Amicus Curiae Brief — Davis v. Monroe County Bd. of Ed.

No. 97-843 Supreme Court, U.S.

Supreme Court of the H

OCTOBER TERM, 1998

adie

AURELIA DAVIS, as next friend of La@SHONDA D.,

Petitioner,

—V,.—-

MONROE COUNTY BOARD OF EDUCATION, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION AND THE ACLU OF GEORGIA

IN SUPPORT OF PETITIONER

Sara L. Mandelbaum

(Counsel of Record)

Karen R. Marks

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

3)

TABLE OF CONTENTS

|

ant | |

< a ive

ee Pee gegen |

ge, ee oh ee . SECTION 5 OF THE FOURTEENTH

Herat AMENDMENT PROVIDES AN INDE-

pine PENDENT SOURCE OF CONSTITU-

Of Title IX Are Fully Consistent With

The Broad Antidiscrimination Goals

Of Section 5 And The Equal Protec-

The Legislative History Of Title IX

Reinforces The Conclusion That Con-

gress Was Acting Pursuant To Section

PS ay oe

eS

-*

sie ahd ee eat . THIS COURT HAS NEVER REQUIRED

ANTIDISCRIMINATION LAWS EN-

ACTED PURSUANT TO SECTION 5 TO

DETAIL EVERY FORM OF PROHIB-

ITED DISCRIMINATION

CONCLUSION

’ 7 4 mt

aa At

TIONAL AUTHORITY FOR TITLE IX ....

TABLE OF AUTHORITIES

Page

Cases

Atascadero State Hosp. v. Scanlon,

ray ey 13

Bundy v. Jackson,

ee GUE, EUNED Oliv k ev avec eens 16

Cannon v. University of Chicago,

or ae oc wee see ot 9, 10, 12, 18

Cariddi v. Kansas City Chiefs

Football Club,

ET I, Os en kc wine cwece ws 16

City of Boerne v. Flores,

GE Sy ek ie Se lyk t) 1) 7,9, 14

Compston v. Borden, Inc..,

424 F.Supp. 157 (S.D. Ohio 1976) ............... 16

Crawford v. Davis,

2 we EF ee is ee 6, 7, 10

Doe v. University of Illinois,

ID sli at sgh 460d 4% wg orn 7, 10

EEOC vy. Elrod,

es 6

EEOC v. Wyoming,

GES SSR eee nat a a 6

Ex parte Virginia,

i ee Cue 9

Firefighters Institute for Racial

Equality v. St. Louis,

549 F.2d 506 (8th Cir.),

cert. denied, 434 U.S. 819 (1977) ................ 16

li

Page

Fitzpatrick v. Bitzer,

EE be een eee) 13

Franklin v. Gwinnett County Pub. School,

EE frre chins 0 pike) wen oo ow Oe eos 9, 10

Franks v. Kentucky School

for the Deaf,

See Ue L,I gc octevesseeeeeedveens 7

Gebser v. Lago Vista Indep. School Dist.,

524 U.S. _, 118 S.Ct. 1989 (1998) ...... 3, 10, 18, 19

Gray v. Greyhound Lines, East,

Re yg ed a rr Serre 16

Griggs v. Duke Power Co.,

401 U.S. 424 (1971) ....... Ptr te kek eee + oe 17

Harris v. Forklift Systems, Inc.,

i a aie ae eA a es bh odie 15, 19

Heart of Atlanta, Inc. v. United States,

es he as es oa eae 5, 6

Henson v. Dundee,

ee sk sb se eee ode Sled 16

Katz v. Dole,

rr no lb i lacdiee gine wl 16

Los Angeles Dep't of Water

and Power v. Manhart,

ME as Pillai aa sis o one ot be kw ces 15

Meritor Savings Bank, FSB v. Vinson,

of | % 2) er reer 14, 15, 16, 18, 19

Mississippi Univ. for Women v. Hogan,

EE I as athe Brad de bike & 048 w 8 8

Page

North Haven Bd. of Educ. v. Bell,

Ge US, Faas Cees oak tre fab wee PGS Pe he 18

Pennhurst State School and Hospital

v. Halderman,

Spe ee SED 4 Gb ok dob kek cha eke 11,17

Reed v. Reed.

Ge Gas FE GON GOD oe v's Dae ke bed TEE 8

Rogers v. EEOC,

Ge Fae ae ee Ge TED ik Fe ea dae cee 15, 16

Rowinsky v. Bryan Indep. School Dist.,

80 F.3d 1006 (Sth Cir.),

cert. denied, __U.S. _.,

SEF emi Bee HOUND | io hearse « Ss ices bie weal ane 7

Seminole Tribe of Florida v. Florida,

iA @ 2 RENO Ae ee eee te nek 10

United States v. Price.

Pet We: Ne CN os cikS sae ds ox halite ete 18

United States v. Virginia,

See Ua, Do kb dik a bie a ee Se ee ee s

Zabkowicz v. West Bend Co..

589 F.Supp. 780 (E.D.Wis. 1984) ................ 16

Statutes and Regulations

Age Discrimination in Employment Act,

a Us Ge Ee ae ws ch Ca ea 6

Civil Rights Attorneys’ Fees

Awards Act of 1976,

ee Re net ee eee cree

iV

Page

Civil Rights Remedies Equalization

Act Amendment,

42 U.S.C. §2000d-7 (1994) .............. 10, 12, 13

Developmentally Disabled Assistance

and Bill of Rights Act of 1975,

as EE a 68 Eis SSS Sek Mow ites 11

Education Amendments of 1972 (Title IX),

Pub.L.No. 92-318, 86 Stat. 235

(1972)(codified as amended at

20 U.S.C. §§1681-1688 (1994) ............... passim

Se De, SNE ass 0p 6 6060'S eee hs 15

Legislative History

"Discrimination Against Women: Hearings

on Section 805 of H.R. 16098 before the

Special Committee on Education of the

House Committee on Education and Labor."

91st Cong., 2d Sess. (1970) ......... 75, areata Fe 1.

118 Cong.Rec. 5803 (1972) ................002- 10

122 Cong.Rec. 31472 (1976) ...............000- 12

ee ieee OO ee es 12

593 Cameinn, SO (00OM « . sc oc ck cinccccccsss 13

S.Rep.No. 1011, 94th Cong., 2d Sess..,

reprinted in 1976 U.S. Code

ns ee ny I I i oe ae 11

INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to preserving the principles of

liberty and equality embodied in the Constitution and this

nation’s civil rights laws. The ACLU of Georgia is one of

its statewide affiliates. In 1971, the ACLU established its

Women’s Rights Project, which has been at the forefront of

the battle for women’s equality in schools and elsewhere for

the past three decades. The proper interpretation of Title IX

is therefore a matter of great concern to the ACLU and its

members. The ACLU has appeared before this Court on

numerous occasions, both as direct counsel and as amicus

curiae.

STATEMENT-OF THE CASE

LaShonda Davis was in the fifth grade at Hubbard Ele-

mentary School when she first complained to her teachers

that the classmate assigned to the seat next to her was sex-

ually harassing her. The harassment took various forms, in-

cluding offensive language, fondling, and sexual abuse, and

recurred repeatedly over the course of five months. On nu-

merous occasions, LaShonda and her mother, Aurelia Davis,

reported the conduct to her teachers and to the school prin-

cipal. Despite her repeated calls for intervention, school of-

ficials provided LaShonda with no protection other than

granting her request for a different seat assignment -- and

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

even that minimal action was not taken until LaShonda had

complained of the student’s harmful conduct for three

months. After the school failed to discipline the student

who harassed LaShonda, despite the increasingly harmful ef-

fects of the conduct on LaShonda, Mrs. Davis finally re-

ported the conduct to the Sheriff's office. The harassing

student was ultimately charged with sexual battery, a charge

which he did not deny.

Petitioner then brought an action alleging that the

school board and two school officials had violated section

901 of the Education Amendments of 1972, Pub.L.No 92-

318, 86 Stat. 235, 373 (1972)\(codified as amended at 20

U.S.C. §§1681-1688 (1994))("Title IX"), and 42 U.S.C.

§1983, by failing to prevent the sexual harassment.

The district court granted defendants’ motion to dismiss

for failure to state a claim upon which relief could be

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

Supp. 363, 368 (M.D.Ga. 1994). On appeal, a panel of the

Eleventh Circuit reinstated petitioner's Title IX claim,

holding that Title IX embraces claims of peer harassment in

school, just as Title VII embraces claims of peer harassment

in the workplace. Davis v. Monroe County Bd. of Educ., 74

F.3d 1186, 1193-95 (11th Cir. 1996). The panel decision

was then reversed by the Eleventh Circuit en banc. The en

banc court justified its narrow construction of the statute by

noting that Title IX was passed under the Spending Clause,

without considering whether Congress also had enacted Title

IX pursuant to Section 5 of the Fourteenth Amendment.

120 F.3d 1390, 1397 (11th Cir. 1997).

SUMMARY OF ARGUMENT

The Eleventh Circuit's narrow construction of Title IX

rests squarely on its holding that Congress enacted Title IX

pursuant to its Spending Clause powers. As petitioner's

tl

brief demonstrates, the Eleventh Circuit's reasoning is

flawed even on its own terms.

This brief addresses a separate but equally fundamental

error: while we agree that Title [IX was enacted pursuant to

the Spending Clause, we do not believe that the Spending

Claus provided the only source of constitutional authority.

Contrary to the court below, we believe it is clear from the

text and legislative history that Title IX was also adopted

pursuant to Section 5 of the Fourteenth Amendment, which

grants Congress broad powers to enforce the Equal Protec-

tion Clause.

The unambiguous purpose of Title IX is to prohibit sex

discrimination in federally funded education programs. It

was enacted in response to what Congress perceived as a

pervasive and ongoing problem in schools across the coun-

try. As a device for ensuring compliance with its remedial

mandates, Title IX conditions the continued receipt of feder-

al education funds on a school’s agreement not to discrimi-

nate on the basis of sex.

Title [IX uses monetary sanctions as a lever to protect

substantive rights. While no doubt derived in part from

Congress’ power under the Spending Clause of Article I,

Title IX simultaneously draws from Congress’ power to en-

force the substantive guarantees of the Equal Protection

Clause of the Fourteenth Amendment. Both at the time

Title IX was first passed, as well as in subsequent amend-

ments, Congress left little doubt that its object in enacting

Title IX was to secure equal protection for women in the

educational process.

Given Title [X’s remedial goals, it can and should be

interpreted using the same principles of statutory construc-

tion that the Court has applied to other Section 5 legislation.

Specifically, it is important to distinguish between knowl-

edge of the facts and knowledge of the law. After Gebser

v. Lago Vista Indep. School Dist., 524 U.S. __, 118 S.Ct.

1989 (1998), it may be necessary to prove that defendants

had actual knowledge that particular discriminatory acts oc-

curred before they can be held liable for damages. But it

does not follow that when, as here, defendants were fully

aware of the underlying conduct, they can escape liability by

claiming ignorance that the conduct was prohibited under

law.

This Court has never required Congress to spell out

every form that discrimination might take when it enacts a

civil rights statute. Moreover, any such holding would seri-

ously eviscerate Congress’ broad remedial powers under

Section 5. Consistent with that principle, amici respectfully

submit that the Eleventh Circuit’s holding that student-to-

student sexual harassment claims are never actionable under

Title IX cannot be sustained. To the contrary, such claims

fit easily within the broad prohibitory language of Title IX.

ARGUMENT

I. SECTION 5 OF THE FOURTEENTH AMEND-

MENT PROVIDES AN 4AINDEPENDENT

SOURCE OF CONSTITUTIONAL AUTHOR-

ITY FOR TITLE IX

In resolving this case in favor of the school board, the

Eleventh Circuit held (based on a discussion contained en-

tirely in a single footnote) that Congress enacted Title IX

solely pursuant to its authority under the Spending Clause.

Beginning with that premise, the Eleventh Circuit then ap-

plied contract law principles to the interpretation of Title IX

and concluded that student-to-student harassment is not pro-

hibited by the statute, notwithstanding its broadly worded

ban against sexual discrimination in federally funded educa-

tion programs.

a ae ee te

Largely for reasons set forth in petitioner’s brief, amici

believe that the decision below must be reversed even under

current Spending Clause jurisprudence. Amici also believe.

however, that the Eleventh Circuit erred in failing to recog-

nize that Section 5 of the Fourteenth Amendment provides

an independent source of constitutional authority for Title

IX. The purpose, scope, and legislative history of Title [X

make it clear, in our view, that Congress saw Title IX as

more than a condition on federal funding; it saw it as a

means of enforcing the core principles of equality embodied

in the Equal Protection Clause.

A. Congress May, And Often Does, Act Pursu-

ant To More Than One Source Of Constitu-

tional Authority When Adopting Legislation

The Eleventh Circuit appeared to assume that it was

under some obligation to choose between the Spending

Clause and Section 5 as the proper constitutional basis for

Title IX. Nothing in the Constitution or this Court’s cases.

however, requires that choice. To the contrary, the notion

that a particular congressional statute may rest on more than

one source of constitutional authority is hardly a novel one.

especially in the civil rights context.

For example, this Court’s decision upholding the consti-

tutionality of the 1964 Civil Rights Act in Heart of Atlanta,

Inc. v. United States, 379 U.S. 241, 249 (1964), expressly

noted that "Congress based the Act on Section 5 and the

Equal Protection Clause of the Fourteenth Amendment as

well as its power to regulate interstate commerce... ."_ Be-

cause of its conclusion that the Commerce Clause provided

adequate authority for the public accommodations provisions

of the 1964 Act, the majority found it unnecessary to reach

the Fourteenth Amendment issues. /d. at 279 (Black. J..

concurring). But two separate concurrences nonetheless

concluded that Congress had properly invoked its Section 5

wa

powers. Jd. at 280 (Douglas, J., concurring); id. at 293

(Goldberg, J., concurring). Of particular note for present

purposes, no member of the Court challenged Justice Gold-

berg’s observation that Congress could rely on what he de-

scribed as "dual" support for its civil rights statutes. Ja. at

292 n.1.

It is not surprising, therefore, that in rejecting a consti-

tutional challenge to the 1974 amendment to the Age Dis-

crimination in Employment Act (ADEA), 29 U.S.C. §§621-

624 (1967), the Seventh Circuit referred to "the familiar pat-

tern of contemporary civil rights acts in grounding prohibi-

tions against private parties in the Commerce Clause, while

reaching government conduct by the more direct route of the

Fourteenth Amendment." EEOC v. Elrod, 674 F.2d 601,

604 (7th Cir. 1982).

Moreover, the question of whether Congress acted pur-

suant to its Section 5 authority does not depend on a specif-

ic reference in the statutory text itself or even in the legisla-

tive history. As this Court noted in an analogous context,

"Congress need not [have] recite[d] the words *§5’ or ‘Four-

teenth Amendment’ or ‘equal protection." EEOC v. Wy-

oming, 460 U.S. 226, 243-44 n.18 (1983)(holding that be-

cause Title VII was enacted pursuant to Section 5 it over-

rides any Eleventh Amendment claim by the states). Rather,

the question is whether Congress, "as an objective matter,”

had the constitutional authority to act pursuant to its power

to enforce the Equal Protection Clause. Crawford v. Davis,

109 F.3d 1281, 1283 (8th Cir. 1997). Here, this standard is

easily met because Section 5 of the Fourteenth Amendment

grants Congress the authority to enforce the substantive

guarantees of the Fourteenth Amendment and Title IX is

plainly within the ambit of that enforcement authority.

Applying these principles, the majority of courts to ad-

dress the question have had little difficulty concluding that

the constitutional roots of Title IX lie in Section 5 of the

Fourteenth Amendment as well as the Spending Clause.

See, e.g, Doe v. University of Illinois, 138 F.3d 653 (7th

Cir.), petition for cert. filed, 67 U.S.L.W. 3083 (July 13,

1998)(No. 98-126)(prohibiting "arbitrary, discriminatory

conduct ... is the very essence of the guarantee of ‘equal

protection of the laws’ of the Fourteenth Amendment")(in-

ternal citations omitted); Crawford v. Davis, 109 F.3d at

1283 ("we are unable to understand how a statute [Title [X]

enacted specifically to combat [gender] discrimination could

fall outside the authority granted to Congress by Section 5");

Franks v. Kentucky School for the Deaf. 142 F.3d 360 (6th

Cir. 1998)(same). But see Rowinsky v. Bryan Indep. School

Dist., 80 F.3d 1006, 1013 n.14 (5th Cir.), cert. denied, _

U.S. __, 117 S.Ct. 165 (1996).?

* In rejecting a Section 5 basis for Title IX, the court below merely

noted that the prohibitions contained in Title IX extend beyond the state

actors reached by the Fourteenth Amendment. Davis, 120 F.3d at 1398

n.12. But see District of Columbia v. Carter, 409 U.S. 418, 423-24 &

n.8 (1973\that "“[t}he Fourteenth Amendment itself ‘erects no shield

against merely private conduct’ . . . is not to say . . . that Congress may

not proscribe purely private conduct under Section 5 of the Fourteenth

Amendment); Katzenbach v. Morgan, 384 U.S. 641, 648 (1966)(Section

5 permits Congress to regulate conduct beyond what Section | prohib-

its); United States v. Guest, 383 U.S. 745, 762 (1966)(Clark, J., con-

curring, joined by Black and Fortas, JJ.)("there can be no doubt” that

Congress can regulate private conduct under Section 5); City of Boerne

v. Flores, 521 U.S. __, 117 S.Ct. 2157 (1997), citing with approval prior

precedent refusing to limit Congress’ Section 5 powers to conduct that

violates Section 1, but holding that Section 5 legislation must be de-

signed in part to remedy such discrimination. However, even if enforce-

ment legislation enacted pursuant to Section 5 were bound by a similar

State action requirement, the Eleventh Circuit's observation has little

relevance to this case, which involves only governmental defendants.

7

B. The Purposes And Remedial Structure Of

Title IX Are Fully Consistent With The

‘Broad Antidiscrimination Goals Of Section 5

And The Equal Protection Clause

Title IX guarantees that "[n]o person in the United

States shall, on the basis of sex, be excluded from participa-

tion in, be denied the benefits or, or be subjected to discrim-

ination under any educational program or activity receiving

Federal financial assistance." 20 U.S.C. §1681. Respon-

dents do not and cannot deny that they are covered by the

terms of Title IX. It is equally too late in the day to dispute

that "neither federal nor state government acts compatibly

with the equal protection principle when a law or official

policy denies to women, simply because they are women,

full citizenship stature -- equal opportunity to aspire,

achieve, participate in and contribute to society based on

their individual talents and capacities." United States v. Vir-

ginia, 518 U.S. 515, 532 (1996)(holding that the Equal Pro-

tection Clause prohibits a state-funded educational institution

from discriminating against students on the basis of their sex

absent an "exceedingly persuasive justification"); Mississippi

Univ. for Women v. Hogan, 458 U.S. 718 (1982)(same);

Reed v. Reed, 404 U.S. 71 (1971)(holding that sex-based

classifications violate the Equal Protection Clause of the

Fourteenth Amendment).

Thus, the purposes of Title IX and the purposes of the

Equal Protection Clause are entirely congruent, at least in

cases like this where Title IX is invoked against public offi-

cials operating federally funded programs. In such cases,

Title IX is simply one means of enforcing the equality guar-

antees of the Fourteenth Amendment. Viewed in these

terms, it fits comfortably within the scope of congressional

authority conferred by Section 5, which this Court has ex-

pansively and deferentially construed for more than a

century.

Whatever legislation is appropriate, that is,

adapted to carry out the objects the amend-

ments have in view, whatever tends to enforce

submission to the prohibitions they contain,

and to secure to all persons the enjoyment and

perfect equality of civil rights and the equal

protection of the laws against State denial or

invasion, if not prohibited, is brought within

the domain of congressional powers.

Ex parte Virginia, 100 U.S. 339, 345-46 (1879), quoted with

approval in City of Boerne v. Flores, 117 S.Ct. at 2163.

There is little doubt that Title IX is well "adapted to

carry out” the antidiscrimination goals of the Fourteenth

Amendment. To be sure, the threat of a federal fund cut-off

serves the purposes of the Spending Clause by ensuring that

federal money is spent for’its intended purposes and not

used to promote discrimination. But by discouraging dis-

crimination, the threat of a federal fund cut-off also pro-

motes the purposes of the Equal Protection Clause.

In addition, this Court has recognized that Title IX can

be enforced by a private right of action, Cannon v. Universi-

ty of Chicago, 441 U.S. 677 (1979), and that an injured

plaintiff can recover monetary damages under Title IX,

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

(1979). Thus, federal funds may be the trigger for Title IX,

but the loss of federal funds is not the only remedy. As this

Court explained in Cannon, the existence of these two reme-

dial alternatives is critical to understanding Title IX.

First, Congress wanted to avoid the use of fed-

eral resources to support discriminatory prac-

tices; second, it wanted to provide individual

citizens effective protections against those prac-

tices. Both of these purposes were repeatedly

identified in the debates... ."

441 U.S. at 704. Even if the first purpose could be de-

scribed as more closely aligned with the Spending Clause,

the second purpose just as clearly reflects the antidiscrimina-

tion goals of the Fourteenth Amendment.’

C. The Legislative History Of Title IX Rein-

forces The Conclusion That Congress Was

Acting Pursuant To Section 5

Although Congress did not expressly refer to the source

of its constitutional authority when enacting Title IX, the

legislative record is replete with references to the pervasive

discrimination against women in education. In the words of

Senator Bayh: "It is clear to me that sex discrimination

reaches into all facets of education -- admission, scholarship

programs, faculty hiring and promotion, professional staffing

and pay scales." 118 Cong.Rec. 5803 (1972). See also

* Last Term, in Gebser v. Lago Vista Independent School Dist, \\8

S.Ct. at 1998, the Court described Title IX as a form of Spending

Clause legislation. See also Franklin, 503 U.S. 75 n.8 ("[We need not

decide which power Congress utilized in enacting Title IX"). Neither

petitioner nor amici have ever contested that point. But, for reasons

stated above, it does not follow that Congress was not also acting pursu-

ant to its Section 5 powers. In fact, insofar as Gebser assumed that

Congress abrogated the states’ Eleventh Amendment immunity in Title

IX claims, 118 S.Ct.-at 1996, the Court must also have assumed that

Title IX was enacted under Section 5. See Seminole Tribe of Florida v

Florida, 517 U.S. 44 (1996). Indeed, after this Court's decision in Sem-

inole Tribe, numerous courts have continued to uphold damages claims

against governmental defendants under Title IX based on their under-

standing that Title IX is a valid exercise of Congress’ Section $ powers.

See Doe, 138 F.3d at 657 ("Title IX and the Equalization Act (CRREA)

read together, unequivocally state Congress’ intent to abrogate the

States’ Eleventh Amendment immunity"), Crawford, 109 F.3d at 1283

("Congress has unequivocally expressed its intent to abrogate the States’

Eleventh Amendment immunity for Title IX claims”).

10

"Discrimination Against Women: Hearings on Section 805

of H.R. 16098 before the Special Committee on Education

of the House Committee on Education and Labor,” 91st

Cong., 2d Sess. (1970). This concern with discrimination

speaks in the language of the Fourteenth Amendment even

if the Fourteenth Amendment was not specifically invoked,

and should be sufficient at least to create a presumption that

Congress was acting pursuant to its Section 5 powers.’

Furthermore, it is perfectly clear from the subsequent

legislative history that Congress thought it was acting under

Section 5 when it adopted Title IX. Thus, only four years

later, Congress enacted the Civil Rights Attorneys’ Fees

Awards Act of 1976, 42 U.S.C. §1988, which provides at-

torneys’ fees to successful civil rights plaintiffs. Section

1988 authorizes the disbursement of attorneys’ fees to pre-

vailing parties in actions to enforce a series of civil rights

statutes, including Title IX. The legislative history plainly

establishes that Congress acted pursuant to the Fourteenth

Amendment when enacting $1988:

Fee awards are therefore provided in cases cov-

ered by [$1988] in accordance with Congress’

power under, inter alia, the Fourteenth Amend-

ment, Section 5.

S.Rep.No. 1011 at 5, 94th Cong. 2d Sess. 5. reprinted in

1976 U.S. Code Cong. & Admin. News 5913.

* Nothing in Pennhurst State School and Hospital v. Halderman, 451

U.S. 1 (1981), undermines the strength of this inference. The question

in Pennhurst was whether the provisions of the Developmentally Dis-

abled Assistance and Bill of Rights Act of 1975, 42 U.S.C. §§6000-

6083, were enforceable against the states through an implied right of ac-

tion. The Court held that they were not, in part because of the Court's

reluctance to impose new financial obligations on the states that Con-

gress had not expressly authorized. That concern does not apply in this

case, however, because the Court has already held that Title IX can be

enforced by a private damages action.

ll

Standing alone, §1988 does not create any rights. In-

stead, §1988 derives its authority from the underlying

statutes that it is designed to enforce. In this case, the

logical inference is that §1988 and Title IX are both

grounded in the Fourteenth Amendment. And, indeed, this

Court recognized as much in Cannon, when it relied on the

legislative history of §1988 to buttress its description of

Title IX as part of “the civil rights enforcement scheme’

that successive Congresses have enacted over the past 110

years" to “enforce the Fourteenth Amendment by elimi-

nating discrimination.” 44] U.S. at 686 n.7, quoting 122

Cong.Rec. 31472 (1976)(remarks of Sen. Kennedy).

Even more persuasively, when Congress strengthened

the enforcement mechanisms under Title IX by enacting the

Civil Rights Remedies Equalization Act Amendment

(CRREA), 42 U.S.C. §2000d-7 (1994), it explicitly invoked

its authority under both Section 5 and the Spending Clause.

Senator Cranston, who was the legislative sponsor of

CRREA, specifically noted:

Congress has the authority to waive the States’

Eleventh Amendment immunity under . . . the

spending clause and section 5 of the Fourteenth

Amendment. [T]his legislation is clearly au-

thorized by [these] two provisions.

131 Cong.Rec. 22, 346 (1985). The Justice Department ex-

pressed a similar view in its official statement on CRREA:

Thus, to the extent that the proposed amend-

ment is grounded on congressional powers

under section five of the fourteenth amend-

’ Here, as in Cannon, the Court would be “remiss if it ignored these au-

thoritative expressions concerning the scope and purposes of Title IX.”

441 US. at 686 n.7.

12

ment, S. 1579 makes Congress’ intention “un-

mistakably clear in the language of the statute"

to subject states to the jurisdiction of the fed-

eral courts.

132 Cong.Rec. 28, 624 (1986)(letter from Assistant Attorney

General John R. Bolton to Senator Orrin Hatch).°

The legislative history detailing CRREA’s enactment is

as definitive as the legislative history relied upon by the

Court when holding that Title VII was enacted pursuant to

Section 5. Fitzpatrick v. Bitzer, 427 U.S. 445, 457, n9

(1976\("There is no dispute that in enacting the 1972

Amendments to Title VII . . . Congress exercised its power

under Section 5 of the Fourteenth Amendment”). Like

§1988, CRREA is a derivative statute, enacted to enforce

legislation, including Title IX. The logical inference, again,

is that if CRREA was enacted pursuant to both Section 5

and the Spending Clause, then so was Title IX, CRREA’s

underlying statute.

In short, Congress’ intent to implement broad antidis-

crimination provisions when enacting Title IX, and to do so

pursuant to its authority under Section 5 of the Fourteenth

Amendment, is implicit in the legislative history of Title IX

and explicit in the legislative history of CRREA and §1988.

* CRREA was enacted in response to the Court's decision in Atascadero

State Hosp. v. Scanlon, 473 US. 234, 246 (1985), which held that Con-

gress must make “unmistakably clear" its intent to abrogate Eleventh

Amendment immunity. CRREA therefore specifies that: “[a] State shal!

not be immune under the Eleventh Amendment of the Constitution of

the United States from suit in Federal court for a violation of .. . Title

IX of the Education Amendments of 1972... .”

13

ll. THIS COURT HAS NEVER REQUIRED ANTI-

DISCRIMINATION LAWS ENACTED PUR-

SUANT TO SECTION 5 TO DETAIL EVERY

FORM OF PROHIBITED DISCRIMINATION

The question of whether or not Title IX prohibits

student-to-student harassment is ultimately an issue of statu-

tory interpretation and congressional intent. But the

Eleventh Circuit's approach to that question inevitably was

affected by its view that Title IX was enacted solely pur-

suant to the Spending Clause. Even if Congress is required

"to give potential recipients unambiguous notice of the con-

ditions they are assuming when they accept federal funding,"

Davis, 120 F.3d at 1399, this Court has never imposed a

similarly restrictive rule of statutory construction on Section

5 legislation. To the contrary, the Court has consistently

held that antidiscrimination laws enacted under Section 5

should be liberally construed to promote the broad equality

principles of the Fourteenth Amendment.

This principle of construction is not a license to Con-

gress to “decree the substance of the Fourteenth Amend-

ment’s restrictions on the states." City of Boerne, 117 S.Ct.

at 2163. But it does suggest that it is particularly inappro-

priate for courts to elevate form over substance when inter-

preting the nation’s civil rights laws. Obviously, there is a

point at which any law becomes so vague that its enforce-

ment offends basic notions of due process. However, that is

a far cry from the Eleventh Circuit's conclusion that the

sweeping terms employed in a civil rights law such as Title

IX must be read to permit every form of discrimination that

is not explicitly prohibited.

That is not the approach this Court has ever taken.

More to the point, it is not the approach this Court took

when it first ruled, in Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57 (1986), that sexual harassment is a form of sex-

14

ual discrimination under Title VII. Nothing in the language

of Title VII referred to sexual harassment, and petitioner

strenuously argued that the words of the statute could not be

read to bar a hostile work environment absent some evi-

dence that the respondent had suffered tangible economic

consequences. This Court unequivocally rejected the re-

strictive reading that petitioner proposed.

Instead, the Court read the statute in light of its under-

lying purposes and concluded that "(t]he phrase ‘terms, con-

ditions, or privileges or employment’ evinces a congression-

al intent ‘to strike at the entire spectrum of disparate treat-

ment of men and women’ in employment." /d. at 63, citing

Los Angeles Dep't of Water and Power v. Manhart, 435

U.S. 702, 707 n.13 (1978). Next, the Court pointed to

EEOC guidelines specifying that sexual harassment is a

form of sex discrimination prohibited by Title VII and that

"Title VII affords employees the right to work in an envi-

ronment free from discriminatory intimidation, ridicule, and

insult." 477 U.S. at 65. Cf 62 Fed.Reg. 12034, 12039-40

(1997),,OCR final policy guidance under Title IX prohibiting

peer harassment in schools). Relying on both sources of

authority, the Court concluded that sexual harassment that

rises to the level of a hostile work environment could form

the basis of a Title VII violation. See also Harris v. Forklift

Systems, Inc., 510 U.S. 17 (1993)("[T]he very fact that dis-

criminatory conduct was so severe or pervasive that it cre-

ated a work environment abusive to employees because of

their race, gender, religion, or national origin offends Title

VII's broad rule of workplace equality").

Both before and after Meritor, the lower courts have

followed a similar approach in broadly interpreting civil

rights laws enacted pursuant to Section 5. Rogers v. EEOC,

454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957

(1972), cited in Meritor, 477 U.S. at 65, was the first case

to recognize a cause of action based upon a racially discrim-

15

inatory work environment. In Rogers, the Fifth Circuit held

that a Hispanic plaintiff could establish a Title VII violation

by demonstrating that her employer created a hostile work

environment for employees by giving discriminatory service

to its Hispanic clientele. /d. at 238. The appellate court ex-

plained that "Title VII should be accorded a liberal interpre-

tation" and, in accordance with this broad interpretation,

held that Title VII's protections extend beyond the economic

aspects of employment:

[T]he phrase “terms, conditions or privileges of

employment" in [Title VII] is an expansive

concept which sweeps within its protective am-

bit the practice of creating a working environ-

ment heavily charged with ethnic or racial dis-

crimination .... One can readily envision

working environments so heavily polluted with

discrimination as to destroy completely the

emotional and psychological stability of minor-

ity groups....

Id.

Other lower courts have applied this broad reading of

Title VII to harassment based on race, religion, national ori-

gin, and discriminatory sexual harassment. See, e.g., Fire-

fighters Institute for Racial Equality v. St. Louis, 549 F.2d

506, 514-15 (8th Cir.), cert. denied, 434 U.S. 819 (1977);

Gray v. Greyhound Lines, East, 545 F.2d 169, 176 (D.C.Cir.

1976)(race); Compston v. Borden, Inc., 424 F.Supp. 157

(S.D. Ohio 1976)(religion); Cariddi v. Kansas City Chiefs

Football Club, 568 F.2d 87, 88 (8th Cir. 1977)(national

origin); Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.

1982); Katz v. Dole, 709 F.2d 251, 254-55 (4th Cir. 1983);

Bundy v. Jackson, 641 F.2d 934, 934-44 (D.C. Cir. 1981);

Zabkowicz v. West Bend Co., 589 F.Supp. 780 (E.D.Wis.

1984)(sexual harassment), cited in Meritor, 477 U.S. at 66.

16

In each of these contexts, the fact that Title VII does not

mention harassment has not prevented the courts from con-

cluding nonetheless that harassment violates the statute.

Besides recognizing harassment as a form of discrimina-

tion covered by Title VII, the Court has found that other

discriminatory practices not mentioned in Title VII also are

covered by the statute. In Griggs v. Duke Power Co., 401

U.S. 424, 429-30 (1971), for example, the Court considered

whether Title V.! covered testing procedures and employ-

ment criteria that discriminate on the basis of race. The em-

ployer in Griggs had instituted policies requiring new hires

and transfers at a power generating facility to possess a high

school degree and to obtain satisfactory scores on two apti-

tude tests. Though cognizant that "nothing in the Act pre-

clude[d] the use of the testing or measuring procedures," id.

at 436, the Court found that the purpose of Title VII, "to

achieve equality of employment opportunities and remove

barriers that have operated in the past to favor an identifia-

ble group of white employees over other employees," sup-

ported the recognition of a Title VII claim based on the dis-

criminatory impact of ostensibly neutral employment prac-

tices.

The principle that Section 5 statutes should be construed

liberally is hardly a new or controversial one. When con-

struing "mere federal-state funding statutes" -- ie., those

passed under the spending power that do not create new

substantive rights -- the Court has looked to "whether the

State voluntarily and knowingly accepted] the terms of the

“contract,” so that it can fairly be said that the State had an

opportunity to comply with the federal funding requirement.

Pennhurst, 451 U.S. at 17, 18.’ By contrast, when constru-

” The notion that the source of constitutional authority may be relevant

in determining the required level of statutory specificity was central to

the Court’s holding in Pennhurst, 451 U.S. at 17.

17

ing acts that enforce the substantive rights of the Fourteenth

Amendment, the Court has never required the statute to

specify that a particular form of discrimination is prohibited

as a prerequisite to a statutory violation. As Meritor demon-

strates, the fact that a remedial statute enacted pursuant to

the Fourteenth Amendment does not spell out each form of

prohibited discrimination does not immunize that form of

discrimination from the statute’s reach. Courts look instead

to the overall purpose of the statute to determine its sub-

stantive scope.

In recognition of the intended purpose of Title IX, the

Court has long supported a broad reading of the statute's

substantive scope. In North Haven Bd. of Educ. v. Bell, 456

U.S. 512, 521 (1982), quoting United States vy. Price, 383

U.S. 787 (1966), the Court instructed that the text of Title

IX should be accorded "‘a sweep as broad as its language.”"

The Court in Cannon again supported a broad interpretation

of Title IX when it inferred in Title IX a private right of ac-

tion, though the statute’s language does not explicitly au-

thorize one. Cannon, 441 U.S. at 694-98: see also id., at

703 ("We have no doubt that Congress intended to create

Title IX remedies comparable to those available under Title

VI and that it understood Title V1 as authorizing an implied

private cause of action for victims of the prohibited discrim-

ination"). Moreover, for the persuasive reasons petitioner

articulates in her brief, recognizing that student-to-student

sexual harassment claims fall within Title IX is consistent

with Title [X’s plain meaning and legislative history. The

fact that defendant school officials allowed sexual harass-

ment to flourish, regardless of whether that harassment was

perpetrated by a teacher or a student, sho d therefore sub-

ject them to liability under Title IX.

Last Term’s decision in Gebser v. Lago Vista Indep.

School Dist., 118 S.Ct. 1989, is not to the contrary. The

holding of Gebser is that a school district cannot be held

18

liable in damages under Title IX for teacher-student harass-

ment unless it had actual knowledge of the harassment.

This case involves a different issue entirely. Gebser was

concerned with ensuring that defendants have adequate no-

tice of the existence of the discrimination before they are

held liable in damages. Defendants undeniably had that no-

tice here. Accordingly, the only issue in this case is

whether defendants can claim immunity from damages be-

cause Congress did not provide them in advance with a

laundry list of every possible discriminatory act that may be

actionable under Title IX. Nothing in Gebser can plausibly

be read to impose that obligation on Congress. More im-

portantly, any such obligation would seriously impede civil

rights enforcement and run counter to the well-established

rule that civil rights laws should be broadly construed.

The court below reached the wrong result because it

followed the wrong interpretive path. By treating Title IX

as nothing more than a contract between the federal govern-

ment and the school districts it funds, the Eleventh Circuit

lost sight of Title IX’s roots in the Fourteenth Amendment.

As a result, it construed Title IX as though it were part of

the tax code rather than an important part of this nation’s

civil rights laws. Under Section 5, the relevant question is

not whether Congress mentioned the problem of peer sexual

harassment in the text of Title IX or even its legislative

history. The relevant question is whether peer sexual

harassment can ever rise to the level of discrimination on

the basis of sex. The answer to that question is surely yes,

as this Court recognized in Meritor and Harris. Petitioner's

complaint was therefore improperly dismissed.

19

CONCLUSION

For the reasons stated herein, the judgment of the court

below should be reversed.

Respectfully submitted,

Sara L. Mandelbaum

(Counsel of Record)

Karen R. Marks

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Dated: November 9, 1998