Aurelia Davis, A/n/f of Lashonda D. v. Monroe County Board of Education, Charles Dumas and Bill Querry
74 F.3d 1186
11th Cir.
1996
Check Treatment

*3 by erred dismissing her Title IX claim Before BARKETT, BIRCH and Circuit against the by and Board1 dismissing her Judges, and HENDERSON, Senior Circuit § 1983 process due against claims all defen- Judge. dants. She also contends that she made an equal protection claim on which the district BARKETT, Circuit Judge: failed rule. Because we find them Davis, Aurelia as mother and next friend merit, without reject arguments Davis’ D., appeals LaShonda the district court’s regarding process the due equal and protec- dismissing order her claims under tion claims without further discussion. See against and County Monroe 11th Cir. Rule 36-1. For the reasons that Board of (“Board”), Education Board Super- follow, however, we conclude that Davis’ alle- intendent Charles Dumas and elementary gations that the Board knowingly permitted school Principal Querry Bill (collectively “de- a hostile environment another fendants”). complaint Davis’ injunctive student’s sexual harassment of LaShonda relief and compensatory damages alleged state a valid Title against IX claim the Board that LaShonda harassed on a and accordingly we reverse the dismissal of continuous male, basis fifth-grade class- complaint her as to that claim. mate, that defendants knew of the harass- yet ment failed to take meaningful action I. BACKGROUND stop protect her, it and and that LaShonda suffered harm as a result of their failure to Davis’ factual allegations, presumed as act. The act, defendants’ failure to Davis in true our review motion dismiss, asserted, discriminated against LaShonda Cleveland, Duke (11th and denied her the benefits of a public Cir.1993), edu- can be summarized as follows. cation in violation of Title IX of the Edu- Over the period six-month between Decem cation Amendments of 20 U.S.C. ber 1992 May and “G.F.,” a fellow fifth- §§ 1681-88 Davis also claimed grader at a Monroe County elementary defendants’ omissions violated school, LaShonda’s sexually harassed abused La- and/or liberty interest to be free from sexual harass- Shonda attempting her, to fondle fondling ment and intrusions personal on her, her and directing language offensive toward 1. Davis appeal does not the district court's dis- al defendants. missal against Title IX claims the individu- December, instance, causing grades, previously all at- her G.F. work In her. Bs, and As and to suffer. The harassment also breasts tempted to touch LaShonda’s her, debilitating “I in area, telling get want had a effect her mental vaginal your well-being, causing to feel you,” and “I want emotional to write bed with in April occurred similar incidents Two suicide note boobs.” February, placed a January In G.F. OF II. STANDARD REVIEW pants and behaved a sexu- doorstop his novo, toward LaShonda. ally suggestive Reviewing manner the claim de we will February incidents occurred later uphold appears Other if it be the dismissal rubbed April, in March. G.F. yond allegations doubt *4 sug- hallway sexually complaint upon constitute a LaShonda do not gestive G.F.’s actions increased may granted. Hunnings manner. v. which relief be (11th charged Texaco, severity finally Inc., 1480, he was with until Cir. May 1994). battery in guilty pled to “The issue is not whether a ultimately prevail but whether the claim will reported her teachers G.F. to LaShonda support to ant is entitled to offer evidence of the incidents her mother after each Ledbetter, Taylor claims.” incidents, and, Davis after all but one of (11th Cir.1987) (en 791, banc), 794 n. 4 cert. principal to see called teacher and/or denied, 1065, 1337, U.S. S.Ct. protect daughter. could done to her what be (1989) omitted). (quotation L.Ed.2d 808 protection unfulfilled. requests for went The incident, Following example, one for LaShon- III. DISCUSSION sexually had girls da whom G.F. and other provides pertinent Title IX as fol- permission harassed their teacher asked lows: principal. report to G.F.’s harassment to shall, person in No the United States request, telling the teacher denied the sex, partic- of be from basis excluded you, girls, principal] he’ll “[i]f [the he wants of, in, ipation or be be denied benefits her mother you.” call After LaShonda told subjected under edu- to discrimination harassment, adding of another incident of activity receiving Feder- program cation or longer how much she that she “didn’t know al financial assistance.... her,” spoke keep him off Davis with could action Principal Querry 1681(a) and asked what undisputed § It is 20 U.S.C. Quer- protect System to LaShonda. County would taken is Monroe School ry responded, guess “I I’ll have to threaten Ac- recipient of federal financial assistance. harder,” and later him a little bit he cordingly, [G.F.] issue before us is whether the “why she was the one stop asked LaShonda alleged to action to Board’s failure take LaShonda and Davis also complaining.” “ex- of LaShonda G.F.’s sexual harassment LaShonda, assigned in, an who had asked ... participation from denied [her] cluded G.F., to move to of, subjected seat next to be allowed ... [her] benefits [her] the re- request County different seat. Even Monroe to discrimination under” the her was not to move fused and she allowed of system on the basis her sex. educational away G.F. until after she seat from failure argues Davis the Board’s months. complained for over three School stop harassment discriminated the sexual disciplined officials never removed or G.F. and denied her the bene- against LaShonda harassment of any manner for his sexual In on the basis sex. fits her education LaShonda. argument, urges Davis us to support of this principles from the complaint apply sexual harassment Finally, G.F.’s VII, severely of Title which more extensive caselaw unrestrained conduct uncurbed and in the work- ability prohibits sex discrimination benefit from curtailed LaShonda’s requires education, part, Title VII lessening place.2 In relevant elementary her steps assure that employer to take her capacity to concentrate on sehool- 42 U.S.C. ... sex.” employer because of such individual's it "for an makes unlawful 2000e-2(a)(l) (1988). against any individual ... to discriminate working employees plaintiff. Accordingly, early environment its IX free Title law- “sufficiently brought primarily sexual harassment3 that is suits under Title IX chal- pervasive severe or to alter the lenged discriminatory conditions of practices in athletic employment See, the victim’s programs create abu- policies. e.g., and admissions working sive environment.” Mentor Sav. id. at S.Ct. In at 1949. howev- Bank, Vinson, 57, 67, er, FSB v. Supreme unanimously allowed (1986) (quota- monetary damages private plaintiffs omitted). contends, however, tion The Board IX, intentional violations see Frank- principles applicable that Title VII lin, are 76,112 increas- present such cases as the one. brought of Title IX number suits employees alleging and students their Enacted in Title IX was de institutions them to signed protect individuals from sex dis sexual discrimination. by denying crimination federal financial aid reviewing to those discrimination claims educational institutions that bear employees teachers and other responsibility edu- discriminatory IX, cational practices. University institutions under Title Chicago, Cannon v. courts *5 36, regularly 677, 1946, applied have principles. 441 704 n. Title VII U.S. & 99 S.Ct. 1961 Rico, 36, (1979) Lipsett University In v. (citing & n. 60 560 Puerto 864 L.Ed.2d 117 of (1st (1971)). Cir.1988), example, F.2d 881 Cong.Rec. strong 39252 “It is a plaintiff was a female comprehensive medical student in measure which is needed residency program if provide we are to and also was an legal women with solid University. of protection they Id. at 886. She as seek education and train careers_” University ing 36, hospital supervisory person- for later Id. at n. 704 subjected nel had 99 her to (quoting atmosphere S.Ct. at 1961 n. 36 of Sen. Birch (1972)). Bayh, hospital. sexual Cong.Rec. 118 harassment at the 5806-07 To accomplish determining In goal, employees 886-92. Title VII sexual and students federally principles applied of harassment funded to this educational institutions “mixed context, against employment-training” who are discriminated on the basis of Second Circuit private legislative sex have a relied Title IX’s right history, of action under Title strongly injunctive suggests IX “which Congress compensatory relief and 717, damages. meant for 1968; Id. at similar substantive 99 S.Ct. at standards to Schs., apply Franklin v. under Title IX as been County developed Gwinnett Pub. 503 60, 75-76, 1028, 897; under Title U.S. 112 VII.” Id. at see S.Ct. also Pres- 117 (1992). Moreover, ton Virginia L.Ed.2d v. interpret- 208 Commonwealth ex rel. of “[tjhere IX, Community New River College, 203, Title is no doubt that if 31 F.3d (4th Cir.1994); give are 207 scope Mabry v. origins [it] its State Bd. of dictate, Community Colleges, 311, we must sweep accord it a 813 F.2d 316 as n. 6 broad (10th Cir.1987). language.” as its North Haven Bd. Educ. of Bell, 512, 521, v. 1912, 456 U.S. 102 S.Ct. upon Courts also have relied Title VII (1982) 1918, 72 (quotation L.Ed.2d 299 omit- evaluating when IX Title sexual harassment ted). claims students. In determining that Ti-

Although prohibits tle IX Supreme quid a recognized pro quo Court teacher’s private student, right sexual 1979, of action harassment of a for example, under Title IX in Cannon, 717, 1968, see one court 441 U.S. at observed that 99 S.Ct. at recently until the denial of financial perfectly aid [it is] reasonable to maintain that remedy institution was the to a available academic achievement upon conditioned favors, Sexual harassment upon involves unwelcome sexual ment benefits sexual or as "hostile advances, favors, requests harassment, for sexual and other environment” sexual which creates physical unwelcome intimidating, verbal or conduct of a sexu- working hostile or offensive en- 1604.11(a) (1991). al nature. 29 C.F.R. unreasonably Such vironment that interferes with an harassment constitutes actionable performance. sex discrimi- individual's work See Meritor Sav. Bank, workplace "quid Vinson, 57, nation in the pro quo” 62, 65, either as FSB 477 v. U.S. 106 2399, 2403, 2404, employ- sexual (1986). which conditions Bank, FSB v. Meritor Sav. basis sex.” of constitutes demands to sexual submission Vinson, 64 [106 477 education, just as discrimination sex believe 49] We 91 L.Ed.2d promotion job retention questions a teacher when apply rule should the same supervisors demands to sexual tied student. and abuses a sexually harasses as recognized increasingly become have federal intend for surely did not Congress ban VU’s of Title violations potential support expended to moneys to be employment discrimination against sex sought statute it actions intentional proscribe. Univ., 4 F.Supp. Yale Alexander v. Franklin, (2d Cir. F.2d (D.Conn.1977), aff'd, 631 Title VII relied on Importantly, Title recognizing that 1980). Similarly, in case, Meritor, a VII and cited principles environ the existence prohibits the issue. to resolve harassment sexual teacher’s to a ment due observed student, under- have another several courts Subsequently, application ‘doctrine’ authorize “[tjhough the Franklin to stood in the context Title IX developed student’s to a generally of Title standards has seem school. VII, guidelines VII] [Title these v. College University Moire to Title IX.” applicable York Murray v. equally New Medicine, F.Supp. Cir.1995), (2d Dentistry, Sch. Temple Univ. (E.D.Pa.1985), aff'd, Title VII ad- n. looked Circuit Second Cir.1986). (3d that she IX claim dressing a student’s education- sexually hostile to a Nonetheless, Gwinnett in Franklin at the patient al environment (11th Schools, F.2d 617 County Public *6 The district at 248. dental school. Id. rev’d, Cir.1990), determin- complaint after the had dismissed (1992), declined this court L.Ed.2d insufficient to alleged were ing that the facts question analysis to the a Title apply plaintiff that college knew the show that avail- damages were compensatory whether by a hostile environment subjected to under by a student brought in a suit able Id. advances. sexual persistent patient’s the however, appeal, at On 622. IX. Id. Title considering appropriate the In at 247-48. reversed, upon relied and Supreme Court the college determining the standard holding authority in and principles Title VII environment, the of the hostile notice had compen- an award authorizes Title IX that [Franklin] “[t]he observed: Circuit Second v. Gwinnett damages. Franklin satory ..., Title VII a of Meritor citation Court’s 74-75, Schs., 503 U.S. County Pub. hold- central Franklin’s case, support 117 L.Ed.2d that, suit for in a Title IX ing indicates al- student’s high-school a involved Franklin sexual based on gender discrimination sexually ha- a teacher legations that insti- student, educational harassment school that her and and assaulted rassed standards under liable may be held tution the knowledge of officials, had actual who cases under applied in those similar to at Id. misconduct, to intervene. had failed appli- Upon Murray, at VII.” the rejecting 1031. In standards, Second the Title VII cation of language specific argument facts determined Circuit suffi- institutions give not did IX college had show that were insufficient damages for liability for of their notice cient hostile environment. notice of stat- discrimination, Supreme Court such 249-51. ed: the North- Similarly, the District placed on Unquestionably, Franklin relied on of California duty ern District Public Schools County Gwinnett a may state a student determining that sex, and on basis to discriminate sexual environment for hostile Title IX a sexually harasses supervisor a “when is initiated where subordinate’s of the because subordinate Doe v. Petaluma In students. fellow ‘diseriminate[s]’ sex, supervisor District, School (N.D.Cal. 830 F.Supp. (citations omitted). The court concluded that 1993), plaintiff alleged that she was ha to deny recovery to harassed stu- rassed when she was a seventh- eighth- and dent under the hostile environment theory grade student in the defendant school dis “would violate Supreme Court’s com- trict. The harassment allegedly began early mand give Title IX a sweep as broad as its plaintiffs seventh-grade year, when two language.” Id. at 1575. male students approached her and said “I We likewise find it appropriate to apply you hear have a dog hot your pants.” Id. Title VII principles question to the before us. at 1564. Over year the next half, other As discussed in the foregoing cases, such students regularly made similarly offensive application supported is by Franklin, Title remarks to spread sexual ru legislative IX’s history and Supreme mors innuendoes about her. Id. During Court’s mandate that we read Title IX period, plaintiff and parents her spoke broadly, as well as findings of the OCR. with her school counselor on numerous occa particular, the OCR has found that a sions and asked him stop the harassment. subjected student to sexual harassment The counselor told them he would take care when “unwelcome advances, sexual requests of everything, but he initially did nothing favors, or other sex-based verbal than more warn some offenders, stat physical conduct has the purpose or “boys will boys.” Id. at 1564-65. effect of unreasonably interfering with the After the harassment and complaints had individual’s education creating an intimidat- continued for more year, than a the counsel- ing, hostile, or offensive environment.” Let- or suspended two of the students. Id. at ter of Findings Palomino, John E. Region- By time, however, going to school Rights al Civil Director, Region (July 24, IV had become emotionally plaintiff, difficult for 1992), Docket 09-92-6002, No. at 2.4 The and she ultimately private transferred OCR also has found that “[w]hen individuals parents’ expense in order to who are participating in program or activi- avoid the harassment. Id. at 1565-66. ty operated by an educational institution are Plaintiff filed suit under Title IX they are re- the school district and ceiving several school treatment officials that is different from oth- for their failure to take *7 ers.” Finally, action to Id. stop the the OCR has found that sexual harassment “[i]f inflicted the upon by her harassment is carried out by non- classmates. agent students, at 1563. Denying the may defen institution neverthe- dants’ motion to less be dismiss for found in failure noncompliance to a state with Title IX claim, the court it held if failed to respond that proscribes Title IX adequately to actual or the same type of constructive notice hostile environment Id.; sexual harassment.” prohibited harassment see by also Letter of Title Findings by VII. Id. at Kenneth A. Mines, 1571-75. In Regional addition to relying Civil Rights Director, Franklin Re- gion Title (April IX’s V legislative 1993), history, the Docket No. 05-92- looked to findings at 2-4. Thus, Department in informally of Edu determin- cation’s Office of Civil Title IX Rights (“OCR”). prohibits peer Pe taluma, harassment 830 in the F.Supp. schools, at 1572 (citing the OCR has re- Patricia H. lied on v. Berkeley VII hostile Dist., Sch. environment princi- 830 Unified ples. F.Supp. (N.D.Cal.1993)). 1288 These find ings demonstrated an OCR belief that “an Application of these principles to Title IX educational institution’s failure to appro take by claims students recognizes, as the Su- priate response to student-to-student sexual preme Court acknowledged Franklin, harassment of which it knew or had reason to a student should have the same protection in know is a violation of Title IX.” Id. at 1573 school that an employee has in the work- 4. OCR Letters of Findings are entitled to great defer- accords deference interpretation, to the they express ence "as opinion agency an particularly when it is longstanding, agen- charged with implementing Title IX regu- and its cy charged with the statute's administration." Petaluma, lations.” F.Supp. at Haven, 1573. As the North 456 U.S. at 522 n. 102 S.Ct. at Supreme stated, Court has “this normally n. 74-75, Franklin, to act to eliminate the harassment.5 112 fail 503 U.S. at place. See Cf. Franklin, at Indeed, there are dis- where at 1037. 249; 1037; Murray, Petalu environment see the school tinctions between ma, emphasize F.Supp. at 1575. But see Seamons they to “serve workplace, (D.Utah Snow, protection against F.Supp. sex need for zealous H., 1994). Patricia in the schools.” discrimination ability to con- The F.Supp. at 1292-93. case, by requiring a school this to even behavior exists trol and influence harassing employee action in or- commit classroom than greater extent claim, for Davis to state a the district der to their teachers workplace, students look as a recognize to the nature of claim court failed The protection. as guidance as well sexual harassment: for hostile environment also is damage by sexual harassment caused because, complaint The court dismissed the than in the greater in the classroom arguably view, “any harm to LaShonda was not in its the harassment has workplace, because by federally-funded ed- proximately caused on its longer lasting impact greater and provider” and neither the Board ucational victims, young and institutionalizes of the Board “had role nor Moreover, accepted as behavior. harassment D., F.Supp. in the harassment.” Aurelia may economically as it be for difficult as added). The ratio- (emphasis court’s workplace, it is virtu- to a hostile adults leave implicitly limited sexual harass- nale thus their impossible children leave ally quo quid pro ment actions Finally, nondiscrimina- assigned “[a] school. or maintenance of which conditions benefits maximum tory is essential environment quo upon sexual favors. This was the status therefore an inte- growth and is intellectual sought claim. evil Davis not Davis’ benefits that gral part the educational through her hostile environment redress sexually A envi- abusive student receives. act of a claim was the direct inhibits, prevents, the ha- if not ronment favors, demanding sexual but rather official developing her full intel- student from rassed stop officials’failure take action to potential receiving most from lectual those whom offi- acts of over offensive (quota- program.” Id. at 1293 the academic recognizes Title VII cials exercised control. omitted). tion employers to requires distinction and employees’ their Thus, steps take assure that as conclude working is free from sexual due to a environment encompasses damages a claim for regardless sexually working hostile environment the sexual demands employer, caused tolerated by co-workers and encompasses damages supervisor a claim for *8 by supervisors co- or environ environment created to a hostile educational due Dundee, 897, v. by Henson or students workers. ment created a fellow student (11th Cir.1982).6 concept, this knowingly Under supervising authorities 905 when the 151, 363, 375, 62 L.Ed.2d is U.S. 100 S.Ct. argues that Title VII caselaw 5. The Board Likewise, inapplicable was VII to IX because Title IX we have utilized Title Title 275 spending Su clause. The impact enacted under analyze disparate claim under Title to a Court, however, preme has relied on Title VII VI, stating disparate elements of a “[t]he VI, analyzing was claims under Title which also impact may gleaned by reference spending In Guard under the enacted clause. Georgia State Title VII.” cases decided under Commission, 463 v. Civil Service ians Association U.S. Georgia, NAACPv. 775 Branches Conf. of of (1983), L.Ed.2d 866 103 S.Ct. 77 (11th Cir.1985). Thus, the fact that 1417 pro example, the Court found Title Vi's spending clause statute has not Title is not a VII "subject was to the of discrimination hibition importing into Title bar to its standards been a given provi construction antidiscrimination VI, importing its is bar to and therefore no Griggs [401 Duke Power Co. VII in sion Title IX. standards into Title 849, 28 L.Ed.2d 158 U.S. Guardians, (1971)]....” 463 U.S. at 103 liability recognize employer circuits also 6. Other adopted Title VII’s at Court also S.Ct. 3227. The employer's on the failure under based Title necessity” analyze disparate "business defense remedy a cre- hostile environment take action involving impact student in a Title VI case claims Harris, by Smith v. Bath Iron co-workers. See ated placement. See Educ. v. Board of employer knowingly when an question fails to take There is no allegations remedy action to a hostile environment satisfy First, requirements. the first three caused one co-worker’s sexual harassment female, as a LaShonda is a member of a another, employer of “discriminate[s] Second, protected group. subject she individual” in an[ ] violation of unwelcome sexual harassment in the form VII, 2000e-2(a)(l). § Title 42 U.S.C. physical “verbal and conduct aof sexual na- Likewise, when educational institution 1604.11(a). Third, § ture.” 29 C.F.R. knowingly remedy fails to take action to a clearly harassment LaShonda faced was on hostile environment caused a student’s the basis of sex. another, the harassed of, student has denied the “be[en] benefits or As to the requirement, fourth be[en] to discrimination under” recognize hostile environment in an program that educational in violation of Title setting by simple is not created IX, 1681(a). working U.S.C. Just as a childish behavior or an offensive utter required woman should not be to “run a comment, ance, vulgarity. Rather, or gauntlet of sexual abuse return for the IX is violated “when the [educational envi privilege being allowed to work and make permeated ronment] is ‘discriminatory with Mentor, 67,106 living,” U.S. S.Ct. at intimidation, ridicule, and insult’ that ‘suffi is omitted), (quotation a female student ciently pervasive or severe to alter the condi required should not be gauntlet to run a tions the victim’s [environment] and create sexual abuse in privilege return for the — environment,’” Harris, an abusive being U.S. allowed to obtain an education. at-, Meritor, (quoting S.Ct. at 370 Having determined that en 64-65, 106 2404) (internal 477 U.S. at S.Ct. at compasses learning a claim for a hostile envi omitted). determining citations by peer ronment plaintiff has established that an environment sufficiency we must consider the of Davis’ abusive, or a court particu must be allegations. elements must (1) larly concerned with frequency prove type succeed of sexual (2) conduct; abusive severity; the conduct’s (1) harassment ease are: that she ais mem (3) physically threatening whether it is or (2) protected group; ber that she was humiliating merely offensive; rather subject than harassment; (3) to unwelcome sexual (4) sex; (4) unreasonably whether it that the harassment was based on interferes that the sufficiently plaintiffs performance. at-, harassment was with the severe pervasive so toas alter the conditions of S.Ct. at explained 371. The Court has her education and create abusive edu that these objec factors must be viewed both environment; (5) cational that some ba tively and subjectively. If the conduct is not liability sis institutional has been established. pervasive so per severe or that a reasonable Meritor, Cf U.S. . 2405-08; abusive, son find it would hostile or it is see also Harris v. Forklift beyond purview. IX’s Similarly, if the —Inc., Sys. -,-, 114 plaintiff perceive does not subjectively 367, 370-71, (1993); abusive, environment to be then the conduct *9 Henson, 682 F.2d at 903-05. actually has not altered the conditions of her learning environment, true,

Assumed as and alleged the facts there is no Title in complaint, the together at-, with all IX violation. Id. 114 reasonable at therefrom, inferences satisfy these elements. 370-71. Works, 164, (1st Cir.1991); 178, (6th Cir.), 943 F.2d denied, 1041, 165-66 Ka 182 cert. 506 U.S. Univ., 773, (2d 831, ribian (1992); v. Columbia 14 F.3d 779 113 S.Ct. 121 L.Ed.2d 701 Carr v. Cir.), denied,-U.S.-, 2693, Motors, cert. 114 S.Ct. Gas Allison Turbine Div. Gen. 32 F.3d (1994); 1007, (7th 1994); Lerendos v. Stem Enter 1009 Cir. Hall v. Gus Construc Inc., tainment, 747, (3d 1990); Co., 1010, (8th 909 F.2d 749 Cir.1988); Cir. tion 842 F.2d 1015-16 DeAngelis Frank, Municipal v. El 503, (9th Paso Police Nichols v. 42 F.3d 508 Cir. Officers Assoc., (5th Cir.1995); 1994); Co., 51 F.3d Weyerhaeuser Baker v. 903 F.2d Kauff Inc., Div., Signal, (10th man v. Cir.1990). Allied Autolite 1345-46 this knowl- despite that alleged nally, Davis light in of us before case to the Turning take to failed officials edge, the school five months factors, find the relevant the the end to action remedial and prompt sufficiently and severe alleged harassment of regarding allegations These of harassment.7 conditions the altered have to pervasive the other Lability, as well as institutional both from learning environment LaShonda’s prima establish (1) are sufficient allegations, standpoint: subjective and objective discrimi- IX for sexual under Title claim La- facie toward conduct in abusive engaged 6.F. to take failure Board’s (2) to the due occasions; nation the eight at least Shonda sexually environ- remedy a action in to result sufficiently severe was conduct (3) ment. G.F.; con- the against charges criminal for requests and groping duct, as the such humiliat- threatening and sex, physically IV. CONCLUSION (4) offensive; the and merely than ing rather the affirm foregoing, we light of the La- with unreasonably interfered conduct exception with the judgment court’s district resulting in performance, academic Shonda’s IX claim the Title of dismissal of its grades of deterioration substantial the court’s the district We reverse the Board. go alleged The facts health. emotional pro- remand of that claim dismissal vulgari- horseplay, childish simple beyond far herewith. ceedings consistent flirting. or adolescent ties in REVERSED part; AFFIRMED final fifth and consider Finally, we REMANDED. part; Board’s any basis element —whether VII, Under shown. liability has been concurring in Judge, BIRCH, Circuit supervi conduct harassing dissenting part: imputed should co-worker sor affirmance court’s I concur Although with in accordance is determined employer Davis’s of dismissal district court’s of Meri See agency. of principles common-law major- claim, with disagree I 2408; section Mur at tor, state allegations holding that Davis’s ity’s agency 249. Under ray, 57 County Board against Monroe valid superior, theory respondeat of of the Education under of Education environ a hostile employers liable holds §§ 1681- 1972, 20 U.S.C. Amendments where by a co-worker ment IX”). (“Title (1990 Supp.1995) & knew employer “the that can show of the known have or should that allegations not involve does case This remedial prompt take and failed question sexually district of the An em Henson, F.2d at action.” D., rather but LaShonda harassed employer demonstrate can ployee prevent failed negligently school district showing that she “by the harassment knew LaShonda. harassing student another management higher complained noting is correct majority pervasiveness showing the byor “Title IX held has Supreme Court to the gives rise which ac right implied through an enforceable constructive knowledge or inference County Pub. v. Gwinnett Franklin tion.” omitted). (citation knowledge.” 1028, 1032, Sch., 503 U.S. (1992) (citing Cannon L.Ed.2d that she case, has Davis In this 677, 99 S.Ct. Chicago, 441 University manager— higher level principal told the —a However, (1979)). L.Ed.2d She occasions. on several of the harassment al student’s high-school involved Franklin separate three least alleged that also ha had a teacher legations principal, to the teachers, in addition her, *10 that school and and assaulted rassed La- knowledge from repetitive and actual the knowledge of actual officials, had who Fi- students. other Shonda, and her mother any policies or schools, provided not during the time alleged that complaint also 7. The respond to employees on how training its pro- harassment, policy no Board had of hibiting harassment. in student-on-student its of students the sexual conduct, teacher’s failed to intervene. 503 Lastly, I would remedy limit the available 63-64, 112 S.Ct. at 1031-32. The plaintiff to a in the ease of unintentional student-on-student sexual harassment al- violations of Title injunctive IX to relief. leged in this case analytically quite is distinct Franklin involved intentional discrimination Franklin, from that and the majority by the school board on the sex, basis of unprecedented makes an extension holding thus involved an intentional violation of Title that Title encompasses claima of hostile IX. The Supreme Court has held environment sexual harassment based on the case of intentional IX, violations of Title mon conduct of a student. There is no indication etary damages are available to the victim of language of Title IX that such a cause Franklin, sexual harassment. 503 U.S. of action was intended to be 73-75, covered its 112 S.Ct. at 1037. What the Su scope; rather, the statute states that preme “[n]o Court did not Franklin, decide in person in the shall, United States however, monetary damages sex, basis of to discrimina- are available in eases involving unintentional any tion under program educational or activi- violations of Title IX. Most courts have ty receiving Federal financial assistance.” interpreted IX along the same as lines 1681(a). § U.S.C. case, In this the school statutes, similar such as Title ofVI the Civil board, clearly which is “pro- Rights Act of §§ U.S.C. 2000d- gram activity” under 20 U.S.C. (1994 2000d-4a & Supp.1995). Since the Su not to have committed any act of preme Court expressly has found that Title against LaShonda, nor is VI does not support a monetary damages employee of the school Rather, board. remedy for Title VI violations not involving plaintiff seeks to hold the school board liable discrimination, intentional Guardians Ass’n for negligently failing prevent v. Civil another stu- Comm’n, Service 602- dent, not its employee, harass- my LaShonda. opinion, this student- (1983), similarly should find that mone on-student sexual harassment clearly case tary damages are limited to intentional viola falls purview outside of Title IX. tions Therefore, of Title IX.1 even if I were to accept majority’s argument that Title Even if I were to accept the majority’s IX applies to the conduct at issue in this conclusion that Title IX encompasses stu- case, I would limit the remedy available to dent-on-student I would injunctive relief. limit holding to intentional conduct on part Here, school board. what is Accordingly, I part CONCUR and DIS- alleged is that the school board was negligent SENT in part. in failing to prevent intervene the recur- ring student-on-student harassment. The majority relies on Franklin in reaching its conclusion that Title IX behavior, covers such though

even the Franklin case involved in-

tentional behavior part on the teacher;

absent an indication to contrary, Frank- lin should be limited to its facts. But rather this, do

than majority broadly

reads it to cover student-on-student sexual

harassment, but also to cover negligent be-

havior on of the school board.

1. At least one federal district court has reached tional discrimination on the basis of sex this conclusion as well. See Doe v. City Petaluma institution”). the educational Dist., Sch. F.Supp. (N.D.Cal. Doe specifically held that obtain "[t]o dam- 1993) (finding that prohibit DC "Title does ages, enough it is not that the institution knew or environment sexual harassment but ob should have known of the hostile environment (as damages tain opposed to declaratory or in- and failed to appropriate take action to end it.” junctive relief), allege one prove must inten-