6ae6 e6dayaeshanvesdeséonsaeunees 23, 24, 26, 29

Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir.

Pes esHdak wend Cebtdocovccovesadnsdubstdeccescects 6

Marsh v. Dallas Indep. Sch. Dist., No. 3:94-CV-255-

ik Ee Ss DOD cee kvincctseebdoteness Nicucayes 24

viii

TABLE OF AUTHORITIES — Continued

Page

Mary M. v. North Lawrence Community Sch. Corp.,

131 F.3d 1220 (7th Cir. 1997).......cccceeveeeceves 13

Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 106

BD. Ce, BAR CRIB oc cecccctinesvesvecsereessncses 5, 6

Monell v. Department of Social Servs. of N.Y., 436

U.S. 658, 98 S. Ct. 2018 (1978).......... 9, 12, 15, 17

P.B. v. Koch, 96 F.3d 1298 (9th Cir. 1996) ............. 7

Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.

CR, BAIR GOI sc wecccnccvonccasccbestupegevessecs 11

Piwonka v. Tidehaven Indep. Sch. Dist., 961 F. Supp.

BOD GER Be, COGED onc ve cvevsccvcidinsntsnywts bee 25

Rizzo v. Goode, 423 U.S. 361, 96 S. Ct. 598 (1976).... 11

Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d

— J xe Bh , PPT Ter er to rey passim

Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006

(5th Cir. 1996), cert. denied, _. U.S. __, 117 S.

CE. BED CRED ive vesivccesecccnccsensncctcessess 5, 24

Sargi v. Kent City Bd. of Educ., 70 F.3d 907 (6th Cir.

FPO vecntnccnvesdesctvchscusdsdaddbadaneias 540.0% 18

Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996)

icake nie Cabddunebsiedetuaddandtntee 10, 13, 18, 19

Smith v. Metropolitan Sch. Dist. Perry Township, er

Pe BERS CFU CO BOSE Pec cc ccesvvsevcessess 6, 14, 17

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720

CO GOR QUOD ccc cdcccevetonssesdnccssccuegess 7, 15

TABLE OF AUTHORITIES — Continued

Page

STATUTES AND ReGuLations Cirep:

SO UBL. Be BGBEGG, GRPRIB). ooo ccccccccccctcsccecs 7-8

Se Sd Ae AS Wn s'nns Chbapoweruscdtecsecceses passim

ee tee ED 0b da kcer census cues es4duce vides 16

ey ee ee is 6 6's 00 kines whabadeauente dencuebanh 20

Tex. Epuc. Cope ANN. §§ 11.151(b), (d) (Vernon

ER RR ee Pe Ps Sie est: Be 1, 8

Tex. Epuc. Cope ANN. § 21.355 (Vernon 1996)........ 28

OrHer MareriA.s:

U.S. DEPARTMENT OF EDUCATION, OFFICE

FOR CIVIL RIGHTS, Sexual Harassment Guid-

ance, 62 Fed. Reg. 12034 (1997)............ 13, 17, 18

INTEREST OF AMICI

Nearly 750 public school districts in Texas are mem-

bers of the TASB Legal Assistance Fund, which advocates

the positions of local school districts in litigation with

potential state-wide impact. The TASB Legal Assistance

Fund is governed by three organizations: The Texas Asso-

ciation of School Boards (TASB), the Texas Association of

School Administrators (TASA), and the Texas Council of

School Attorneys (CSA). The Texas Association of School

Boards (TASB) is a non-profit unincorporated association

of the public school districts of the State of Texas.

Approximately 1047 public school districts in the state,

through their elected boards of trustees, have joined as

members of TASB. The members of TASB are responsible

for the governance of the public schools of Texas. See Tex.

Epuc. Cope ANN. §§ 11.151(b), (d) (Vernon 1996). The

Texas Association of School Administrators (TASA) repre-

sents the state’s school superintendents and other admin-

istrators who are responsible for carrying out the

education policies adopted by their local boards of

trustees. The Texas Council of School Attorneys (CSA) is

composed of attorneys who represent more than 90% of

the public school districts of Texas.

The Arizona School Boards Association is a non-

profit corporation, whose membership is composed of the

governing boards of 217 of Arizona's 225 public school

districts.

The Arkansas School Boards Association is a non-

profit organization whose membership consists of all the

311 school districts in Arkansas.

The membership of the Idaho School Boards Associa-

tion is responsible for the education of more than 95% of

Idaho's public school children. The Association has 109 as

members and serves 562 individual trustees.

The Indiana School Boards Association is a non-profit

association consisting of all 290 reorganized public school

boards in Indiana. Its purpose is to promote the efficient

and effective administration and operation of the public

school corporations in the state.

The New York State School Boards Association is a

not-for-profit corporation whose statutory purpose is to

devise “practical ways and means for obtaining greater

economy and efficiency in the administration of public

school district affairs and projects” on behalf of public

school districts in New York.

118 of the 119 local boards of education in North

Carolina belong to the North Carolina School Boards Asso-

cation, which exists to serve these boards as they set the

policies that govern the education of more than the one

million students who attend the public schools in the state.

The Ohio School Boards Association is a non-profit

organization created for the purpose of assisting Ohio

boards of education in matters relating to the conduct

and operation of the public schools of that state.

Although membership is voluntary, 100% of the city,

county, local, exempted village and joint vocational

school districts throughout the state of Ohio are members

of the Ohio School Boards Association.

The Oklahoma State School Boards Association, Inc.

is a private 501(c)(3) nonprofit association whose mem-

bership consists of more than 98% of the boards of educa-

tion of public school districts in the State of Oklahoma.

The Association’s membership is responsible for the edu-

cation of more than 98% of the state’s public school

children.

The Tennessee School Boards Association is a not-for-

profit organization whose mission is to assist Tennessee's

school boards in effectively governing public school sys-

tems.

The Wyoming School Boards Association was formed

to serve as a collective voice for school boards throughout

the state and to provide local boards of education with

the specialized information they need to operate Wyo-

ming’s public schools in the most efficient and effective

way possible.

The TASB Legal Assistance Fund and the other asso-

ciations listed above urge this Court to uphold the deci-

sion of tne court below. While school districts continually

strive to prevent sexual harassment and sexual abuse of

their students, a standard of liability that would increase

their exposure to litigation and liability would do little to

eradicate the problem. In fact, the standard of liability

Petitioners propose could impede school districts’ ability

to develop effective sexual harassment prevention pro-

grams by diminishing school district resources. The

actual knowledge standard developed by the court below,

on the other hand, ensures that victims of teacher-student

sexual abuse are compensated if the abuse results from

school district action, but denies such damages if the

school district neither caused nor facilititated the abuse.

This standard thus strikes a balance between efforts to

prevent sexual harassment and the realistic constraints on

school districts’ ability to eliminate sexual harassment

and abuse completely.

STATEMENT OF THE CASE

Amici incorporates by reference the statement of the

case contained in Respondent's brief.

SUMMARY OF THE ARGUMENT

Title IX was enacted to deter sex discrimination by

educational institutions. This Court has determined that

sexual harassment is a form of sex discrimination and

that victims of sexual harassment by educational institu-

tions may recover monetary damages under Title IX.

While Petitioners would have this Court look at Title IX

with blinders on, we suggest the Court consider the

interaction of this statute’s standard of liability with

other laws. In particular, we encourage the court to con-

sider Section 1983 and the case law developed under it,

which addresses the circumstances under which govern-

mental entities can be liable for the very same harm. An

actual knowledge standard similar to the deliberate indif-

ference concept in constitutional cases provides the most

appropriate standard for analyzing teacher-student sex-

ual harassment and sexual abuse claims brought under

Title IX. Not only would it align constitutional jurispru-

dence with Title IX case law, thus allowing for consistent

imposition of liability on governmental entities, it would

also provide the best solution from a public policy stand-

point: school districts would still have incentive to take

preventive measures but would not face potentially crip-

pling liability if those preventive measures fail. As much

as public school officials deplore sexual abuse of stu-

dents, there is no way for school districts to guarantee

that sexual harassment or sexual abuse will never occur.

Further, vicarious liability does little to promote preven-

tive efforts. An actual knowledge standard, on the other

hand, limits unwarranted liability while promoting pre-

ventive efforts.

ARGUMENT

I. Title IX liability should be imposed only when an

educational institution has actual knowledge that a

teacher is sexually harassing or sexually abusing a

student.

A. Title IX, a Spending Clause statute, has a lim-

ited purpose and scope.

As this Court has recognized, Title IX was enacted to

accomplish two objectives: (1) to avoid the use of federal

resources to support discriminatory practices; and (2) to

protect individual citizens from those discriminatory

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

705, 99 S. Ct. 1946, 1961 (1979).! Accordingly, when a

recipient of federal funds discriminates on the basis of

sex, it violates Title IX. This Court has further determined

that sexual harassment is a form of sex discrimination.

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112

S. Ct. 1028, 1037 (1992).? But while Title IX is an important

piece of legislation, designed to provide nondiscrimina-

tory opportunities in education, it was not designed as a

“cure-all” for all types of discrimination. Rowinsky v.

Bryan Indep. Sch. Dist., 80 F.3d 1006, 1014 (5th Cir.), cert.

denied, _U.S.__, 117 S. Ct. 165 (1996). Nor could it have

been intended, by Congress or this Court, to establish in

Title IX, a spending statute, substantive rights greater

than those protected by the Fourteenth Amendment to

the U.S. Constitution. Petitioners propose a standard of

liability, however, that would make Title IX much more

protective than the Constitution.

B. Franklin v. Gwinnett did not articulate nor

imply a standard of liability for actions brought

under Title IX; it held only that an action for

money damages exists for violations of Title IX.

In Franklin ». Gwinnett, this Court cited Meritor Sav.

Bank F.S.B. v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399

(1986), a case involving sexual harassment in the work-

place and arising under Title VII. Franklin, 503 U.S. at 76,

! While we do not agree with the result in Cannon, we do

not challenge its validity here.

2 This decision is cited for the purposes of argument only,

for we are not convinced that sexual abuse is a form of

discrimination based on sex.

112 S. Ct at 1037. Little could this Court have predicted

that in citing Meritor for the limited proposition that

sexual harassment is a form of sex discrimination, many

lower courts would interpret this reference to mean that

Title VII standards dictate the outcome of Title IX cases.

See, e.g., Brzonkala v. Virginia Polytechnic Inst., No. 96-1814,

1997 WL 7855239 (4th Cir. Dec. 23, 1997); Kracunas v. lona

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

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

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

Lipsett v. Univ. Of Puerto Rico, 864 F.2d 881, 899-900 (1st

Cir. 1988). This overly simplistic conclusion is not sup-

ported by the language of Title IX, Congressional intent,

or public policy. What these courts have failed to under-

stand is that this Court merely referenced Title VII in

Franklin v. Gwinnett for the limited purpose of determin-

ing whether sexual harassment is the equivalent of sex

discrimination. Three circuit courts of appeals have rec-

ognized as much and have declined to apply Title VII

standards in Title IX teacher-student sexual abuse cases.

See, ¢.g., Floyd v. Waiters, No. 94-8668, 1998 WL 17093 at *2

(11th Cir. Jan. 20, 1998) (adopting Fifth Circuit's rejection

of various potential theories of liability, including Title

VII); Smith v. Metropolitan Sch. Dist., 128 F.3d 1014, 1034

(7th Cir. 1997); Rosa H. v. San Elizario Indep. Sch. Dist., 106

F.3d 648, 656-658 (5th Cir. 1997). In so holding, they have

refused to impose institutional liability based on a single

act of one of the entity’s employees. Yet under Peti-

tioners’ proposed standard of liability, institutional lia-

bility would be premised not on the acts of the

educational institution itself, but on a single,

unauthorized act of one of its employees. This Court now

has the opportunity to clarify the seemingly broad lan-

guage of Franklin v. Gwinnett and ensure that Title IX

cases are resolved in a manner consistent with legislative

intent, legislative history, and with this Court's consistent

treatment of public educational institutions.

C. The standard for determining liability under

Title IX should be comparable to the standard

used for determining liability under Section

1983.

Although this Court has yet to address the issue,

many circuit courts have recognized that sexual abuse of

a student by a school teacher acting under color of state

law violates that student's right to bodily integrity under

the substantive due process clause and is therefore

actionable under Section 1983. See, e.g., Doe v. Claiborne,

103 F.3d at 506; P.B. v. Koch, 96 F.3d 1298, 1302 (9th Cir.

1996); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452-454

(Sth Cir. 1994) (en banc); Stoneking v. Bradford Area Sch.

Dist., 882 F.2d 720, 726 (3d Cir. 1989). Students who suffer

such violations, like the harm alleged in this case, should

be required to pursue their cause of action under the

standards similar to those articulated in Section 1983

jurisprudence.

1. The plain language of Title IX prohibits dis-

crimination by “educational institutions”; it

makes no mention of educational institu-

tions employees.

Title IX prohibits discrimination by educational insti-

tutions. Accordingly, “institutional misconduct is the basis

for institutional liability.” Floyd v. Waiters, No. 94-8667,

1998 WL 17093 at *4. Under Title IX, this “institution” is

the “local educational agency,” which is defined as “the

public board of education or other public authority legally

constituted within a State for either administrative control

or direction of, or to perform a service function for, public

elementary or secondary schools. ... ” 20 U.S.C.

§§ 1687(2)(B), 8801¢:8). The Eleventh Circuit Court of

Appeals reasoned that this definition would not allow

institutional liability to be premised on an employee's

knowledge of sexual harassment; rather, it could be based

only on knowledge by those authorized to act on behalf of

the district. In the case before the Eleventh Circuit Court,

state law indicated that the school board and the superin-

tendent were authorized to take actions on behalf of the

school district.* The fact that a person occupying a lower

position in the district had notice of sexual harassment, the

court concluded, would not impute liability to the district:

We do not think that school districts, in reality,

have actual knowledge - the knowledge to sup-

port potentially million-dollar liability for the

school district - whenever, for example, a dep-

uty assistant director of transportation (but no

one higher-up) may know that a bus driver is

harassing someone or the foreman (but no one

higher-up) of the district's emergency plumbing

crew has knowledge of misconduct, and these

supervisors could fire (but do not) the harassers.

Floyd, 1998 WL 17093 at *8, n.9. The 11th Circuit thus

recognized, as this Court should, that liability for Title IX

violations must be based only on actions of the entity.

2. Like Title IX, Section 1983 requires action by

the entity.

In order to establish government liability under Sec-

tion 1983, a plaintiff must show that “execution of a

government's policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be

* In Texas, the school board “has the exclusive power and

duty to govern and oversee the management of the public

schools,” Tex. Epuc. Cone Ann. § 11.151(b) (Vernon 1996); Jett v.

Dallas Indep. Sch. Dist., 7 F.3d 1241 (5th Cir. 1993).

said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.”

Monell v. Dept. of Social Servs. of N.Y., 436 U.S. 658, 695, 98

S. Ct. 2018, 2037-2038 (1978). This approach ensures that

liability is based on actions of the entity: “Locating a

‘policy’ ensures that a muncipality is held liable only for

those deprivations resulting from the decisions of its duly

constituted legislative body or of those officials whose

acts may fairly be said to be those of the muncipality.”

Board of County Commissioners of Bryan County v. Brown,

__US.__, 117 S. Ct. 1382, 1388 (1997) (citing Monell, 436

U.S. at 698, 98 S. Ct. at 2027). Additionally, institutional

liability under Section 1983 may be based on the decision

of someone with final policymaking authority. Bryan

County v. Brown, U.S. 117 S. Ct. at 1389; Jett v.

Dallas Indep. Sch. Dist., 7 F.3d 1241 (5th Cir. 1993). Lia-

bility for constitutional violations, therefore, is premised

on actions of the governmental entity, not on actions of its

‘employees. As Title IX has a similar focus on the institu-

tion, rather than employees, a similar standard should

apply. If a similar standard were used in Title IX teacher-

student sexual harassment cases, liability would be

based, as the language of Title IX contemplates, on the

actions of the “educational institution.”

3. Actual knowledge is similar to deliberate

indifference.

Under an actual knowledge standard, an educational

institution would be found to discriminate on the basis of

sex when it had actual knowledge that a school district

employee was sexually harassing, abusing, or otherwise

discriminating against a student and failed to take action

to stop the offensive activity. Continuing with the Section

1983 analogy, “actual knowledge” is the substantial

equivalent of “deliberate indifference.” Deliberate indif-

ference can be established by showing that: (1) the defen-

dant learned of facts or a pattern of inappropriate sexual

behavior by a subordinate pointing plainly toward the

conclusion that the subordinate was sexually abusing the

student; and (2) the defendant demonstrated deliberate

indifference toward the constitutional rights of the stu-

dent by failing to take action that was obviously neces-

sary to prevent or stop the abuse; and (3) this failure

caused a constitutional injury to the student. Doe v. Taylor,

15 F.3d at 454; see also, Gonzalez v. Ysleta Indep. Sch. Dist.,

996 F.2d 745, 760 (5th Cir. 1993) (holding that the school

board did not ignore or turn a blind eye to accusations

that a teacher sexually abused students, when the school

board investigated the alleged incidents and reassigned

the teacher; the board may have been negligent, but as

the board had virtually no proof that the teacher had

touched a student in an inappropriate manner, the board

had not acted with deliberate indifference); see also, Jane

Doe “A” v. Special School Dist., 901 F.2d 642, 645 (8th Cir.

1990). Accepting “actual knowledge” as similar to “delib-

erate indifference,” a school district will be liable under

Title IX when it consciously disregards or is deliberately

indifferent to sexual harassment of students by school

district employees. Seamons v. Snow, 84 F.3d 1226, 1235

(10th Cir. 1996); Doe v. Taylor, 15 F.3d at 453 (explaining

that a governmental entity cannot supervise its

employees in a manner that manifests deliberate indif-

ference to the constitutional rights of citizens). Deliberate

indifference is relevant, the Fifth Circuit Court has

explained, because it “highlight[s] the distinction

between an intentional wrong and a wrong that flows

from mere neglect.” Rosa H., 106 F.3d at 659 (citing Farmer

v. Brennan, 511 U.S. 825, 843-844, 114 S. Ct. 1970,

1978-1980 (1994) for its definition of deliberate indif-

ference). The same rationale applies with even greater

force in the Title IX context, due to the statute’s specific

focus on the institution. “Actual knowledge” in Title IX

actions will function just as the deliberate indifference

standard has in Section 1983 actions. Such indifference,

disregard, or actual knowledge can be established by

showing that a school district knew of a danger of harass-

ment and chose not to alleviate that danger. Rosa H., 106

F.3d at 659.

In keeping with this Court's interpretation of deliber-

ate indifference, the actual knowledge standard will not

mean that a plaintiff will recover only when a school

board takes official action or adopts a policy that clearly

discriminates on the basis of sex. A governmental cus-

tom, practice, or policy can be informal, implicit, or based

on the entity’s failure to act in the face of obvious viola-

tions. Rizzo v. Goode, 423 U.S. 361, 371, 96 S. Ct. 598, 604

(1976). Nor would an actual knowledge standard mean

that widespread abuses would have to be shown before

finding liability. Under Petitioners’ theory, however, a

school district would be liable simply because it

employed a tortfeasor - and nothing more. This Court

has not allowed vicarious liability for constitutional vio-

lations. Certainly, it cannot intend for the same harm to

be remedied through vicarious liability under Title IX, a

Spending Clause statute. By its terms, Title IX reflects

Congress's intent for educational institutions to be liable

for their own illegal acts; however, Congress did not

obligate educational institutions to control the

unauthorized conduct of others. See Bryan County,

__US.__, 117 S. Ct. at 1388 (citing Pembaur v. City of

Cincinnati, 475 U.S. 469, 479, 106 S. Ct. 1292, 1298 (1986)).4

The actual knowledge standard is preferable because it

prevents plaintiffs from skirting the requirements of

Monell and its progeny to recover monetary damages for

harm that could be remedied through Section 1983. In

addition, it prevents Title IX from becoming a federal law

of respondeat superior.

a. An actual knowledge standard will not

negate school districts’ responsibility,

nor will it encourage districts to ignore

instances of sexual harassment and sex-

ual abuse.

Petitioners suggest that an actual knowledge stan-

dard would negate school districts’ responsibility and

encourage them to turn a blind eye toward sources of

sexual abuse. Petitioners’ brief at 34. This argument fails

for two reasons. First, individual supervisory officials

may be held personally liable for sexual abuse committed

by their subordinates under Section 1983; thus, they have

an intense personal interest in ensuring that they follow

up on the slightest suspicion that a school district

employee may be sexually abusing a student. Doe v. Tay-

lor, 15 F.3d at 454; see, also, Jane Doe “A” v. Special School

Dist., 901 F.2d at 645. Second, the school district itself

may be liable under both Title IX and Section 1983. See,

e.g., Doe v. Taylor, 15 F.3d at 443 (recognizing that a

governmental entity is liable under § 1983 if it supervises

its employees in a manner that manifests deliberate indif-

ference to the constitutional rights of citizens); Rosa H.,

106 F.3d at 652-3 (articulating actual knowledge standard

* While this case interprets the language of Section 1983, it

provides guidance here, since neither Section 1983 nor Title IX

contain language that requires control of another.

for determining school district liability in Title IX teacher-

student sexual harassment cases). Therefore, school dis-

tricts will adopt policies and implement procedures

requiring investigation of and responses to allegations of

sexual harassment or sexual abuse.

b. Agency principles will not increase vig-

ilance.

Petitioners and their Amici argue that the Office for

Civil Rights’ 1997 Guidance, which incorporates agency

principles, is necessary to ensure school districts’ vig-

ilance. Brief of United States at 20; Petitioner's Brief at

36-38; U.S. DEPARTMENT OF EDUCATION, OFFICE

FOR CIVIL RIGHTS, Sexual Harassment Guidance, 62

Fed. Reg. 12034, 12039 (1997). Their argument ignores the

very real standards under which school districts and

school officials already operate - the duty not to be

deliberately indifferent to the constitutional rights of stu-

dents to be free from sexual abuse by a teacher. See, ¢.g.,

Seamons v. Snow, 84 F.2d 1226, 1234 (10th Cir. 1996); Doe v.

Taylor, 15 F.3d at 454. Just as the deliberate indifference

standard encourages districts to protect against constitu-

tional violations, the actual knowledge concept encour-

ages prevention of Title IX violations.> Moreover, “school

5 At least one court has interpreted the actual knowledge

standard very broadly. See Mary M. v. North Lawrence Community

Sch. Corp., 131 F.3d 1220, 1225 (7th Cir. 1997) (holding that principal

had actual knowledge of sexual harassment when he overheard a

cafeteria employee and a student planning to miss school on the

same day.) Such an interpretation hardly permits districts to turn a

blind eye to potential sexual harassment or sexual abuse of a

student by a teacher. But even under the definition of actual

knowledge applied in Mary M., Lago Vista ISD would not be liable

for Frank Waldrop’s sexual abuse of Gebser, for it had absolutely no

hint such a relationship was occurring.

boards that adopt a head-in-the-sand policy would be

foolish indeed, morality aside, because they would

encounter liability under 42 U.S.C. § 1983.” Rosa H., 106

F.3d at 658. Petitioners’ theory, on the other hand, would

expose educational institutions to vicarious liability fer

all acts of their employees — a result this Court has been

unwilling, thus far, to impose on governmental entities.

Given the legal incentive that already exists, in the

form of the deliberate indifference and actual knowledge

standards, to prevent sexual harassment and sexual

abuse, Petitioners’ proposal to apply Title VII and agency

standards is unnecessary. Deliberate indifference, a stan-

dard that has been working to protect constitutional

rights for years, already demands that school districts

prevent sexual discrimination. Cases decided since the

facts in this case arose have strengthened this incentive

and will work to minimize future instances of similar

injuries. See, e.g., Doe v. Taylor, 15 F.3d at 454 (articulating

test for determining individual supervisory liability

under Section 1983); Rosa H., 106 F.3d at 658 (adopting

actual knowledge standard in Title IX teacher-student

sexual abuse cases); Smith, 128 F.3d at 1034 (adopting

actual knowledge standard in Title IX teacher-student

sexual abuse cases); Floyd, 1998 WL 17093, at *4 (adopting

actual knowledge standard in Title IX teacher-student

sexual abuse cases). Actual knowledge will adequately

protect students from discrimination by encouraging

school districts to take preventive measures: Title IX lia-

bility will be found if the school district actually knew of

a substantial risk that students would be sexually

harassed and failed to respond. Rosa H., 106 F.3d at 659.

School districts are already working to prevent sexual

abuse and sexual harassment that could lead to constitu-

tional injury. In the process, they are preventing, to the

extent possible, violations of Title IX.®

4. Applying agency or agency-like principles

to Title IX actions would contravene Con-

gressional intent and the principles this

Court articulated in Monell.

a. The Title VII constructive notice stan-

dard should not be transferred to Title

IX cases.

Despite Title IX’s focus on the entity, rather than

employees, Petitioners would have this Court articulate a

standard of liability that is based on principles deveioped

under Title VII and agency law. Title VII and Title IX have

a common feature — both prohibit discrimination on the

basis of sex — but the similarity ends there. Title VII was

directed primarily at the private sector; Title IX on the

other hand, applies primarily to public institutions,

which, unlike private employers, must respect rights

® At the time the events in question arose, school district

liability for sexual harassment or sexual abuse under Title IX

was a relatively undeveloped area of the law. Futhermore, only

the Third Circuit, in Stoneking, 882 F.2d at 726, had recognized a

cause of action for sexual abuse against students under Section

1983. Since that time, this area of the law has exploded,

providing school districts with additional guidance and

increasing awareness of sexual harassment as a systemic

problem. See, e.g., Doe v. Claiborne, 106 F.3d at 506; Abeyta v.

Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1255 (10th Cir. 1996);

Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1451 (9th Cir. 1995)

(recognizing that an individual’s substantive due process right

to bodily integrity was much clearer in 1987 than the Title IX

“right” allegedly violated); Doe v. Taylor, 15 F.3d at 454.

established by the United States Constitution.” Further-

more, the language of Title VII specifically mentions

employees as agents, while Title IX contains no such

references. The absence of such language in Title IX

indicates that Congress did not intend for employees to

be part of the Title IX framework.’ School districts should

not, therefore, be held to a constructive notice standard

under Title IX.

b. Applying pure agency principles to Title

IX would create a federal law of respon-

deat superior.

This Court has consistently refused to apply respon-

deat superior in Section 1983 cases because neither the

language of Section 1983 nor the legislative history reflect

7 We realize, of course, that Title IX applies to all types of

educational institutions, but for the purposes of our discussion,

we focus on public institutions.

8 Title VII provides in part, that an “employer” is “a person

engaged in an industry affecting commerce who has fifteen or

more employees . . . and any agent of such a person. (emphasis

added).” 42 U.S.C. § 2000e(b). Title IX contains no parallel

language.

9 In fact, Title VII standards would merely increase the

confusion that already exists with respect to Title IX. See

Faragher v. City of Boca Raton, 111 F.3d 1530, 1535 (11th Cir.), cert.

granted, 118 S.Ct. 1530 (1997) (noting the differing approaches

used in the circuits to determine liability for hostile

environment sexual harassment cases under Title VII and citing

cases); see, also, Jansen v. Packaging Corporation of America, 123

F.3d 490, 492-493 (7th Cir. 1997) (en banc), cert. granted sub nom,

Burlington Industries v. Ellerth, No. 97-569, 66 U.S.L.W. 3490 (Jan.

23, 1998) (expressing its inability to forge a majority position

with regard to evaluating an employer’s liability for sexual

harassment by a supervisory employee).

any intent to create a federal law of respondeat superior.'°

Similarly, neither the language nor the legislative history

of Title IX support the application of agency principles.

Smith, 128 F.3d at 1023-31; Rosa H., 106 F.3d at 654-7.

Moreover, Congress surely never intended for Title IX,

enacted under the Spending Clause, to confer greater

protection, by way of a lower standard of liability, than

Section 1983, which provides a mechanism to redress

rights established by the U.S. Constitution. Finally, to

analyze Title IX violations under a standard lower than

that applied in Section 1983 cases would allow plaintiffs

to recover for similar harm while evading the require-

ments this Court set out in Monell. Applying an actual

knowledge standard in Title IX teacher-student sexual

abuse cases will properly resolve these actions by allow-

ing for consi:tent treatment of governmental entities

regardless of the legal theory used: respondeat superior

will not apply in the case of alleged constitutional viola-

tions, nor will it apply to alleged violations of Title IX.

The actual knowledge standard, therefore, would allow

meritorious Title IX claims to be redressed without allow-

ing evasion (and ultimately, erosion, at least in teacher-

student sexual abuse cases) of the principles set forth in

Monell.

“respondeat superior,” in effect that is the standard they are

trying to impose - making the acts of teachers the responsibility

of the school district. 62 Fed. Reg. at 12039.

5. School districts have no affirmative duty to

prevent constitutional harm under the Four-

teenth Amendment, nor should such a duty

be read into Title IX.

Petitioners assert without citing legal authority that

Title IX imposes a duty upon school districts to protect

students from sexual abuse and ensure a school environ-

ment free of discrimination. Petitioner’s Brief at 16, 23. In

essence, the Office for Civil Rights (OCR) in its Policy

Guidance has also tried to impose such a duty.'! In sup-

port of this position, Petitioners cite Bethel School District

No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159 (1986), an

inapposite case regarding school districts’ authority to

limit students’ free speech rights.!? Bethel did not, con-

trary to Petitioners’ inferences, create a duty to protect,

nor should such a duty be read into Title IX. This Court

has established that the state has a constitutional duty to

protect citizens from harm only in very limited circum-

stances. Deshaney v. Winnebago County Dept. of Social Ser-

vices, 489 U.S. 189, 109 S. Ct. 998 (1989). The lower courts

have been careful to rule within these well-established

limits and have held that compulsory attendance laws do

not create an affirmative duty to protect students while at

school. See, e.g., Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d

1412 (5th Cir. 1997) (en banc); Seamons v. Snow, 84 F.3d at

1236; Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911 (6th

Cir. 1995); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729,

732 (8th Cir. 1993); D.R. by L.R. v. Middle Bucks Area Vo.

1! OCR’s Policy Guidance does not carry the force of

regulation.The Guidance states that its purpose is to provide

information to educational institutions so that they are better

able to identify, prevent, and address sexual harassment. 62 Fed.

Reg. at 12039.

12 The United States, as amicus for petitioners, makes

essentially the same argument. Brief of United States at 23-24.

Tech. School, 972 F.3d 1364, 1368-73 (3d Cir. 1992) (en

banc); J.O. v. Alton Community Unit School Dist. 11, 909

F.2d 267, 272 (7th Cir. 1990). If no affirmative duty to

protect against constitutional injury exists under the

Fourteenth Amendment, should such a duty be inferred

“in Title IX? Neither the statutory language nor its legisla-

tive history support such a conclusion. Title IX confers a

limited benefit: students will not be discriminated against

on the basis of sex by educational institutions. Title IX

does not, however, require that educational institutions

guarantee an environment completely free of any acts of

sexual harassment or abuse. Congress surely did not

intend to require school districts to protect students from

all instances of sexual discrimination when those occur-

rences are unauthorized, unsanctioned, and uncontroll-

able. If it had intended such broad coverage, the language

of the statute would have reflected that intent.

6. A school district should not be liable for a

teacher’s sexually abusive acts simply

because it has not complied with the nomi-

nal terms of the Title IX regulations.

Petitioners contend that a school district should be

strictly liable for sexual harassment or sexual abuse if the

district has not complied with Title IX’s requirement to

adopt a written policy. This approach is unsupported by

sound legal reasoning, public policy rationale, or simple

logic: “failure to adopt a Title IX grievance policy is not

itself an act of discrimination based on sex.” Seamons v.

Snow, 84 F.3d at 1233; see also, Faragher v. City of Boca

Raton, 111 F.3d at 1539, n.11 (finding that the City’s

failure to effectively disseminate sexual harassment pol-

icy was not the reason the City did not know about the

harassment.) Furthermore, it is completely conceivable

that a school district could fail to complete a “Title IX”

policy, yet still have some extremely effective practices

for preventing sexual discrimination and sexual harass-

ment. The absence of a Title IX policy, therefore, should

result in liability only when the lack of such a policy

manifests a deliberate or conscious choice by the school

district to disregard sexual harassment of students by

employees and the lack of a policy is causally connected

to the alleged harm. City of Canton, Ohio v. Harris, 489 U.S.

378, 391, 109 S. Ct. 1197, 1206 (1989). Just as having a

policy that follows Title IX requirements to the letter will

not insulate a school district from liability for money

damages, failure to have such a policy should not, with-

out more, automatically lead to money damages.

A school district’s failure to adopt a Title IX policy

may constitute a minor violation of one of the Depart-

ment of Education’s Title IX regulations. The remedy for

such a minor infraction is found within the Department

of Education’s own regulations. See, 34 C.F.R. § 74.62

(describing enforcement procedures to be used when

recipient fails to comply with terms and conditions of an

award.) The suggestion that money damages should be

the remedy for such noncompliance is unwarranted. Fur-

thermore, if this standard of strict liability were adopted,

Title IX would become one of the most protective statutes

in our country - more protective than the U.S. Constitu-

tion, through section 1983, more protective than any

other statute enacted under the Spending Clause, and

surely more protective than Congress ever intended.

D. An actual knowledge standard of liability pre-

serves the tradition of not awarding punitive

damages against a governmental entity.

Typically, victims of sexual harassment do not suffer

a loss of wealth; while they may suffer emotional or

psychological harm that deserves compensation, the pri-

mary purpose of damages in these cases is to punish the

discriminator, not to compensate the individual. Jansen,

123 F.3d at 510 (noting that victims of sexual harassment

generally do not suffer loss of wealth) (Manion, J. and

Posner, C.J., concurring and dissenting). Under a negli-

gence or vicarious liability standard, however, school

districts and other educational institutions would be pun-

ished for the malicious acts of their employees. This

result would contradict the courts’ tradition of declining

to impose punitive damages on governmental entities.

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 260, 101

S. Ct. 2748, 2756 (1981). We recognize that Title IX dam-

ages are not purely punitive and so do not ask this Court

to reverse its decision in Franklin v. Gwinnett and disallow

monetary damages completely. We do, however, suggest

that limiting monetary damages to cases in which educa-

tional institutions are shown to have actual knowledge,

and thus in some way have taken part in the sexual

harassment, will ensure that damages that are at least

partially punitive in nature are awarded only when

appropriate. The standards Petitioners suggest, on the

other hand, would disregard the common law tradition of

not awarding punitive damages against governmental

entities; it would serve ultimately to punish only the

taxpayers, who took no part in committing the sexual

harassment. City of Newport, 453 U.S. at 267, 101 S. Ct. at

2759.

Of course, damages also serve a deterrent purpose.

There is no reason to believe, however, that the increased

number of damage awards that would inevitably result

from a negligence or vicarious liability standard would

allow school districts to better control misfeasance by

their employees. As this Court has stated, “it is far from

clear that municipal officials, including those at the

policymaking level, would be deterred from wrongdoing

by the knowledge that large punitive awards could be

assessed based on the wealth of their muncipality.” City

of Newport, 453 U.S. at 268, 101 S. Ct. at 2760. The miscon-

duct of teachers, therefore, will not be deterred simply

because their employer faces possibly large monetary

penalties. The real deterrent exists when individuals can

be held liable for the acts of their subordinates, as would

be the case under Section 1983. See, e.g., Doe v. Taylor, 15

F.3d at 454 (establishing test for assessing supervisory

liability in teacher-student sexual abuse cases). Followed

to its logical conclusion, this line of reasoning demands

that damages be awarded against an educational institu-

tion only when the institution knowingly allows sexual

harassment to occur. Actual knowledge, therefore,

emerges as the most appropriate standard to apply in

cases of teacher-student sexual harassment or sexual

abuse brought under Title IX.

Il. Petitioner’s standard of liability would subject

school districts to potentially devastating monetary

damages.

A. The statute itself makes no mention of lia-

bility.

Because the Court determined in Cannon, 441 US.

677, 99 S. Ct. 1946, that Title IX is enforceable through an

implied right of action, the statute “contains no whisper

of liability,” nor any mention of liability, for that matter.

Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 399 (Sth

Cir. 1996). And since it makes no reference to liability,

logically it contains no limits on the award of damages.

While many courts have chosen to analogize Title VII and

Title IX, as discussed earlier, this overly simplistic view is

supported by neither the language of the statutes nor by

any public policy rationale. Although applying Title VII

standards may seem initially attractive, when it comes to

damages, there is an important factor that distinguishes

Title VII from Title IX: Title VII limits the size of damage

awards. Private employers, therefore, may be liable for

discriminatory practices, but the extent of that liability is

limited. Under Title IX, however, there is no such limita-

tion. Just as there is no evidence in the statutory language

that Congress intended to subject school districts to lia-

bility based on the unauthorized acts of employees, it is

equally hard to believe that Congress intended to provide

greater protection to private employers than to the

nation’s public school districts. To accept Petitioners’ pro-

posed standard of liability would subject school districts

to potentially devastating damage awards. Witness the

jury award of $1.4 million awarded against one school

district at the district court level. Leija v. Canutillo Indep.

Sca. Dist., 887 F. Supp. 947, 955 (W.D.Tex. 1995), rev'd, 101

F.3d 393, 399 (5th Cir. 1996). In later reducing the jury

award, the judge recognized that the strict liability he had

imposed had the potential for “massive awards.” In fact,

he stated, “even rich districts would be strapped by a

verdict of $1.4 million.” Jd. at 955. In that particular case,

the already financially poor school district eventually

prevailed on appeal, but the cost of litigating the case

(not to mention fighting another legal battle with the

insurance company over coverage for the costs of defend-

ing the case, Canutillo Indep. Sch. Dist. v. National Union

Fire Insurance Co., 99 F.3d 695 (5th Cir. 1996)) surely

drained that school district's educational funds. Ulti-

mately, our children and our taxpayers pay the price in

the form of higher tax bills and fewer resources for public

education. As one court has recognized: “[t)here is no

sound policy reason to hold a school district financially

accountable, through strict liability, for the criminal acts

of its teachers. . . . As horrible a crime as child abuse is,

we do not live in a risk-free society; it contorts “public

policy” to suggest that communities should be held finan-

cially responsible in this manner (strict liability) for such

criminal acts of teachers.” Canutillo, 101 F.3d at 399.

School districts find sexual harassment and sexual abuse

as reprehensible as do Petitioners. But the standard Peti-

tioners propose, and the remedy they seek, will Only

harm students who will lose the full benefits of already

limited educational budgets.

B. An actual knowledge standard would not dis-

courage meritorious actions; however, it would

help prevent the onslaught of claims that a

lower standard would undoubtedly provoke.

Franklin v. Gwinnett spawned hundreds of lawsuits

against school districts alleging sexual harassment and/

or sexual abuse. In Texas alone, for example, and looking

only to those cases that have been reported or otherwise

brought to our attention, more than 20" court actions

have been filed against school districts alleging violations

of Title IX. *Marsh v. Dallas Indep. Sch. Dist.,.129 F.3d 612

(Sth Cir. 1997) (unreported opinion); *Doe v. Hillsboro

Indep. Sch. Dist., 113 F.3d 1412; *Doe v. Lago Vista Indep.

Sch. Dist., 106 F.3d 1223 (5th Cir. 1997); *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; *Bowles v.

Floresville Indep. Sch. Dist., 84 F.3d 432 (5th Cir. 1996)

(unreported opinion); *“Rowinsky v. Bryan Indep. Sch. Dist.,

80 F.3d 1006 (5th Cir.), cert. denied, 117 S. Ct. 165 (1996);

'S This estimate does not include currently pending cases,

nor does it include all unreported decisions or those that may

have been settled or otherwise disposed of prior to final

adjudication.

Doe v. Taylor, 15 F.3d 443 (5th Cir. 1994); Piwonka v. Tide-

haven, 961 F. Supp. 169 (S.D. Tex. 1997); *Doe v. Bridgeport

Indep. Sch. Dist., No. Civ. A. 3: 94-CV-1889D, 1997 WL

279142 (N.D. Tex. May 14, 1997) (unreported opinion);

Doe v. Bridgeport Indep. Sch. Dist., Civ. A. No. 3: 94-

CV-1889D, 1996 WL 734949 (N.D. Tex. Dec. 11, 1996)

(unreported opinion); /.W. v. Bryan Indep. Sch. Dist., No.

H-93-3790 (S.D. Tex. 1995) (unpublished order); Garza v.

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

1994).'* Multiplying the Texas estimate by the 50 states

results in a conservative estimate of the number of cases

brought under Title IX in the five years since Gwinnett

was decided. Adopting the liberal standard advanced by

Petitioners would do little to stop sexual harassment but

would definitely encourage more lawsuits against school

districts. These lawsuits, regardless of their merit, must

be defended —- an activity that not only consumes scarce

school district dollars but also takes educators away from

their educational duties. Public school students thus suf-

fer twice — in the form of reduced funding for educational

programs and in the form of less time with their valued

educators. The threat of litigation is already very real;

adopting a standard based on actual knowledge will

ensure that school districts comply with Title IX but are

not continually defending lawsuits. We respectfully

request, therefore, that the Court narrow its holding in

Franklin to require actual knowledge before monetary

damages will be available.

By narrowing the scope of Franklin to allow money

damages only when the district itself has actual knowl-

edge of sexual discrimination, this Court will do a great

service to this country’s students, its school districts, and

4 *For brevity’s sake, we cite only the most recent,

appellate disposition of these cases.

its taxpayers. Furthermore, it will ensure that school dis-

tricts themselves do not become insurers against sexual

abuse: “Strict liability converts the school district from

being the educator of children into their insurer as well.

And, if it is their insurer, it is most arguable that its role

as educator —- needed now more than ever — will suffer,

and suffer most greatly.” Canutillo, 101 F.3d at 400. From a

public policy perspective, therefore, vicarious liability

would exact a substantial toll on the nation’s public

schools.

C. Despite their best efforts, school districts can-

not guarantee that sexual abuse will not occur.

As some astute courts have recognized, despite the

best efforts of school districts, there is no way to guaran-

tee that sexual abuse will never occur.'5 And as Peti-

tioners so aptly point out, sexual abuse is, by its very

nature, illicit, hidden, difficult to detect. Often, both par-

ties to a sexual relationship — the teacher and the student

- vehemently deny any suggestion of such a relationship.

School districts do screen and monitor their employees.

School officials also regularly seek and receive training

'S In Jansen v. Packaging Corporation of America, 123 F.3d at

511, the en banc court struggled to define an employer's liability

under Title VII for both quid pro quo and hostile environment

harassment. In a concurring and dissenting opinion, Chief

Judge Posner and Judge Manion pointed out that strict liability

would not promote the goal of deterring sexual harassment, as

it would require an employer to go to “extreme expense and

greatly [curtail] the privacy of its employees, as by putting them

under continuous video surveillance. . . . [A] law that requires

the employer to do more than is feasible to control harassment

will impose costs without creating deterrent benefits.”

Moreover, under a strict liability standard, employers might just

rather pay the occasional judgment to incurring costs arising

from attempts to prevent sexual harassment.

on addressing and preventing sexual harassment. But the

inherent unpredictability of human nature makes it

impossible to predict with perfect accuracy which

quently, Petitioners’ proposed standard of liability will do

little more than increase the number of claims against

school districts; it will not, on the other hand, enable

school districts to prevent or eliminate sexual harassment

by school district employees. In this case, Petitioners

suggest that the school district could have prevented

Gebser’s harm, but they present no evidence that Frank

Waldrop had any criminal background or other history

that would have alerted Lago Vista ISD to the possibility

that he would engage in sexual relations with a minor

student. Petitioners suggest that Waldrop’s “inappropri-

ate comments” should have provided sufficient notice to

the district, but what would they suggest the district

should have done? The principal responded by question-

ing Waldrop about these comments and directed him to

refrain from using such language in the future. Real-

istically, there was little more that could have been done

at that time. Furthermore, it is often difficult to obtain

‘6 Although examining a Title VII cause of action, the 7th

Circuit recently struggled with establishing a standard for

employer liability and recognized that employers simply cannot

eliminate sexual harassment entirely: “It is facile to suggest that

employers are quite capable of monitoring a supervisor's

actions affecting the work environment. Large companies have

thousands of supervisory employees. Are they all to be put

under video surveillance? Subjected to periodic lie-detector

tests? Trailed on business trips by company spies?” Jansen, 123

F.3d at 513 (Manion, J. and Posner, C.J., concurring and

dissenting). And by the way, who is watching the person

watching the surveillance monitor?

complete and accurate histories of teachers’ past perfor-

mance.'” Petitioners ignore the reality of operating a

school district: teachers (such as the one involved in this

case) are employees with contractual, statutory, and con-

stitutional rights. In many situations, especially in ones

similar to the present case, a school district's figurative

hands are tied — with such a minor infraction, it has no

basis for any permanent disciplinary action. Could a few

“inappropriate comments,” which did not even rise to the

level of profanity, constitute the “good cause” necessary

to terminate a contractual employee? Not before a Texas

hearing examiner, and probably not anywhere else in the

United States.

Despite the fact that some instances of sexual abuse

may be impossible to discover before it is too late, school

districts constantly battle all forms of sex discrimination.

To that end, numerous trainings, seminars, and in-ser-

vices are conducted every year in an attempt to help

school districts recognize, address, and prevent sexual

harassment. In fact, training in recognizing and prevent-

ing sexual harassment and sexual abuse is the most

requested training topic in Texas school districts and is

certainly a “required course” for school officials through-

out the country. The concerned professionals who direct

the nation’s school districts do not need a higher stan-

dard of liability to heighten their awareness of and inter-

est in eliminating sexual abuse and harassment.

Finally, it is important to emphasize that Petitioners’

standard of liability would do little to increase protection

of students from sexual harassment; it would only

'7 In Texas, for example, evaluations of teacher

performance are confidential. Tex. Epuc. Cope ANn. § 21.355

(Vernon 1996). Furthermore, the fear of defamation claims often

inhibits past employers from providing accurate references.

increase the amount of financial rewards they would

receive if victimized. An actual knowledge standard may,

on the other hand, further attempts to minimize the

occurrence of sexual harassment. A school district can act

to stop harassment or abuse only after it is aware of the

harassment or abuse: “[R]Jequiring knowledge by the

school district . . . as a condition to recovery of damages

will result in much quicker and greater protection not

only to the person being abused and providing notice, or

on whose behalf it is given, but will also better protect or

otherwise benefit those who may then be undergoing

abuse from that, or another teacher.” Canutillo, 101 F.3d at

399. School districts do their best, and will keep doing

their best, no matter the standard of liability. A standard

like Petitioners propose will do little to eliminate sexual

discrimination in schools. In fact, it would only exacer-

bate the financial difficulties already facing school dis-

tricts across the nation. The cost of defending Title IX

lawsuits would easily exceed the funding Congress

sought to provide educational institutions by enacting

Title IX in the first place. If strict liability or constructive

notice were the rule, would school districts really have

any incentive to try to prevent sexual harassment? In a

moral sense, yes, they would continue to persevere. But

in the legal sense, even their best efforts would not

reduce their exposure to liability.

CONCLUSION

Petitioners are looking at Title IX in a vacumn. It is

not the only means of preventing sexual harassment, nor

is it the only means of obtaining a remedy for sexual

harassment. In addition to state laws, the Constitution

protects schoolchildren’s right to be free from sexual

abuse by a schoolteacher. And while standards for impos-

ing constitutional liability are higher than the standard

Petitioners seek to impose, a standard at least as high as

that used to assess constitutional liability would ensure

that governmental entities, such as school districts, will

not be subject to devastating damage awards for

unauthorized, unknown acts of their employees. If

increasing the number of damage awards would help

increase school districts’ ability to prevent sexual harass-

ment or would provide some meaningful incentive to

fortify prevention efforts, then perhaps such a measure

would be warranted. But unfortunately, despite school

officials’ best efforts, sexual harassment and abuse will

continue to occur, to some extent, no matter what steps

are taken — such is the nature of the human condition

Requiring actual knowledge ensures that it is the acts of

the educational institution, not the unauthorized acts of

its employees, that result in liability. Not only is the

actual knowledge standard supported by the language of

litle IX, it is also supported by public policy and would

align school district liability under Title IX with the stan

dard for liability under Section 1983 for the very same

harm

Respectfully submitted,

CAROLYN M. HANAHAN

Counsel of Record

TASB LeGat AssIsTANC!

Texas Association of

School Boards,

Texas Association of School

Administrators, &

Texas Council of School Attorneys

7703 N. Lamar Blvd.

Austin, Texas 78763

(512) 467-3610

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.