Aurelia Davis, as Next Friend of Lashonda D. v. Monroe County Board of Education

еxtremely important respect to an sen- tencing It was to believe factor. led might away murderer walk

convicted double prison. if years

in five sentenced to life

essence, impression stripped erroneous discretion, sentencing jury of its and thus Cargill’s sentencing proceeding

rendered

fundamentally jury unfair. Had the not been

misled, probability is a reasonable there juror

at least one refused to Cargill to

sentence death.9 I

Accordingly, would reverse the district as Cargill’s

court’s denial habeas relief

death sentence and would remand this ease

to the district court with instructions to issue setting death writ aside the sentence Cargill

unless the State affords new sen- newly

tencing proceeding empaneled before a

jury. DAVIS,

Aurelia Next Friend D.,

of LaShonda Plaintiff-

Appellant, COUNTY BOARD

MONROE OF

EDUCATION, al., et Defen

dants-Appellees.

No. 94-9121. Appeal^, States Court

United

Eleventh Circuit.

Aug. 1997. (Tr. imprisonment 1461-62). life penalty. over the death It stated: you any extenuating [W]hether or not find law, Georgia sentencing jury Under if the does circumstances, mitigating you facts or are au- unanimously penally, recommend the death penalty thorized fix the in this case at life impose the trial court must a sentence of life imprisonment.... penalty You fix the State, imprisonment. Hill v. 250 Ga. imprisonment you life see fit to do so for S.E.2d satisfactory you reason or without rea- son. Macon, GA, Sullivan, Marcia Mary Patricia Williams, Deborah Greenberger, Verna Center, Brake, Law The National Women’s DC, Washington, Plaintiff-Appellant. Goldseheid, for Ami- City, York Julie New Fund. Legal Defense & Education cus Now Plowden, Jr., T. William Wallace Warren GA, Prescott, Macon, Defendants-Appel- lees. Gross, L. Linda Dimsey, Mark

Dennis J. Justice, Washington, Thome, Dept, of F. DC, Department of Justice. for Amicus U.S. HATCHETT, Judge, Before Chief EDMONDSON, COX, BIRCH, TJOFLAT, DUBINA, BLACK, CARNES and BARKETT, Judges*, and Circuit ** HENDERSON, Senior KRAVITCH Judges. Circuit * participate in this decision. did not Judge recused R. Lanier Anderson himself

TJOFLAT, Judge: pellant sought injunctive $500,000 Circuit relief and compensatory punitive damages. Davis, brought Appellant, Aurelia this suit appellant’s The district court dismissed of Education of the Board Monroe complaint entirety in its for failure to state a (the “Board”) County, Georgia, and two claim can granted. relief be officials, Dumas Bill Charles and Educ., D. v. County Aurelia Monroe Bd. of Querry, daughter, on behalf of her LaShonda (M.D.Ga.1994); F.Supp. 862 368 see also 12(b)(6). complaint alleged Appellant appealed Fed.R.Civ.P. Davis. The that the defen- the district court’s of her IX dismissal Title 901 of dants violated section the Education Board,3 against claim arguing that a 92-318, Amendments of Pub.L. No. 86 school board can be held liable Title (1972) (codified Stat. as amended at prevent IX for its failure to sexual harass (“Title (1994)) IX”), § 20 1681 42 U.S.C. and among ment appeal, students. On a divided 1983,1 § faffing prevent U.S.C. a stu- three-judge panel reinstated her Title (“Hub- Elementary dent at Hubbard School against claim the Board. See Davis Mon bard”) sexually harassing LaShonda Educ., County roe Bd. 74 F.3d 1195 of Appellant while she was a student thеre. (11th Cir.1996). request, At the Board’s we separately alleged that the defendants dis- granted rehearing appel en banc to consider against criminated LaShonda on the basis of claim,4 lant’s Title IX affirm and we now § 42 Ap- race in violation of 1981.2 U.S.C. district court’s dismissal this claim. ** Kravitch, claim, Judge Phyllis regard § Senior A. who was a With to Davis’ 1983 the com- plaint allege member of the banc en court which heard oral seemed that the defendants were case, argument provision solely liable under this this took senior status on because Jan- Davis, however, uary participate apparently violated IX. and has elected ar- gued court 46(c) before district that the pursuant § defendants this decision to 28 U.S.C. for'infringing § were 1997). liable under LaShon- (Supp. rights da’s under the Due Process Clause of the who, provides, "Every 1. person This section un- Fourteenth Amendment to the United States statute, ordinance, regulation, der color of Constitution. The court district dismissed this custom, usage, subjects, 12(b)(6). State ... implied claim under Rule Aurelia D., subjected, any person F.Supp. causes to be ... ... at 366. deprivation any rights, privileges, appeal did or immuni- Davis not dismissal her laws, § claim ties secured to the extent it Constitution shall was based on the injured____” alleged party be defendants’ IX. liable to the violation of Title Accord- U.S.C. did, (1994). ingly, § that claim is not before us. She however, appeal § the dismissal of her claim to extent it was based on defen- actually alleged 2. Davis that the named defen- dants' violation of the Due Process dants on the discriminated basis of race in viola- addition, argued In Clause. Davis for the first tion of "the Act Education of 1972 and the Civil three-judge panel time before the same Rights apparently Act of 1991." Davis was refer- § encompassed 1983 claim a violation of the ring to the Education Amendments of Equal Protection Clause of the Fourteenth 92-318, (1972), Pub.L. No. 86 Stat. 235 and the Amendment. Rights Civil Act Pub.L. No. panel rejected process Davis’ due act, (1991). however, 105 Stat. 1071 The former equal protection arguments and affirmed the dis- not does cation, address racial discrimination in edu- steadily expanding § missal of her 1983 claim provide and the latter act does not Cir. under 11th R. 36-1. See Davis Monroe cause of action for racial discrimination in edu- Educ., County Bd. portion cation. district court construed this petition Davis did rehear court to this complaint allege of 42 violation U.S.C. banc, ruling en and we see no reason disturb § provide a cause of does action panel’s sponte. decision sua We therefore do types certain of racial discrimination. § not consider Davis’ various 1983 claims. sum, address Davis' we claim appeal Davis did not the district court's dis- against the Board. regard missal of her Title DCclaim with to indi- Querry. vidual Educ., defendants Dumas and Davis County 4.See Davis v. Monroe Bd. similarly appeal (11th Cir.1996). did not the district court’s dis- Granting rehearing F.3d 1418 Therefore, missal of her 1981 claim. panel opinion operation we do en banc vacated the not consider these claims. of law. 11th Cir. R. 35-11. engaged in plaint states that G.F. similar I. (although unspecified) conduct on about A. 4, 1993,5 January January again allegedly reported in- 1993. LaShonda both de district novo the We review appellant. After cidents to Fort and one appellant’s complaint for court’s dismissal incidents, appellant of these first three called which relief can state claim failure to Fort, appellant course who told City Mel granted. See McKusick v. Principal Querry their conversation that (11th Cir.1996). bourne, To knew about one of incidents. end, allegations we take as true complaint has set forth her appellant G.F.’s continued. On Febru- misconduct allegations those describe examine whether 3,1993, ary allegedly placed door-stop G.F. provides relief. injury for which law in pants sug- in his behaved a and Laney, See Welch gestive during LaShonda manner toward Cir.1995). allega appellant’s We construe physical their education class. LaShonda re- liberally the issue is not wheth tions because ported Maples, to was this incident who prevail appellant ultimately but will er February 10, physical On education teacher. offer evidence to she entitled to whether unspecified engaged G.F. in conduct Rhodes, support her claims. Scheuer similar to that of the December 17 incident in 1683, 1686, L.Ed.2d Pippin, the classroom of another of LaShon- by describing the alle begin We Pippin da’s teachers. notified LaShonda appellant’s complaint. gations contained appellant, G.F.’s behavior and later told who Pippin to

then called discuss the incident. B. G.F. more un- On March directed specified, offensive conduct toward LaShonda was enrolled as a fifth- LaShonda Davis physical during education class. LaShonda during 1992- grade student Hubbard Maples reported Pippin. An G.F. to year, year. During that school 1993 school allegedly LaShonda unidentified teacher told Hubbard, principal of Querry was the Bill Principal Querry ready to was listen Fort, Joyce Pippin, and Whit Ma- and Diane complaint her to about G.F. com- at the The ples were teachers school. 17,1993, point At Fort some around March alleges the Board administered plaint change assigned to seats allowed LaShonda federally programs educational funded G.F., however, away persisted in from G.F. supervised employ- the school’s Hubbard and 12,1993, April On ees, his unwelcome attentions. Querry including Principal and Teachers a body against Fort, he rubbed his LaShonda Maples. Pippin, and sexually suggestive; manner she considered complaint, fifth-grade a According to the hallway in the on the this incident occurred was in several La- student named “G.F.” complained again way to lunch. LaShonda initially assigned was classes and Shonda’s to Fort. in Fort’s class- the seat next LaShonda Lastly, May com- on LaShonda while room. On December classroom, appellant school about more allegedly plained tried to after Fort’s G.F. by Appellant unspecified G.F. vaginal area. behavior touch LaShonda’s breasts Quer- Principal a paid LaShonda then visit allegedly vulgarities at G.F. also directed At this meet- LaShonda, ry to discuss G.F.’s conduct. get “I want to in bed such as why no other ing, Querry your feel La- asked LaShonda you” and “I want to boobs.” complained During had about G.F. complained to After students Fort. Shonda mother, Querry appellant, told “I meeting, day, her LaShonda also told a little guess I’ll to threaten bit [G.F.] The eom- appellant, about G.F.’s behavior. day. ally actually on complaint alleges that harassed LaShonda Hubbard this second 5. holiday. Friday, January a Accord occurred or about instance of harassment "on January ingly, appellant's we benefit January assume 1993.” We note that alleged on about Janu Saturday. Presumably, harassment occurred there was no was a ary Saturday, not have sexu 1993. school on so G.F. could day, May Appellant the same G.F. was claims that LaShonda harder.” On suffered a battery, charge anguish sexual which mental because of G.F.’s сharged with behavior. trauma, deny. complaint apparently did not As indicia of this emotional the com- he police. plaint grades dropped us who summoned the states that does not tell LaShonda’s year during the 1992-1993 school and that all, complaint eight sepa- describes in April LaShonda wrote a note suicide of sexual harassment rate instances G.F. allegations, appellant Based on the above alleged eight instances of harassment These contends that “[t]he deliberate indifference occurred, every average, twenty-two once by Defendants to the [sic] unwelcomed sexu- period. days six-month Three in- over al of a advances LaShonda classroom; stances occurred Fort’s two hostile, intimidating, created an offensive and class; Maples’ physical education occurred abuse school environment violation of [sic] classroom; in Pippin’s one one oc- occurred Title IX.” We therefore consider whether hallway; and one curred in a school occurred Title IX allows claim school board report- unspecified in an location. LaShonda remedy based on a school official’s failure to ed four instances of known hostile environment6 caused Fort, Maples, Pippin. two two sexual harassment of one student another reported final LaShonda instance of (“student-student harassment”). incident, May appel- Querry. complaint lant does not II. allege faculty member knew of more that provides person Title IX “[n]o harassment, than four instances of shall, sex, United States on the basis of Principal complaint Querry indicates that in, participation excluded from be denied the one instance harassment learned of, subjected benefits or be discrimination meeting appellant before with and La- his under program activity education re May Shonda on ceiving Federal financial assistance.” 20 (1994). § what complaint Although does not state action U.S.C. 1681 nothing in upon being plain language speaks each of the teachers took in- of Title IX to the demeaning LaShonda issue of formed of G.F.’s student-student sexual appellant’s conduct. We assume for benefit several district held courts have that the teachers took no action other than allows a studеnt to sue a school board for apparent Principal failing notification of prevent Fort’s hostile-environment sexual Querry one of three after the first instances harassment another See student. Doe v. of alleged Dist., harassment and Fort’s Londonderry decision Sch. F.Supp. 970 64 (D.N.H.1997); move around March LaShonda’s Nicole M. v. Martinez Uni Dist., assigned away 1369, that of G.F. seat from We will F.Supp. Sch. 964 1372-78 fied Principal (N.D.Cal.); as true that accept Querry Collier v. William Penn Sch. Dist., (E.D.Pa. 1209, took no G.F. other F.Supp. measures than 956 1213-14 1997); him threatening disciplinary with By Through action at Bruneau Schofield 19 point May meeting Dist, some his v. Kortright before South Cent. Sch. 935 appellant daughter. 162, (N.D.N.Y.1996); her For example, F.Supp. 172 Doe v. Pe appellant’s Dist., we assume for benefit that City F.Supp. 1560, some- taluma Sch. 830 (N.D.Cal.1993), instigated one other than the school staff 1576 grounds, rev’d on other (9th prosecution Cir.1995); G.F. 54 F.3d 1447 Burrow v. Post- 22, 367, 370-71, 6. The "hostile sexual term environment” harass- 114 126 S.Ct. L.Ed.2d 295 13, employment litigation (1993). originated ment under As discussed we note conclude infra 1964, Rights § Civil liability, 703 of the Act of Pub.L. No. that Title VII standards of borrowed (1964) (codified context, Slat. 255 employment 78 at 42 from the do not control our (1994)) ("Title VII”). Nevertheless, U.S.C. 2000e-2 pur- Hostile- resolution of this case. claim, poses occurs appellant's environment whenever of our discussion of we speech employee’s complaint allege or conduct creates an at- construe the that G.F.’s mosphere sufficiently pervasive speech atmosphere severe or or conduct created an employee’s working sufficiently to alter another conditions. hostile or abusive to alter the Inc., Sys., learning 510 Harris v. U.S. 21- conditions of LaShonda’s environment. Forklift

1395 Dist., According F.Supp. 929 of educational institutions. Community Sch. ville Court, (N.D.Iowa 1996); plaintiffs can state claim under Title Wright v. Ma Dist., by alleging federally that a funded edu F.Supp. Community 940 City Sch. son institution, acting (N.D.Iowa 1996); through its Bosley cational em v. 1419-20 subjected intentionally Dist., 1006, ployees, them dis F.Supp. 904 Kearney R-1 Sch. programs crimination in its educational (W.D.Mo.1995); R.-S. v. Santa Oona 1023 University v. activities. See Cannon Chi Schs., 1469 F.Supp. City 890 Rosa cago, U.S. (N.D.Cal.1995); Berkeley H. v. Uni Patricia (1979). example, 60 L.Ed.2d 560 For where Dist., F.Supp. Sch. fied engaged a ori a teacher (N.D.Cal.1993). But see Garza Galena conversations, her, from ented solicited dates Dist., F.Supp. Indep. Park Sch. mouth, forcibly and thrice kissed her on (S.D.Tex.1994) (“[A] student cannоt her another removed from class order claim environment bring hostile sexual intercourse with engage coercive IX.”). private school, in a office at the her however, been appeals, The courts of found that the school board could be The Fifth Circuit has held enthusiastic. less held liable for his actions. See Franklin action exists where a that no cause of Schs., County Pub. Gwinnett have known of merely knew should board 63-64, 76, 1028, 1031, 1038, act. and failed to peer sexual harassment (1992). L.Ed.2d Dist., 80 Bryan Indep. Sch. Rowinsky v. Court nor this Neither court — denied, Cir.), cert. however, found, a school has ever board -, L.Ed.2d failing prevent held non- can be liable com have resolved Other circuits employees discriminating against stu- sexual harassment plaints student-student Appellant on the of sex. does not dents basis deciding a cause of action without whether allege any employee of the Board inten- IX this harm. Title for exists under by tionally discriminated LaShonda Snow, 1226, See, e.g., Seamons participating in personally G.F.’s offensive (10th Cir.1996) (holding the 1232-33 Rather, appellant alleg- her. conduct toward a claim for stu plaintiff failed to state valid by failing IX that the Board violated Title es he sexual harassment because dent-student to respond LaShonda’s com- adequately to ques allege to that the harassment failed Supreme nor Neither the Court this plaints. sex); Murray v. was account of his tion on IX has considered whether a Title court Dentistry, 57 College New York Univ. of theory. can this In plaintiff proceed under (2d Cir.1995) that, 243, (holding F.3d short, by liability of the Board seeking direct of private IX cause Title created even student, appellant wrongdoing of by a non-em action for an extension of under argues school, plaintiff allege ployee of failed history legislative IX. We Title examine officials knew should that school IX to determine whether harassment); Doe v. Petaluma known appellant’s provision reach intended Dish, Cir. City Sch. allegations. 1994) school coun (holding that defendant immunity qualified selor was entitled A. respond failed against a claim he provision now known as Title by plaintiff harassment of known sexual flurry regarding emerged from bills students). other July In June and public education. on Education squarely ad- House Subcommittee not has Labor, Committee on Education sexual House the issue student-student dressed leadership Representative Edith general, the Court has al- under harassment. Green, hearings gender on discrimina- Ti- held private plaintiffs proceed lowed pro- federally funded educational allege intentional tion in cases that tle Against Worn- grams. See Discrimination by the administrators gender discrimination 6, 1971, Hearings April en: on Section 805 H.R. 16098 On a new education bill was Special Subcomm. on Education introduced the House. See H.R. Before Comm, (1971). Cong. on Education La- 92nd This bill contained a House (1970) bor, provision proposed similar to the amendment Cong., 91st 2d Sess. [hereinafter Representative testimony None of Green’s subcommittee Hearings ]. House nearly year one earlier. Title X of Representative Green’s H.R. before subcommittee prohibited gender discrimination in edu- sexual harass- concerned student-student issues, program activity cation receiving such as federal ment or school disci- related 92-554, support. H.R.Rep. financial No. Instead, pline. the subcommittee’s work fo- (1972), reprinted in 1972 U.S.C.C.A.N. eliminating gender discrimination in cused on report 2511-12. The House on H.R. employment admissions provision response 7248 described this as a administrators. decisions of school discriminatory policies admissions em- By Rights 703 of section the Civil Act ployment practices federally funded gender already prohibited discrimina- 1.964 again, schools. See id. Once neither employment. Rights tion in See Civil Act of report testimony House nor underlying § Pub.L. No. 78 Stat. discussed student-student sexual harassment. (1964) (codified § at 42 U.S.C. 2000e-2 While the House bill remained in commit- VII”).7 (1994)) (“Title VII, however, tee, the Senate considering a similar apply did not to educational institutions. See (1971). bill. Cong. education See 92nd S. (codified § 78 Stat. at as amended at emerged The Senate bill from the Senate (1994)). Similarly, § sec- U.S.C. 2000e-l Committee on Labor and Public Welfare on Rights prohibited tion 601 of the Civil Act August without antidiscrimi- recipients all racial discrimination fed- provision Consequently, nation at all. § eral funding. 78 Stat. at 252 August Bayh Senator Birch intro- (codified (1994)) (“Title at 42 2000d U.S.C. on the duced Senate floor an amendment VI”).8 gender Title VI did ban discrimi- the committee’s version of S. 659. funding. by recipients nation of federal (1971). 30,156. Cong. amendment, Ree. His gap legis- To fill this antidiscrimination provision Repre- like the House drafted lation, proposed the subcommittee drafted a subcommittee, sentative Green’s extended Cong. amendment to H.R. 91st provisions antidiscrimination Civil This applied amendment would have to Rights gender Act of 1964 to discrimination schools the requirements non-discrimination by federally funded higher “institutions of types of Title VII and added “sex” to the learning.”9 30,155. defending See id. at In discrimination banned Title VI. House See amendment, Bayh his Senator did not discuss words, Hearings, supra, at 1. In other the harassment, student-student sexual nor did designed subcommittee’s amendment was he discuss discipline. He on focused bridge gap the between Title VII and Title gender discrimination in school admissions amendment, however, VI. The never reached employment opportunities for female See North 30,155-56. House floor. Haven Bd. any teachers. See id. at In Bell, 13, event, Educ. v. 523 n. rejected Bayh’s the Senate amend- (1982). 1919 n. L.Ed.2d 299 non-germane, 30,415, ment as id. at and the states, 7. receiving Tille VII "It be an em- shall unlawful Federal financial assistance.” ployment employer practice for an ... to dis- (1994). § U.S.C. 2000d any respect criminate individual with terms, conditions, compensation, privi- ... or Bayh’s provided, 9.Senator first amendment “No leges employment, because of individu- such shall, sex, person ground ... on the be ... 2000e-2(a)(l) (1994). al’s ... U.S.C. sex.” 42 subject any program to discrimination under or activity by public high- conducted a institution of person 8. provides Title that "[n]o VI in the Unit- education, shall, race, color, any department er or school or ground ed States on education, graduate origin, participation recipient national excluded which is of Fed- from in, of, subjected be denied benefits financial pro- or be eral assistance for education activity 30,156. program gram activity.” Cong. discrimination under Rec. at thought crucial as August aspects would “cover such 659 on passed S. Senate procedures, scholarships, fac- provision. admissions without antidiscrimination employment, ulty exceptions.” with limited 3, 1971, began the House November On again, at 5803. Yet no Id. senator mentioned by the passed as of S. consideration sexual harassment or school student-student “amended” the Senate The House Senate. discipline. virtually entire striking contents bill the contents of replacing it with 659 and of S. adopted Bayh’s The Senate second amend- 7248, including antidiscrimination H.R. February Cong. on ment 1972. See 118 92-604, S.Rep. at 1 No. provision. See (1972). Rec. at 5815 Because irreconcil- (1972), reprinted in 1972 U.S.C.C.A.N. differences bеtween the House able and Sen- change without made this 2595. House Houses ate versions of S. both referred passed its version S. comment official bill to a conference committee. S. See Cong. 1971. See 117 on November (1972). 92-798, Rep. No. at 1 Conf. 30,882. Rec. at reported joint conference committee out Senate, On November containing the mea- bill antidiscrimination consent, the House ver- referred committee, unanimous now IX. The sure known the Committee of S. 659 back to sion however, explain in- its reasons for did Welfare, proceeded and Public Labor cluding passed Title IX. The conference bill to conform amend the House version signed was into law both Houses and on June S.Rep. See No. original version. Senate 22,702. Cong. Rec. at See (1972), reprinted in 1972 at 1-2 Throughout long history, the legislative again, the 2595-96. Once U.S.C.C.A.N. of Title IX never drafters discussed student- gender not discuss discrimina- committee did is- student sexual harassment or related all, much less sexual harassment tion discipline. of school sue February among students. On of S. committee sent its own version Senate B. See 118 back the floor the Senate. Cong. Rec. 2806 history legislative While the floor, returned to Senate Once bill not indicate that autho does Bayh again introduced an amend- Senator private cause of action student- rized provision.10 to add an antidiscrimination ment legislative student sexual proposal Bayh’s id. 5802-03. history show that Title was enacted does leg- existing loopholes “elose[ ] intended I. See Spending Clause of Article general pro- relating to education islation I, 8,§ I.11 Con Const. art. cl. When resulting those employment grams receipt of federal fund gress conditions support of his Id. at 5803. programs.” compliance with feder ing recipient’s stated, amendment, Bayh Senator directives, acting statutory Congress is al dealing basically with three differ- we are spending power. pursuant its Guard ... dis- types of discrimination here[:] ent Comm’n, 463 U.S. Ass’n v. Serv. ians Civil institution, to an crimination in admission 3221, 3230-31, 598-99, 77 582, 103 S.Ct. of available services [sic] discrimination J.). (1983) White, of (opinion 866 L.Ed.2d once students studies within an institution history Title indicates ‍‌‌​​‌‌‌​​‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌‌​​​​​‌​​‌​​​‌‌​‌​​​‍legislative The of admitted, in em- are and discrimination recip Congress impose upon intended to institution, a mem- ployment within re ’assistance a ients of federal educational faculty or ber of the whatever. on the basis quirement оf non-discrimination Spending Clause authorized problems, these of sex. The at 5812. To counter

Id. provision Congress impose this condition. proposed a he Bayh Senator stated, provides, part, Bayh’s Section 8 of Article I amendment 11. 10. Senator second shall, sex, person of ... be the basis ... Congress "No ... on Power To [the] shall have ”[t]he subjected under education to discrimination general United provide ... Welfare of the for the activity receiving program Const, Federal financial 8, I, § art. cl. States.” U.S. Cong. Rec. at 5803. assistance...." 118 1398 put 598-99, 629, 638,

Representative it suc See at Green 463 U.S. 103 at S.Ct. 3247, law, 3251; Nichols, writing I Lau cinctly: “If are the see also we 563, 568-69, 786, 789, 414 say be all institution could men or S.Ct. (1974) (describing women, my feeling L.Ed.2d how a all own do but “contractually agreed comply district taxpayers’ funds it with own their funding). title VI” it accepted when federal Education Amendments Higher funds.” of Hearings on H.R. H.R. H.R. 1971: quoted As Justice White from legisla- the 5193, and H.R. H.R. the. 7218 Before VI, of history tive Title is not a regulato- “It on Education Special Subcomm. measure, of ry but an exercise of the unques- Labor, on Education and House Comm. power tioned of the Federal Government to (1971). Represen Cong., 92nd 1st Sess. 581 fix the terms which Federal funds shall be approval quoted with tative Green also Presi Ass’n, disbursed.” at Guardians 463 U.S. stated, Nixon, dent who had “Neither the Cong. 103 S.Ct. at 3231 (quoting 110 Congress nor President nor the the con (1964) Rec. 6546 (quoting Oklahoma v. Civil permit money can science of the Nation Comm’n, Serv. 330 U.S. people all the comes from be used (1947))) (internal 553, 91 L.Ed. 794 quo- way which discriminates some of omitted). tation marks Justice White 39,257 (1971) people.” Cong. Rec. up legislative summed philosophy behind (statement Green). Rep. To of Senator “Stop discrimination, Title VI: get the Bayh, clearly was the reach Title IX re money; discrimination, continue the do not federally stricted institutions. funded get money.” Ass’n, Guardians support Cong. at 5812. In of Title Rec. Cong. 103 S.Ct. at 3231 (quoting 110 IX, stated, urge my “I Senator McGovern 1542) (internal Rec. at quotation marks omit- colleagues every pro opportunity to take ted). interpretation This matches plain funding hibit of sex discrimination.” Federal VI, language of Title which conditions the 30,158. legislative This Cong. Rec. disbursement federal funds on recipi- history clearly shows that intended agreement ent’s not to discriminate on the “typical spend Title IX to be ‘contractual’ (1994). § basis of See 42 race. U.S.C. 2000d Ass’n, ing-power рrovision.”12 Guardians language virtually Title IX is identi- 463 U.S. at S.Ct. at 3231. cal language Cong. Title VI. See 117 (statement 30,156 congres- addition to these indications of Rec. at Bayh). Sen. intent, sional similarities between Title IX The differences are the substitution Title VI indicate that Title was enact- the words “on the basis of sex” the words pursuant Spending race, color, ed Clause. “on ground As or national above, prohibits recipients noted origin” VI insertion of the word “edu- funding federal engaging race dis- cational” in front of “program the words activity.” Bell, crimination. In Guardians Association v. City College See Grove Commission, Civil at least six Service mem- U.S. S.Ct. (1984)

bers Supreme agreed (Brennan, J., Title L.Ed.2d 516 concurring VI Spending in part enacted under the Clause. dissenting part); compare open question 12. Court has left 92 L.Ed. 1161 Federal funding public whether IX was enacted does not make under school a state Univ., Franklin, actor. Spending 8, See Blackburn v. Clause. 503 U.S. at Fisk 75 n. (6th Cir.1971). Thus, argue, Title IX had 1038 n. 8. been at’ One could as did Amendment, Franklin, enacted under petitioner Fourteenth then that Title IX was en provision the antidiscrimination of Title IX Amendment, acted 5 of the Fourteenth federally would not reach funded schools that Congress authority provides the with to were not plain state actors. We that think the legislation preventing enact states from language Title of IX a commands different result: "deny[ing] any person equal protection ... to the no funding may school that receives federal dis- XIV, 1,§ of the laws.” U.S. Const. amend. cl. Therefore, gender. the criminate on basis of we 4. pursuant conclude that Title IX power a was enacted to Clause, however, Equal The Protection that can reach actors non-state as well as protects against by state-sponsored spending action enti- state power. Rowinsky, actors—the See Kraemer, 1, 13, Shelley ties. See v. 334 U.S. 80 68 F.3d at 1013 n. 14.

1399 1681(a). York, 168, at § New 505 U.S. constituents. See with 20 U.S.C. 2000d U.S.C. at 112 S.Ct. 2424. Supreme has the Court surprisingly, Not patterned IX after “Title was found that To ensure the of voluntariness 694, Cannon, 441 at Title VI.” U.S. participation programs, in federal the Su 1956. at preme required Congress to give Court has study legisla potential of recipients unambiguous of Supreme The Court’s notice to they assuming they Title IX has led it conclude are when history of the conditions tive Pennhurst, accept funding. that federal 451 of Title intended U.S. that drafters 17, way they powеr spending it in same 101 S.Ct. at 1540. A interpret ht courts at provision prospectus at must read like a interpreted Title VI. Id. S.Ct. Therefore, IX, like give funding recipients signal we that Title a find clear what 1957. VI, Congress’ power buying. explained, has they enacted under are general insisting Congress speak welfare of Unit a spend “By that to voice, H. v. San Elizario Rosa we enable States exercise ed States. See clear (5th Dist., 648, knowingly, cognizant F.3d Indep. 106 654 their choice con Sch. Cir.1997); University participation.” Id. sequences Lieberman v. Chica their With (7th Cir.1981), 1185, hand, “Congress cert. to the at must go, regard 660 F.2d 1187 case 1993, denied, unambiguous expressing to school 456 U.S. dis (1982). now attached L.Ed.2d 456 We consider tricts conditions has finding. receipt Indep. funds.” implications of this federal Canutillo Leija, Dist. v. Sch. — Cir.1996), denied, -, cert. U.S.

III. (1997). L.Ed.2d We S.Ct. Congress gave therefore consider whether A. unambiguous that it the Board notice could Congress legislation enacts When stop failing be held liable G.F.’s Clause, Spending it in effect pursuant to the of LaShonda. recip potential a contract with offers form Appellant and the De funding. Pennhurst v. United States ients of federal curiae, Justice, Halderman, 1, 17, argue partment amicus 451 U.S. S.Ct. (1981). Recipients Title IX clear notice of gave who Board 67 L.Ed.2d 694 Appellant points liability. accept condi this form accept monies also federal in Franklin. to its Court’s decision has attached offer. See tions Dole, Franklin, suggested “th[e] the Court 483 U.S. South Dakota (1987). case ... problem not arise in a notice does 97 L.Ed.2d 171 S.Ct. alleged.” is discrimination recipient free to a which intentional prospective A is decline 74-75, 112 at 1037. The at S.Ct. funding. York v. 503 U.S. grant of federal See New States, plain language of Title stated that the 112 S.Ct. Court United imposes duty on schools a discrimi 120 L.Ed.2d 120 Similar sex, and when school recipient from a nate on basis withdraw ly, current student, sexually funding harasses program and further teacher federal decline Ass’n, discriminating on the basis of sex. is if it so teacher chooses. Guardians Appellant ar 1037. 3229. The freedom Id. at 103 S.Ct. at employee intentionally that a is recipients prospectively gues or to to decline the basis of sex when he retrospectively grant discriminating of federal terminate prevent re fails to one student funding will remain she ensures Hence, appellant as- harassing preferences of local another.13 sponsive their banc). Appellant argues a school should Appellant Department of ar- Justice deliberately gue Title VII standards indifferent to that we should use be liable if it is interpret employer is Title IX. An peer sexual harassment school. deliberately directly VII if it liable appeal argument superficial has of this peer sexual harassment in Raton, indifferent See, a few courts. attracted the adherence of Faragher City workplace. See Boca Bruneau, F.Supp. e.g., at 170-71. These (11th Cir.1997) (en 1538-39 1400 Clause, suffi-

serts that the school board here had could be held liable. We notice, purposes Spending disagree.14 cient of the applied provide reasonably working Title VII standards of liabili- to courts have safe conditions (1) simply ty employees), Title VII to IX cases because their owe Title for comparable duty. schools to students no short, deal with sexual harassment jurispru- and Title IX both In Title VII (2) Supreme Court once a Title VII cited dence does not outcome control the of this case. IX, discussing liability under see case in Title Franklin, generally 503 U.S. at 112 S.Ct. at note 14. We this court nor the neither Su- Vinson, (quoting Savings 1037 Meritor Bank v. fully preme Court in Franklin addressed the 477 U.S. 106 S.Ct. 91 question of whether a student can state a claim Bruneau, (1986)). F.Supp. L.Ed.2d 49 935 at by under Title IX for a sexual harassment teach- 170-71. er—much less a student can a whether state However, Supreme Court has never dis- claim under Title IX for sexual harassment gen- cussed student-student sexual harassment another student. erally applied jurisprudence VII to Title IX Title Franklin, The defendant board in suc- reason, Perhaps for this cases. some courts that cessfully moved the district court to dismiss imposed VII-type liability have under Title Title ground Franklin’s Title IX suit on "com- explanation IX have refused—without much —to pensatory relief is unavailable for violations apply jurisprudence all VII to Title IX. of Title IX,” holding a Bruneau, Title which this court See, ("|T]he affirmed. e.g., F.Supp. 935 at 169-70 Schs., County v. Gwinnett Franklin Pub. by holding legal Court cautions that that Title VII (11th Cir.1990). 618 claims, ap- The school board analysis apply standards to an IX Title parently appeal plaintiff’s conceded on that the entirety holding the Court that the is not Title allegations IX.”). stated a under claim Title IX. See id. jurisprudence applied VII must be Title at 619. altogether apply Other courts have refused See, Similarly, the e.g., school board conceded before jurisprudence Title VII Title IX. Rosa H., ("Franklin's Supreme single Court that 656 teacher-student sexual 106 F.3d at citation Savings support harassment violated IX. See to Meritor Title Brief for Re- Court’s conclu- spondents County sion that harassment Franklin Gwinnett is sex discrimination Dist., justify importation Sch. does not itself of other 117 aspects text.”). Supreme grant- VII law into L.Ed.2d 208 of Title the Title con- implied ed certiorari to consider "whether the appellant’s We right supports decline invitation to use Title of action under IX ... a Title liability Franklin, damages.” VII monetaiy standards of resolve this Title IX claim for Dist., 62-63, City case. See Doe Petaluma Sch. at 1031. S.Ct. The Court (9th First, Cir.1994). emphasized F.3d question 1450-51 Title that “the of what remedies differently. VII are worded provides and Title IX If Con- are available under a statute gress interpreted private right 'analytically wished Title to be like the of action is distinct' VII, Congress earlier-enacted Title right from the issue such a of whether exists in written to read like place.” Title IX Title VII. the first Id. at 112 S.Ct. at 1032. fact, Interpreting plain language did rejected not. argu- dif- In the Franklin Court automatically produce ferent does not statutes ments United States as amicus curiae simply pro- precisely arguments the same result because both statutes because those concerned the scribe similar behavior. existence vel non of a of action cause for teacher- Second, VII was question enacted under the far- student sexual which the reaching § Commerce Clause and 5 of the Four- Court considered Id. at "irrelevant.” teenth Amendment. See E.E.O.C. v. Press Pacific Ass'n, Publ'g n. 10 The Franklin Court discussed the notice ele- Cir.1982). not, consequently IX was Spending solely its ment Clause to counter reach is narrower. argument the school board’s that "the normal Third, exposition presumption appropriate under Title in favor of all remedies depends upon agency principles. VII tor, apply See Meri- not should because Title IX was enacted 2408; Faragher, pursuant Congress' Spending U.S. at S.Ct. at power.” Clause Agency principles F.3d at 1534-36. are use- Id. at light, at 1037. Viewed in this discussing liability less in suggestion for student-student Court’s that teacher-stu- IX, harassment under Title because are gives students dent sexual rise harassment to a cause of agents generally not of the school arguably board. See action Title IX was dicta. We (Second) (1958) (de- Agency § Restatement assume Franklin created cause of action fining agency relationship as one which for teacher-student sexual harassment under Ti- IX, principal representation by wary extending consents but we tle holding are this assumed agent agent and the consents to control to student-student sexual harassment. Therefore, event, principal). employers even if owe to the Court’s discussion of this issue employees nondelegable duty sort some does foreclose our own consideration peer workplace, appellant eliminate see whether has stated claim under Title generally (discussing employers’ duty id. IX. public gave liability, IX under which schools would of Title edu The terms alleged lawsuits both harasser they that must face from notice institutions cational alleged victim of the harassment. from themselves en prevent employees their Moreover, public reasonable school officials gender discrimination. in intentional gaging Franklin, perceive likely at U.S. at S.Ct. could number of such See Thus, large. administrators cannot to be our school suits Because endorsement 1037. applicants theory liability because of deny appellant’s to female of would alter admission Cannon, 441 at gender. materially U.S. of of the terms the contract their between 1964. administrators Congress recipients funding, 99 S.Ct. at School of federal ac against teachers on discriminate appellant cannot fails to state a claim which of Educ., Bd. North Haven of sex. See granted. count can be relief at S.Ct. at 1922-23. Teach appellant’s complaint The essence of is sexually their students. cannot harass ers complains a public this: once school student 74-75, 112 Franklin, sexually a has to her teacher that classmate 1037. her, and the school harassed teacher however, complaint, not present does The subject to threat liabili board become employee discriminated that a school allege money ty damages federal law under foregoing any of against LaShonda prevent they can the classmate harass allege, not complaint The does ways. See, ing again e.g., fail to do Bos so.16 Fort, Maples, Pippin, Quer- example, (“Once F.Supp. at ley, 904 a school Rathеr, the LaShonda. ry harassed aware of sexual district becomes failed complaint alleges that these individuals take promptly it must remedial action prevent a non- take measures sufficient end the harass reasonably calculated to discriminating against La- employee from ment.”) added). In (emphasis practical not think that Board We do Shonda. terms, this officials would means school accepted it federal fund- on notice when oth have to isolate an harasser from situa- that it be held liable this ing could through suspension expulsion. er students tion. complaint little The devotes attention B. taken measures the Board could have what First, noted, liability. complaint admits that nothing in the to avoid as we have stop Querry and tried G.F.’s harass- history suggests Fort language or Title by threatening separating imposes liability ment him and for student-student Title Second, within Fort’s classroom. imposition him from LaShonda harassment.15 materially clearly believe that these liability Appellant so does not of this form of would As accept sufficed. evidence “deliber- whether to measures affect schools’ decisions indifference,” alleges complaint require would ate funding Title IX a school sexu- the Board faded create Congress. disclosure express, unequivocal unlikely, seems policy. It appellant’s theory liability, how- al harassment Adopting however, a of such ever, that the mere existence “whipsaw” rise to form of give could ambiguous language statutory great deal of attention to construction 15. The dissent devotes finding required support as of notice cannot Congress intended that Title IX create whether Spending Clause. sexual harass- cause of action for student-student seriously We doubt ment. See Post 1411-14. problem Congress at all whether considered funding that receive federal 16. Private schools but, case, IX, Title when it enacted subject appellant’s under would also be to suit analy- conclusoiy heavy dissent's reliance on its liability. theory teach- Private school Title IX histoiy language administrators, however, IX is sis of would ordi- ers and question is largely § not whether narily irrelevant. subject suit under be counterparts, a cause of action public intended create because their school ordinarily acting student-student sexual harass- under color IX fоr would not 1983; but, rather, Congress gave generally supra, note whether school see ment state law. See Accordingly, liability. we discuss individual of this boards notice form public employees. histoiy, respect legislative any supporting absence liability appel- policy liability would foreclose under threat of Title IX under appellant’s case, theory the theory immediately of the case. a school must lant’s suspend expel or a student accused of sexual Apparently, appropriateness the the harassment.17 depends Board’s remedial measures Appellant’s liability standard therefore actually the whether harassment ends. The creates for school boards school officials complaint suggests that G.F. have should hand, a Hobson’s choice: On one if the a LaShonda, kept away “suspended, been from complains to a student school official about disciplined way” or after [some] LaShonda harassment, suspend the official must complained. Department The of Justice ar- expel alleged the or harasser the board broadly gues that a school board must take potential liability will face to the victim. response allegation to an “effective action” Moreover, public if a school official with con- arguments take of harassment. We these to trol the over harasser finds out about his thing: mean the same a school must board him, misconduct and fails isolate that offi- immediately alleged isolate an from harasser personal the liability cial runs risk of under other students to avoid the threat of a law- § depriving 42 1983 U.S.C. for the victim of suit under Title IX. rights her Title IX if engages ‍‌‌​​‌‌‌​​‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌‌​​​​​‌​​‌​​​‌‌​‌​​​‍the harasser Physical separation alleged of the harasser M., further F.Supp. abuse.18 See Nicole 964 way other students the school R.-S., 1382; 1462; at Oona F.Supp. 890 they boards can ensure that cannot be held Shelby County see also Lillard v. Bd. of liable for future acts of If harassment. a (6th Educ., Cir.1996) 723-24 simply alleged school official tells the haras- (holding that the remedial scheme of Title IX ser, again,” do it “Don’t the harasser preclude does not a section 1983 claim based again, does it then the board sus- becomes conduct). on the same ceptible argument had the hand, On public the other if the school power but end faded do official, prеsiding disciplinary a hearing, over out so of “deliberate indifference.” If the suspends harasser, expels alleged merely alleged official harasser transfers may school board face a alleging lawsuit classroom, to another the board faces the the official acted out of bias —out of fear of threat of for suit acts harassment right public suit. a education under committed him in the new classroom— a property protected state law is interest all, danger- after school had notice his the Due Process Clause of the Fourteenth propensities ous all and did not do it could to Lopez, Amendment. See Goss v. 419 U.S. prevent him from his harassing new class- 565, 574, 42 L.Ed.2d 725 mates. Segregating sepa- the sexes into two (1975). Accordingly, facing depri- students a programs rate within the same school would vation right of this must be afforded due letter, spirit, violate not the of Title IX. process.19 Id. at 95 A 738. fan- terms, Therefore, practical to avoid the hearing in a fair a require- tribunal is basic approach, incidentally, 17. This is qualified immunity, that some situated defendants of be- See, already adopted. e.g., clearly school have statutory boards right cause it would a establish Lewin, Kissing Highlight Tamar Cases Schools’ a employee reasonable school would Harassment, Liability Fears Times, Sexual N.Y. know. for 6, 1996, A22, (“While Oct. A22 Georgia provided procedure 19.If challeng- boys suspensions recent kissing of two little ing er, impartiality of the school's decisionmak- excessive, girls widely they high- were seen as alleged harasser would received all light sweeping the confusion that is schools as entitled, process to which he was and he grapple growing educators fear would have no claim under the Due Process failing be sued for to intervene when one Pate, McKinney Clause. See v. 20 F.3d another."). harasses (11th Cir.1994) (en banc). such Absent Fort, appellant, If procedure, we were to rule favor of bring he could suit in court federal Maples, Queriy, Pippin, argu- § and Dumas alleging would that the state failed to ably qualified immunity be entitled to process accord him the he was due. Whether repairs for their actions in this case. See harasser to state court Dist., court, however, City Doe v. Petaluma Sch. disruptive F.3d federal effect on (9th Cir.1995). officials, teachers, Ruling appel- favor school and students be would lant, however, future, deprive similarly the same. Murchison, re any public school official who learns of process. of due ment L.Ed. allegation fails to exercise presides who decisionmaker authority prevent his recurrence impartial.20 hearing must over the adopt appellant’s harassment. Were we Larkin, 46, 95 S.Ct. Withrow therefore, case, theory public (1975); McKin 43 L.Ed.2d officials would have a financial incentive to Pate, ney Cir. A punish alleged student harassers. finan banc). 1994) (en a incentive render cial decisionmaker Berry impermissibly biased.21 See Gibson v. above, theory of explain appellant’s As we hill, 564, 579, 1689, 1698, liability on 411 U.S. 93 S.Ct. impose personal the could case biased, permissibly purposes separate opinion, in- for of the Due Pro- JUDGE CARNES 20. his In Clause, requirements procedural principal of the that the if a bribe from sists cess the “took are met component of the Due Process Clause parents complaining for student's [a] return disciplinarian a affords student when a school alleged wrongdoer.” suspending expelling [an] or opportunity suspension “informal'' with an faced to however, CARNES, at re- Post 1408. JUDGE story. post at 1407- explain side of the his accept just principal as a would be fuses that correct, reasoning is JUDGE CARNES’ OS. impermissibly principal if the forced biased were goes, on one narrow as it but he focuses far money complaining pay to a student for not suspension up "any to ten of subset of cases— suspending expelling wrongdoer. or an days.” at Post 1407. grasp We fail to the distinction. that, Goss, Supreme "[a]t Court held In minimum, facing suspension very ... students page separate opinion, of his 21. On 1408-09 consequent protected with a interference and the property parade through us a of JUDGE CARNES leads given kind of must be some interest which, imagines, we he have created horribles hearing.” afforded kind of some notice appellant’s theory suggesting that of the case Goss, at kind 738. The 419 U.S. public potentially give an would school officials formality hearing of the will of notice depend, punish impermissible al- financial incentive to course, severity of the nature and of consequences leged The student harassers. dire example, deprivation faces: for the student however, pass conjures, requires, will never come process a sus- he in connection with “due less, days appel- pension adopting that the be precisely or we are not because of charges given liability. or notice of the theory Only oral written we were lant’s them, and, explana- an against him if he denies public adopt theory might her school officials and an evidence the authorities have tion of the potential liability and the under both Title IX face present story.” Id. opportunity to his side component Process procedural Due added); (emphasis see 95 S.Ct. at 740 adopt theory appellant’s But we do not Clause. Horowitz, also, e.g., 435 U.S. Board Curators liability. (1978) 948, 953, S.Ct. 55 L.Ed.2d 124 settings, regard aca- JUDGE (noting college a dismissal for With to non-school that student's procedural pro- opinion reasons necessitates fewer criti- demic overstates our and then CARNES disciplinary rea- for holding. tections than dismissal He us for the breadth of our cizes sons). state, federal, suggesting "[a]U chides us for Goss, however, the opinion its At the end of do to decide what to or local officials called stated, "Longer suspensions Supreme response person's complaint an- about one term, expulsions for the remainder of school avoid a financial incentive to other would have a lawsuit, proce- may require permanently, more formal disqualify from mak- which would them possibility put do we aside the dures. Nor suggest ing noth- a decision.” Post 1409. We situations, only although involving unusual ing the kind. something suspension, more than rudimen- short tary procedures Nevertheless, critique, we of his on the merits required.” Id. at will be could suppose that in such situations all officials open at 741. The Court left S.Ct. impermissible alleging lawsuits bias—if face hearing possibility notice and that more formal immunily of those had form none officials disciplinary required more be for actions would course, suit, which, Stated do have. from ten-day suspensions, and so shall serious than immunity public differently, decisionmakers have we. protect from sort of bias suit to them from Furthermore, regardless of the nature of might give of the rise violations otherwise quality hearing, individ- and the of the notice Judges, example, have Due Process Clause. deprivation property of a ual faced immunity suit "the inde- because absolute impartial is entitled to an decisionmak- interest judgment vital pendent imрartial exercise of requirement JUDGE CARNES seems er—a impaired by exposure to judiciary might See, Univ., e.g., v. Auburn Nash discount. Byers liability.” & potential damages Antoine ("An (11th Cir.1987) impartial 429, 435, Anderson, Inc., guarantee of due an essential decision-maker admits, Similar 124 L.Ed.2d exam- process.”). JUDGE CARNES immunity. gen- qualified ple, public principal im- concerns motivate would be (1973). Therefore, disciplin- fees, lawyers but L.Ed.2d 488 costs include not disrup- burdens associated with the required to un- ary measures avoid process. litiga- of the tion educational subject the school board to der Title could inevitably tion we describe would involve disciplined haras- the threat of suit teachers, students, and administrators ser.22 discovery time-consuming trial prepara- whipsaw the threat of this addition to reasonably expect tion. Schools could re- liability, would face the virtual cer- explicit schools from Congress ceive notice of these tainty litigation consequences. They of extensive costs. These not.23 did erally Fitzgerald, Appellant Department Harlow v. and the of Justice draw (1982) regulatory 73 L.Ed.2d 396 our attention to the activities that, Rights (reasoning qualified immunity, Depart- of Civil United without Office States ("OCR”). danger being ment Justice "there is the sued OCR issued inter- fear of will resolute, guidelines concerning im schoolhouse sexual ‘dampen the ardor of all but the most officials], August harassment on 1996. See [public Sexual irresponsible the most in the " Harassment, Harassment Guidance: Sexual Peer discharge unflinching (quoting of their duties’ 42,728 (1996). Fed.Reg. guidelines Biddle, These is- (2d Gregoire v. Cir. alleged after sued Moreover, the harassment of denied, LaShonda. 1949), cert. at the time of the (1950)) (alterations original). L.Ed. 1363 fact, In regulations code the of federal did not discuss supra as we discuss note the individual student-student sexual harassment. See likely defendants case would entitled to in this be Therefore, (1992). § regu- C.F.R. 106.31 OCR's qualified immunity. put did lations not the Board on official notice of sum, procedural create we no new due potential liability its for G.F.’s of harassment process rights, JUDGE CARNES asserts. Our LaShonda. opinion suggest does not even we would that rights uphold Nevertheless, to create such if we to were appellant Department and the of Rather, appellant’s theoiy liability. of Title IX urge Justice interpretation that we defer to the OCR’s current opinion liability our states this is a form of purposes of for Title IX of this case, logical appellant’s theoiy of of the extension policy guidance case. OCR issued final Congress gave public no notice to school sexual student harassment on March they potentially boards would be undertak- Sexual Guidance: Harassment Harassment ing liability they accepted this Employees, form of when of Students dents, School Other Stu- Parties, funding 12,034 federal under Title IX. Fed.Reg. or Third publication, In this the OCR constructs assumes, course, labyrinth foregoing simply of 22. All factors and caveats which of the of allegations the reinforces our conclusion that the Board was not of harassment are true. While we any on notice that it could be the allegations hesitate held liable in to assume that of stu- false, present situation. dent-student we sexual harassment are do According guidance, tempted March schools not doubt that school students will be failing are liable for to eliminate prospect punishment into the mischief of swift (which sexually harassing against conduct can include any they classmate whom of sexu- accuse advances, requests unwelcome sexual for sexu- al harassment. favors, verbal, nonverbal, phys- al and other or Moreover, public school would find officials nature) ical conduct of a sexual ... another such false accusations difficult to combat. Un- severe, sufficiently ... persis- that is der liability, Title VII standards of which the tent, pervasive ability or to limit student’s to States, appellant, the United and the dissent participate in or benefit from an education adopt, employer may seem anxious to an be sued program activity, or to create a hostile or retaliating against employee who com- abusive educational environment. plains generally about sexual harassment. See 12,038. Id. at 2000e-3(a) (1994) ("It § U.S.C. be shall an un- meaning language may Because the of this employment practice employer lawful for an ... officials, guid- be to obvious school March against to any discriminate ... be- individual lists ance several factors which should be taken testified, assisted, charge, cause he has made into account when a student is sent to the office participated investiga- manner in an sexually harassing Among another student. tion, proceeding, hearing subchap- subfactors, undеr this other factors and the school official ter.”). Thus, logical implications under of should consider the "welcomeness" of the con- appellant’s theoiy liability, duct, harasser, of Title IX a school age age of the of the victim, board complaining could face a lawsuit from the relationship parties, between disciplines bringing student if it her for a vexa- degree to which the conduct was sexual in na- complaint against ture, tious conduct, a classmate. As dis- frequency duration of the text, involved, cussed in the the threat of under degree lawsuits conduct to which the public education, school officials them- per- conduct affected the victim’s school, selves would follow. soon of vasiveness the conduct the loca- Survey, supra, Thus, AAUW 11-12. C. accurate, 7,177,000 survey pub- this around reasonably could believe boards School eleven, grades eight lic school students liability would whipsaw of form female, would male admit Ac in a number cases. arise substantial harassing other students. public cording survey of American a 1993 students, grades 65% of students adopt We do not these statistics as our were victims student-stu eight eleven guide the extent of own definitive sexual See American sexual harassment. dent public in America’s schools. We Found., Hostile Women Educ. Ass’n of Univ. these figures attention to to illus- draw Survey Hallways: The on Sexual AAUW what school boards have to con- trate would (1993) Harassment in American Schools accept in deciding sider whether federal Survey]. Extrapolating AAUW [hereinafter Survey The AAUW funding Title IX. under statistics, Department of Education suggest public could to reasonable school of- 7,784,000 public school students roughly ficials that number lawsuits substantial eight through would consider grades eleven appellant’s theory brought will victims of student-student themselves to be Therefore, liability. imposition Furthermore, 59% harassment.24 students) materially this form affect (including 52% female students accept their decision whether federal edu- responded grades eight eleven sexually harassed other students. funding.25 cational had incident, Survey by simi- AAUW total number students tion of the occurrence school, grades public eight the of in lar at the occurrence enrolled schools in incidents gender-based year. during but non-sexual harass- We incidents of ment, eleven the 1992-1993 school school, the of the of the and number size the obtained the enrollment statistics from in incident. page Department individuals involved the of world-wide-web home keep in See, Educ., official mind The school should e.g., Dep't U.S. of Education. Enroll- circumstances, may conduct "in some nonsexual Elementary Secondary ment Schools, Public may to the take on connotations and rise (last Fall to Fall Grade: 12,039. Id. at He of sexual harassment.” level 1996) http://nces01.ed.gov/nces/ modified Mar. "a should remember that hostile environ- pubs/D96/D96T042.html> U.S. Edu- [hereinafter may tangible injury if no ment exist even there is process ]. cation the to calculate We used same student,” complaining the to the and even if professed the total number of student harassers target the of the harassment. Id. student was not in the nation. addition, 12,041. the official must recall In single that a act of student-student harassment opinion, separate he In JUDGE CARNES’ See id. Final- can create a hostile environment. attempt use of as an characterizes our statistics that, keep ly, if the school official must mind "to establish that student-student sexual harass does kick the harasser out of he not widespread prob a and extensive ment is such school, again, the and the harasser misbehaves holding this case would lem that different of jury personally con- official cludes, liable could liability impose officials and massive school fact, done the that he could have after at 1410. we indicate in the boards.” Post As harming prevent his more to the harasser from text, objective We this is at all. cite these not our classmates. may school boards consider statistics because assumes, course, analysis foregoing the them to be a valid indicator of amount complaint actually the official knew the school lawyer litigation will face. If a for the to the the harasser and summoned him trying County School were Monroe Board OCR, however, According the front office. to the potential advise the Board about the costs may if he did not know official be liable even funding, accepting federal would benefits may the official cause the about harassment: lawyer accepting whether fed matter to that not Title IX if he failed to exercise violate give a few eral funds would rise to lawsuits discovering the misconduct. See "due care" in thousands of lawsuits? 12,042. foregоing does not address id. parents will file the lawsuit that harasser’s suggests that the AAUWSur- JUDGE CARNES suspends summarily when the school official vey actual of lawsuits that overstates number Depart- According appellant and him. theory appellant’s brought under could be Justice, notice ment of the Board received clear agree survey did liability. We that the liability accepted federal of this form of funding when it use the definition of student-student not same IX. We think not. under Title dictates, but as our case law sexual harassment require jury purity arguably would purported statistical 24. To calculate number nation, agreeing allegations of each stu- with the verdict we multi- victims of harassment provided by to have harassed. plied who claimed been percentage victims dent An Spending EDMONDSON, COX, enactment BIRCH, Clause DUBINA, prospectus. CARNES, pro- must read like Just as a BLACK and Judges, Circuit spectus unambiguously must concur in opinion disclose all ma- the court’s with the exception purchaser, terial facts to a would-be an en- Parts III.B and III.C. Spending actment under the Clause must BLACK, Judge, Circuit concurring: unambiguously disclose to recipi- would-be I and, concur judgment Court’s ents all facts material to their decision to exception IIIC, IIIB join Parts accept funding. The threat of whip- opinion. its I separately only write to re liability saw in a substantial number of cases spond to the dissent’s contention that materially recipient’s would affect a Title IX disposition Court’s “plain contravenes the accept funding, yet decision to federal Con- meaning” of Title IX. It is axiomatic that the gress provide unambiguous did notice of statutory language is starting point type language or histo- interpreting meaning of a statute. Ar ry of that statute. We will not alter retro- INS, 129, 135, destani v. spectively agreement the terms of the be- 515, 519, (1991); 116 L.Ed.2d 496 United tween recipients of Title IX McLemore, (11th 1160, 1162 States v. 28 F.3d funding.26 Cir.1994). statutory If the language is un

ambiguous, the courts must enforce the stat ute as written clearly-expressed absent a leg IV. islative intent contrary. United States We condemn the harm that has befallen Turkette, U.S. LaShonda, a Georgia harm for which tort law 2527, (1981); 69 L.Ed.2d 246 Consumer provide indeed Appellant’s redress. Safety Product Sylvania, Comm’n v. GTE present however, complaint, fails to state a Inc., claim under Title IX Congress gave because (1980); Nabisco, L.Ed.2d 766 RJR Inc. v. no clear notice to schools and teaсhers that States, United they, society whole, rather than as a Cir.1992). hand, On the other where the accept responsibility for remedying student- statutory language ambiguous, is then a student sexual harassment when chose court look legislative history in an accept federal financial assistance under effort to discern the intent of Congress. See Accordingly, Title IX. judgment of the Royal Cruises, Caribbean Ltd. v. United district States, court is AFFIRMED. Cir.1997); event, plenty public there are of reasons for conditions exceeds the amount of the disburse- school officials to overlook the statistical flaws in funding represents ment. Federal only 7% all Survey the AAUW pocket- public when is their own elementary revenues for secondary judges books—not those of federal are at schools in the During United States. the 1992- —that stake. year, example, school American schools $17,261,252,000 received gov- from the federal above, $247,626,168,- 26. As purpose budget noted ernment out of a total enactments Education, 000. See Spending supra, under the U.S. [Con- Clause is "to further at D96T157.- gress’] html>. policy objectives by broad conditioning receipt School weigh moneys upon compliance authorities must federal the benefit of relatively recipient statutory funding against small amount of with federal and adminis- not Klutznick, threat of trative substantial directives.” institutional Fullilove suggested individual 65 L.Ed.2d —as Survey AAUW (1980) opportunity also the (opinion C.J.). costs of Burger, Congress —but devoting litigation might hours that otherwise uses spending power governments "to induce spent running be their schools. Because harass- private parties cooperate voluntarily experienced by ment of the sort LaShonda is policy.” federal Id. If no one chooses to receive rarely officials, directly by observed proposed legislative federal funds pro- under a IX claims of the sort appellant envisioned gram, Congress’ intent would be frustrated and require the time-consuming testimony of policy objectives its would remain unfulfilled. numerous student Imposing witnesses. the lia- Rowinsky, 80 F.3d at 1013. bility by appellant of the sort envisioned could Prospective recipients will decline federal induce simply reject school boards to federal funding recipients and current funding will withdraw contravention of the will of Con- —in programs from federal legislative gress. if the Rowinsky, cost of 80 F.3d at 1013.

14Q7 United, Corp., ex rel. v. NEC Stаtes Williams regarding reliable textual indication (11th Cir.1991). which of these constructions envi- legislative sioned invites consideration of his- requires present case us decide tory congressional power and the from which prescribes liability for the whether Title the statute emanates in an effort to discover prevent failure of a school board to a student congressional approach intent. The Court’s discriminating against a from classmate represents entirely appropriate thus ef- pro- sex. The text of Title IX the basis of congressional fort to effectuate will in the person in the United States “[n]o vides unambiguous absence of guidance, textual shall, sex, on the basis of be excluded from not, appears suggest, the dissent stri- in, of, participation be denied benefits judicial clearly dent refusal to enforce ex- subjected to discrimination under ed- pressed legislative intent. activity receiving program ucation Federal financial assistance.” U.S.C. CARNES, Judge, Circuit concurring recognizes, As the dissent ab- “[t]he specially: prohibition in the solute contained text is solely protected.” framed terms of who is holding I concur in the that Title IX does simply specify not The statute does what not create a against public cause of action relationship, any, perpetrator of an school boards or pre- officials for failure to underlying act of sexual harassment must remedy vent or student-student federally-funded have to the in- educational view, my harassment. In holding is liability. trigger stitution to essentially correct for those reasons stated I, II, A, Judge Tjoflat’s Parts III and IV of The dissent nevertheless divines from con- it, opinion, join parts I those of which gressional unambiguous silence an endorse- opinion constitute the of the Court. Howev- proposition identity ment of the that “[t]he er, below, explained for the reasons I do perpetrator simply is irrelevant.” Un- join Judge Tjoflat’s Parts III B and C of IX, conception liability pre- der this of Title opinion, express only his own views.1 sumably anytime would attach the school prevent anyone student, board failed to — I. teacher, parent, neighborhood resident— discriminating on the basis of sex to “whipsaw The “Hobson’s choice” or liabili- ty” opinion the extent that such action inhibited a stu- in Part III B of discussion realizing upon fundamentally prеm- dent from the full benefits of feder- based erroneous view, ally-funded my education. the text ise. If school could officials be sued permits equally plausible failing remedy of Title IX prevent least student-student part opinion constructions that would circumscribe liabili- that of the ty narrowly. Specifically, says, potential more liability the text of would amount to a interpreted impose punish Title IX liabili- financial incentive to the accused har- ty assers, only when the school board or one of its which or would could render school agents responsibility impermissibly require bears direct for officials dis- biased and re- sex, course, criminating on the basis of as would be cusal. Of a student does have a any property in public case had of Lashonda Davis’ teach- interest a education which participated in protected by ers the sexual harassment is the Due Process Clause of And, pro- she forced to endure. The absence of the Fourteenth Amendment.2 due I, II, A, loss, Judge Tjoflat's depends upon severity 1. Parts III and IV of the loss. Court, opinion opinion Lopez, constitute the be- Goss v. 419 U.S. 95 S.Ct. (1975), parts joined by Supreme cause those are six of the ten L.Ed.2d 725 Court held that, judges participating By any suspension up days, in this decision. con- with to ten all trast, judges participating requires none of the other nine the Due Clause is for the stu- Process joined given in this decision have Parts III B and C of dent to “be oral or written notice of the and, them, opinion. charges against him if an he denies explanation of the evidence the authorities have protection opportunity present and an his side of the The nature and extent of the afford- education, 740; property story." public ed S.Ct. at interest in a 419 U.S. accord Educ., process requirements the due attendant to its Arnold v. Board at 1698. That depriving that a hold- require decision cess does proposition any property ing support interest be made does not of that the student pecuniary failing not have a for who does time an official can be sued someone suspended having respond properly complaint that official interest to a example, an extreme re expelled. To take making a about disqualified is from decision afforded, process due gardless of other respond complaint. to the how to principal if a took a process would be violated proposition suggested If that were the law complaining parents from the student’s bribe thankfully of this circuit —and it is not —no suspending expelling in return for discipline ever a student school official could (cid:127) entirely But an alleged wrongdoer.. it is any alleged as a for misconduct result B suggest, as Part III matter different complaint violating another student’s without does, po a official’s opinion school process rights disciplined the due stu- liability complaining student tential if imposition The reason such an of disci- dent. legally required take that official fails to process pline would violate due is that such “financial incentive” amounts to a action always an official have a financial in- would “impermissibly bi which that official renders centive, view, under that to believe the com- deciding requires ased” and recusal plaint in order to avoid a lawsuit filed action, any, required in the circum what complainant. The ramifications of such a authority proposi that novel As for stances. discipline any type rule would extend to tion, opinion only Berry cites Gibson misconduct, principled because there is no hill, basis on which a distinction can be drawn (1973). The Gibson decision L.Ed.2d 488 following complaint discipline between proposition, provides support for the be no following about sexual harassment and hold, imply, even that an cause it does not type complaint about other of miscon- failing prop potential official’s duct. authority erly decisionmaking con exercise which a “financial incentive” renders stitutes any principled is there Nor basis “impermissibly the official biased.” disqualification such an automatic rule could settings. It be confined would also optometry board involved a state Gibson context; apply outside the Title IX for exam- exclusively private practitioners composed ple, jail prison settings. prison- If one corporate competition em- who were complains jailer er to a or warden about what ployee Those board members optometrists. him, prisoner other some has done pecuniary interest in ex- had substantial Tjoflat’s Judge that official will view corporate employee cluding from the market avoiding financial interest a lawsuit from nearly optometrists, who accounted for half complaining prisoner (alleging deliberate practicing optometrists in the state. of all the indifference), disquali- and such interest affirmed the district making any disciplinary fies the official from holding private practitioner’s court’s So, complaint. decision about the pecuniary eliminating competition interest automatic, disqualification rule be deciding disqualified them from whether the practice by corporate employ- it also would be universal. No one would be optometry unprofessional any disciplinary ees constituted con- able decide matters as such schools, justifying prisons, any setting license revocation. or in other duct Cir.1989). opportunity put Court said in Goss that to characterize his conduct and majority disciplinari- proper great "[i]n the of cases the it in what he deems the context.” Board Horowitz, may informally an discuss the miscon- Curators v. Goss, (1978) (quoting duct minutes after it has oc- 55 L.Ed.2d 124 with the student curred,” that, 741); accord, being given e.g., ”[w]e and hold Driscoll, (11th Cir.1996) opportunity explain version of the facts C.B. v. his discussion, ("The extremely clear and ‍‌‌​​‌‌‌​​‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌‌​​​​​‌​​‌​​​‌‌​‌​​​‍at this the student first be told what dictates of Goss are limited.”). doing "rudimentary precautions," he is accused of what the basis of the These itself, description 419 U.S. at accusation is.” 419 U.S. at 95 S.Ct. at 740. use the from Goss ciy explained a due The Court has since that all Goss re- 95 S.Ct. at are far from prop- quires suspension give process hearing before a is an “informal tribunal attendant to some erly deprivations. provide interest take" in order to the student "the complaint, po- that Process such a because official’s purview of the Due within federal, state, liability complaining officials tential student or local All Clause. response disqualifying would amount to a financial upon what to do called to decide reading opinion A bias. careful re- person’s complaint about another to one explain why veals that it fails to that result financial incentive to avoid a have a would necessarily lawsuit, suggest- would not follow from its disqualify them from which would law, reasoning. ed That cannot be the making a decision.

and it is not the law. context, settings As to outside the school opinion respons footnote 21 of the offers two having these Judge Tjoflat’s response to First, simply to this criticism. it es denies— pointed is con- reasoning in his out flaws suggest nothing of the <cWe kind” —that its opinion, 21 of his which will tained footnote proposition potential liability equaling about First, scrutiny. that footnote reward close any disqualifying application bias have worry about us that we should not assures ipse dixit That outside the schoolhouse. as sugges- far-reaching ramifications of the reasoning as it as sertion has little behind potential liability equals disqualify- tion that proposition opinion fails to itself. bias, holding this Court is ing because why automatic offer reason bias the liability have no under Title school officials ory apply in suggests it would not non-school sexual harassment. IX for student-student contexts, no because there is reason. The assurance, forgotten is the Apparently right to an maker is a unbiased decision opinion, “Georgia tort law Part IV of the process, applica which rudiment of due is as very provide redress” for the indeed them. ble outside schools as within potential If a official’s same conduct. liability acting properly disquali- is a for not ipse dixit realizing Apparently interest, fying financial it matters not wheth- illogie approach will not shield the naked potential liability posed by is er that view, opinion attempts position its from not, opinion tort law. The does state camouflage problem with talk of im- cannot, In- logically suggest otherwise. told, munity. worry,” “Don’t we are officials stead, approach adopts a head-in-the-sand settings “immunity non-school IX, everything but Title ignores any potential liability for suit” which removes only potential source of though that were the complaining party, failing to decide for the liability who are called for school officials par- financial incentive to favor upon to do about student- to decide what along potential liabili- ty disappears complaints. student sexual attempted ty. stripe of the The thinnest judi- camouflage opinion’s is the reference sand, comfortably in the With its head talking immunity. are not about cial We entirely obvious im- opinion ignores myriad of judges. talking are about the We proposition for student-stu- plications of its state, federal, non-judicial officials and local disputes involving allegations of misbe- dent what regularly who are called to decide than Part havior other sexual harassment. person’s complaint response to do in to one quotidian business of teachers and Jailers, wardens, and other about another. resolving disputes in which one principals is examples. corrections officials are but few threatened, hit, alleges another has student judges. They do not people These are not from, him or otherwise mistreated stolen enjoy judicial immunity. potential disputes pose of those her. Some so, says, quali- opinion Even there principal the teacher or who fails problems immunity. There are three example, a school official who fied to act. For availability protect a with the assertion appropriate fails to take action immunity distinguishes non-school thrashing qualified at the from a threatened by removing officials may have to answer officials from hands of another student school. complaining party any by a rea- threat of lawsuit in a state court tort action. Under the of a opinion, with an official’s resolution soning in Part III B of the dissatisfied contained First, setting. complaint the school liability prevent any outside potential would Second, immunity qualified is not absolute. deciding from what to do about school official course, purpose, is to show officials advised. That immunity does not shield qualified Third, student-student sexual harassment is so liability on state law. grounded rampant that if a cause of action existed for obviously, qualified doctrine and most resulting litigation would inun- for school officials as it the flood immunity is the same public systems, If that doctrine our school or at least officials. date for non-school threat of fearing officials from school officials would have a basis for shields non-school any disqualify- sufficiently being survey. to remove lawsuit that result —the basis to decide for a com- ing financial incentive especially ought The first reason we to be exactly same plainant, it does particular a use of cautious about such Thus, qualified talk of im- with its officials. are, survey purported findings in is that its opinion has suc- munity, Part III B of survey: sponsors of the the words of the biting itself in reaching around and ceeded “startling,” some “the will be and for results Tjoflat’s Judge opinion If what the back. surprising shocking.” Id. at 2. The rea- implications process says about the due descriptions son for such is that is difficult true, opinion then immunity is qualified percent eighth all to believe that 65 very proposition disproven the it is has seekr through grade eleventh students have been ing to defend. students, and that harassed other of all in those half female and male students II. grades self-professed sexual harassers. are Tjoflat’s opinion at- Judge Part III ofC fact, ought accept We to be reluctant to as tempts that student-student sex- to establish accept assume that school officials would as widespread is such a ual harassment fact, “surprising shocking” such statistics holding problem extensive different upon survey only tiny single based liability impose massive this case would percent fraction of one of the total number of words, In school officials and boards. its grades. in four students theory agreeing appellant’s with give rise to “thousands lawsuits.” survey cursory report Even a look at the premise factual Tjoflat Opinion at n.25. The gives more to be dubious about reason reasoning entirely upon one of that is based opinion’s report. survey use of the The survey report. American Ass’n of Univ. “[djuring your asked students how often Found., Hallways: Hostile Women Educ. anyone you whole school life” has “when did Survey Harassment on Sexual AAUW any following not want them to” done of the (hereinafter (1993) in American Schools things, provided and it then a list of behavior ”). Survey Report “AAUW survey defined sexual harassment. Survey Report not the AAUW See id. 5. Some behavior on that list subject evidentiary hearing in of an the dis- clearly sexually harassing constitutes behav- court, it been in a trict nor has examined type. But ior of most serious included hearing other court insofar as we list is other behavior that is less serious party appeal know. Neither to this even likely complaints and far less to lead to briefs; survey in the it was mentioned litigation, Judge Tjoflat which is what uses gen- in one amicus brief. discussed (or survey predict posits that school eral, incorporate we should be reluctant predict). example, boards will use it to For reasoning survey into our results of a survey’s included definitional list of critically that has not been examined or test- sexual harassment was instance in which evidentiary hearing, ed in a trial or the time- comments, sexual another student: “Made proven system of honored and methods our looks;” jokes, “[sjрread gestures, or justice material uses determine facts. “[sjaid you;” you gay rumors about were Beyond general problems using that a or lesbian.” Id. at 5. Remember sin- surveys judicial making, gle activity, decision there are unwelcome instance of such dur- life, specific why employment par- ing reasons of this the student’s entire school renders survey purpose Judge Tjoflat ticular for the that student a victim sexual harassment opinion purposes survey. uses it in ill- Part III C of his

14H opinion’s byat that while the author does not nec- who has ever been looked A student essarily survey think that per- the is a valid indi- way unwelcome an another student cator of how much student-student sexual survey to be sexual is defined ceived occurs, might school boards Any stu- a sexual harassment victim. to be survey reject think that is and federal gay is also a ever called or lesbian dent funding as a result of it. With all due re- survey’s in the harassment victim sexual spect, there is no reason to believe that Any time unwelcome rumors are view. likely school boards would be less than feder- type having any spread about judges interpre- al to see the flaws such an activity (presumably including kissing) sexual survey. tation of the School boards know student, those students are sex- with another going more about what is on in their schools survey ual harassment victims as the defines do, they expected than we can be example of how the it. To take one final critically any survey using examine before re- total incidence of “sexual harassment” turning funding as a basis for down federal ported legally actionable incidents overstates hiding for their than schools. Rather behind harassment, sur- of sexual consider that the speculation about how school board officials in which vey includes incidents definition might interpret survey, opinion ought you.” or ‘mooned’ Id. “[f]lashed someone up suggested to face to the flaws its use of Suppose that a student at a school function 5. survey. (which survey defines to include school release, Upon sponsors its of the sur- trips) sporting events and field “moons” all vey stated that were “confident that the attendance, or all those from the students survey of this results will become focal single episode A of that mis- a rival school. makers, point agendas policy on the edu- certainly is not nice and behavior —which cators, and others concerned with the edu- occur, but has been known to should cation of America’s Id. at 21. children.” happen make sexual harassment vic- —could survey Their about would confidence how term, tims, survey as the defines the out of III might be used be undermined Part C Yet, hundreds of students. scores even Judge Tjoflat’s opinion. important- More unlikely extremely is such incident policymakers. ly, we are not We do not have litigation against school. result agendas. ought survey to leave this We those who do. survey worthy It also of note that the whether the behavior it de- asked students III. happened had fined as sexual harassment Tjoflat’s opinion parts Judge “[d]uring your them whole school life.” Id. any I other member of the neither nor Therefore, figure percent at 5. the 65 reflects C, joins, except its author Parts III B and experienced those who have that behavior necessary opinion’s are not essential during any year of their life. time reasoning holding or to the of this case. purport It does not to be annual data. language of Title IX nor its Neither Finally, Judge Tjoflat’s opin- III Part C of legislative history in- indicates survey point out that ion fails tended to saddle school boards and officials asked the students if of them who had liability for student-student harassed, as that term was been had no notice and school boards survey; a teacher defined had told accept- result from that such Only percent experience. about the reasons, those I do ing Title funds. For Survey sixty-five percent had. See AAUW I, II, Parts join holding of the Court and Report the reasons for not Whatever A, Judge Tjoflat’s opinion. III and IV of teacher, reporting to a such behavior in all the rarest instances failure to do so but BARKETT, dissenting, in Judge, Circuit implications has obvious for the existence of HATCHETT, Judge, and Chief HENDERSON, causes of action schools or the likeli- KRAVTTCH and Senior litigation. of actual join: hood Judges, Circuit opinion attempts fifth-grade criticism to deflect In this case it is student, Davis, sexually ha- survey by suggesting LaShonda about misuse of the geous or to which members at school an- terms conditions over six months rassed for exposed. student, of the other sex are not See Meri culminating in a sexual bat- other Bank, Vinson, 57, pled guilty in tor FSB v. U.S. her harasser Sav. tery for which 64, 106 91 L.Ed.2d 49 alleged that school S.Ct. It is also state court. (1986); v. of the esca- see also Franklin Gwinnett Coun completely aware officials were Schools, 60, 75, 112 ty 503 U.S. S.Ct. situation and took no Public lating gravity of the (1992) (hos 1028, 1037-38, majority 117 L.Ed.2d 208 to deter it. The meaningful action egregious even tile environment for student created matter how holds that no —or discriminatory cognizable a form of discrimination harassing con- teacher is criminal —the IX). prohibition be, cognizant under Title The absolute may no matter how and duct solely in in the text is framed teacher could contained supervisors it become —a protected. identity The directly regularly terms of who is it observe —-there simply perpetrator is- irrelevant under obligation to take action to would be no language: person “No ... shall ... be very law which was prevent it under the ..., participation discrimination in excluded from be denied passed to eliminate sexual of, subjected or to discrimina To reach this conclusion the benefits be public our schools. tion____” Thus, plain plain meaning of under the statute’s majority ignores the liability spirit purpose. language, hinges I whether the Title IX as well as its statutory recipient appropriate grant maintained educational en suggest that under precedent, any person Supreme Court vironment excluded analysis as well as benefits, participating, action. denied them or sub Davis has stated a cause of jected them to discrimination. statutory analysis principle first statute, interpret Should one need to it plain requires that a statute be accorded initially must be noted that Title text. It is well established meaning of its “[cjourts designed protect from sex individuals dis must assume meaning denying crimination federal financial aid ordinary of the words intended the used, to those institutions that clearly expressed legis- educational bear and absent responsibility sexually discriminatory contrary, language is lative intent to practices. University Chicago, v. dispositive.” McNary, Cannon generally Gonzalez (internal (11th Cir.1993) 441 U.S. 704 & n. (1979) omitted). n. (citing has & 60 L.Ed.2d 560 citation (1971)). Cong. strong “It “only most Rec. 39252 is emphasized that extraordi- comprehensive ... contrary measure which is needed nary showing of intentions from if history] justify provide legal we are to women with solid [legislative limitation protection they meaning’ statutory lan- as seek and train- ‘plain on the of the education ” States, ing for later careers.... Id. at 704 n. guage.” v. United Garcia (quoting at 1961 n. 36 Birch 83 L.Ed.2d 472 S.Ct. Sen. (1972)). Thus, Bayh, Cong. provides Reс. 5806-07 The text of Title IX, interpreting is no doubt pertinent part: “[t]here give scope that we are to that its [it] shall, person No in the States United dictate, origins sweep we must it a accord sex, partic- be excluded from the basis language.” broad as its North Haven Bd. in, of, ipation be denied benefits Bell, Educ. subjected to discrimination under edu- (internal (1982) 1912, 1918, 72 L.Ed.2d 299 program activity receiving Feder- cation omitted). quotation marks al financial assistance---- 1681(a). Moreover, ambiguity Rights is no 20 U.S.C. There the Office of Civil Education, undisputed Department language. agency this It is that the the federal IX, County System recipient responsible in- Monroe School for enforcement of Title terprets statutory language It impose of federal financial assistance. is also well permitting an established that hostile environment sexual on school officials for severe, persis- harassment is a form of intentional discrimi- educational environment of tent, exposes pervasive peer nation one sex to disadvanta- it, phasizes “throughout long legisla- or should know about when know appropriate cor- fail to take immediate and history, tive the drafters of Title IX' never remedy it. action to See Sexual rective discussed student-student sexual harass- Harassment of Stu- Harassment Guidance: Majority Op. ment. ...” See at 1397. As- Students, Employees, Other dents School true, suming this to be the mere fact that 12,- Parties, 12,034, Fed.Reg. at or Third student-on-student sexual harassment policy guid- final The OCR’s 039-41 specifically in not have been mentioned the explains that: ance Congressional debates does not mean that it respond failure to to the exis- school’s encompassed Congress’s was not within of a hostile environment within its tence preventing intent of students from be- broad programs permits or activities an at- own “subjected ing federally to discrimination” in per- mosphere discrimination to of sexual programs. majority funded educational program results meate the educational suggests it is clear that was prohibited by Title in discrimination not concerned with student-on-student sexual IX____ Thus, Title IX does not make a legislative history harassment because the ha- responsible for the actions of school primarily focused on the issues of discrimina- students, rassing but rather for its own “admission[s],” tion “available services or failing remedy it once discrimination studies,” “employment an within institu- the school has notice. tion,” pertinent of none which were added).1 12,039-40 (emphasis Id. at Majority Op. claim case. raised this Notwithstanding the inter- administrative 1395-96, However, at this nar- statute, plain pretation of the as well as its view, row even the cause of action under meaning, majority concludes Con- Title IX for teaeher-on-student sexual gress did not intend to create a cause of recognized Supreme harassment IX for action under Title student-on-student Franklin, Court U.S. at largely analy- sexual harassment based on an 1028-29, legislative history. majority supported by em- at would not be sis of alleged noting interpretation analysis, 1. It is worth that the OCR’s Under this harasser need holding permit- agent employee recipient, of DCas schools liable for Title not be an ting peer sexual harassment is consistent with its theory because this under Title VI is interpretation Rights of Tide VI of the Civil Act general duty pro- premised recipient’s on a (1964), holding 42 U.S.C. 2000d nondiscriminatory environ- vide a educational allowing peer racial harass- schools liable ment. significant Supreme ment. This is because the 11,449. Id. at patterned Court has noted that "Title IX was Additionally, interesting to note that short- it is Cannon, VI.” U.S. at after Title VI, ly of Title former after enactment out, majority points at 1956. As the the lan- recognized that officials must Fifth Circuit school identical, virtually guage of the two statutes is steps power prevent take their racial within Supreme Court and the has held that should among students. In United States interpreted way. Majority in the same Educ., County Bd. 380 F.2d 385 Jefferson Cannon, Op. (citing at at 1398-99 Cir.1967) (en banc), binding precedent which is 1957-58). 99 S.Ct. at The OCR issued An Inves- Prichard, circuit, City in this see Bonner tigative on Racial Incidents and Guidance (en banc), (11th Cir.1981) Against Harassment Students Educational In- desegregation appeals court entered a model providing, of a ”[T]he stitutions in 1994 existence spirit which'complied decree "the letter and created, racially hostile environment that is en- 1964”, County, Rights of the Civil Act of Jefferson couraged, accepted, tolerated or left uncorrected provided 380 F.2d at decree in rele- 390. The by recipient also constitutes different treatment part: vant race in violation of VI.” See on the basis of Title authority re- Within their school officials are 11,448, 11,448 (1994). Fed.Reg. Further- persons sponsible protection exercis- for the more, obligation the OCR has stated that the ing rights affected this under or otherwise remedy racially school districts with notice to shall, They delay, appro- without take decree. applies "regardless of the hostile environments priate regard action with identity person(s) committing of the the harass- crew, with the success- teacher, student, staff member who interferes grounds ment—a plan. operation interference worker, ful Such neighborhood teenagers, a vis- cafeteria threats, harassment, intimidation, team, include speaker, parents shall iting guest baseball acts, 11,450. explained by words or and similar behavior. hostile others.” Id. at As Id. at 392. OCR: legislative majority’s history. dis view of harassment constitutes intentional high-school considered a IX, Franklin Court crimination in violation of alleging Title IX suit that a student’s teacher prohibit Spending Clause does not a cause of had harassed assaulted her and action for sexual harass teacher-on-student officials, knowledge had who IX. Similarly, ment under Id. misconduct, had failed to intervene. Id. case violation of Title IX Surely 112 S.Ct. at 1031-32. intentional because the school know board majority suggest would not that the cause of ingly permitted subjected a student to be recognized that the action a hostile environment sexual harassment. simply Franklin does not exist because See, Dist., e.g., City Doe v. Petaluma Sch. specifically legisla- mentioned in the was (N.D.Cal.1996) F.Supp. 949 1427 Moreover, history. majority’s tive inter- (holding that hostile environment legislative of the statute pretation based harassment constitutes “intentional discrimi .history suggest using would that the un- nation,” and that schools are liable under words qualified “discrimination under ed- Title IX know or know when should program” Congress only ucation intended to about student-on-student sexual harassment admissions, cover the narrow areas of ser- action); prompt and fail to take remedial vices, employment. This contravenes Kortright Bruneau v. Sch. South Central plain meaning both common sense and the (N.D.N.Y.1996) Dist., 162, F.Supp. 935 172 the words of the statute. (recognizing school’s failure to take Furthermore, majority contends that response corrective action to hostile envi may authorizing Title not be as construed by peers despite ronment created actual no cause of school action for a board’s failure subjects liability tice of harassment it to for remedy student-on-student sexual harass- discrimination, interpretation ment because such an intentional and therefore liability require- IX); conflict the notice of damages Burrow v. Post Clause, ment of the Spending Dist., ville Community F.Supp. Sch. 929 provision constitutional under which Title IX (N.D.Iowa 1996) in (holding that ostensibly Majority Op. was enacted.2 tentional discrimination be inferred 1398-99, (citing 1400-01 Pennhurst State evidence, totality from “the in relevant Halderman, 1, Hospital School & cluding of the evidence school’s failure to 17, 1531, 1539-40, 101 S.Ct. 67 L.Ed.2d 694 prevent stop the sexual de (1981)). However, clear it is that the school spite knowledge actual ha board would have sufficient notice of rassing behavior students over whom statute, based on plain meaning control”); degree some exercised imposes which unequivocally liability on Schs., City Oona R.-S. v. Rosa 890 Santa grant recipients maintaining an edu- (ex 1464, (N.D.Cal.1995) F.Supp. 1469 cational in which environment are students plaining discriminatory intent can subjected Further, to discrimination. suffi- found in of harassing “the toleration behavior cient provided satisfy notice was students, of male or the failure to take ade Spending prerequisite damages Clause for a quate steps punish peer harass deter action under Title IX set forth in Frank- ment”); Independent see also Canutillo lin, 503 112 U.S. at S.Ct. at 1037-38. (5th Leija, School 101 Dist. v. F.3d 406 explained In Franklin the Court — Cir.1996), denied, -, 117 cert. U.S. notice requirement damages un- actions (1997) (noting 138 L.Ed.2d 195 the Spending der Clause in Title IX cases is Supreme satisfied that “when where the Court referred violation was in- Franklin, tentional. Id. The found Court that since ‘intentional discrimination’ in Franklin, assumed, Supreme pur- 5 with- of the Fourteenth Amendment. For deciding, out pursuant discussion, assume, that Title IX was enacted poses of this I will like the Franklin, to the Spending Clause. 503 U.S. at 75 majority, authorizing provision was the & n. 112 S.Ct. at & n. 8. It is also Spending Clause. arguable provision pursuant that the was enacted Rico, (1st Cir.1988) referring form of discrimination Puerto 864 F.2d discrimination.”). impact (Title disparate than legislative history “strongly sug- other IX’s gests meant for similar sub Finding that Title IX authorizes a cause of apply stantive standards to under Title IX as harass- action for student-on-student sexual ‍‌‌​​‌‌‌​​‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌‌​​​​​‌​​‌​​​‌‌​‌​​​‍ment, VII.”); developed then follow the lead of other had been we should under Title see courts, Court, in turn- including the Virginia also Preston v. Commonwealth of principles to ing to Title VII delineate Community ex rel. New Rivеr College, 31 duty scope identify of the school board’s (4th Cir.1994); Mabry v. State of a cause of action under Title the elements Educ., Occup. Bd. Comm. Coll. & 813 F.2d part, requires IX. In relevant Title VII Cir.1987), denied, 316 n. 6 cert. employer steps to assure that take L.Ed.2d working employees of its is free environment (1987). Courts had also relied on Title VTI “sufficiently that is from sexual harassment3 evaluating when sexual harassment pervasive to alter the conditions of severe See, e.g., claims students. Moire v. Tem employment create an the victim’s abu- Medicine, ple F.Supp. Univ. Sch. Meritor, working sive environment.” (E.D.Pa.1985), aff'd, 1366 & n. (internal quota- at 2405 U.S. at (3d Cir.1986) (hostile environment sexu omitted). tion marks brackets harassment); Univ., al Alexander v. Yale 459 appropriate turn to It is Title VII be- 1, (D.Conn.1977), F.Supp. aff'd, 4 631 F.2d Supreme explicitly has relied cause the (2d Cir.1980) (quid pro quo 178 sexual principles explaining on Title VTI that harassment). constitutes intentional sexual harassment under Title IX: “discrimination” ease, Supreme Court’s Franklin Since Unquestionably, placed Title IX on the at least five circuit courts have found that duty County Public Schools the Gwinnett applicable Title VII standards are to stu sex, not to discriminate on the basis of dents’ Title IX sexual harassment claims. supervisor sexually “when a harasses Oona, R__S._, See Kate S. v. McCaf because of the subordinate subordinate’s -F.3d-(9th 13, 1997); frey, Aug. Cir. sex, supervisor that on the ‘discriminate[s]’ 495, County, Doe v. Claiborne 103 F.3d 514 Bank, basis of sex.” Meritor Sav. FSB v. (6th Cir.1996); Kinman v. Omaha Pub. Sch. Vinson, 2399, 477 64 [106 U.S. Dist., Cir.1996); 94 F.3d 469 see 2402, 91 L.Ed.2d We believe 49] Snow, 1226, 1232-33 v. 84 F.3d Seamons apply the same rule should when teacher (10th Cir.1996) (holding although n. 7 & sexually harasses and abuses a student. protect against IX environ Title does hostile Congress surely did not intend for federal schools, plaintiff ment sexual harassment moneys expended support to be failed to state a valid claim because he did sought by intentional actions it statute to allege question the harassment proscribe. sex); Murray was based on v. New York Franklin, 503 U.S. at 112 S.Ct. at Dentistry, University College Significantly, the Court relied on Mer- (2d Cir.1995) (“The 249 Court’s [Franklin ] itor, ease, a Title to resolve the issue. VII ..., ease, citation of a Title Meritor VII preceded A well established line cases support holding of Franklin’s central indi decision to use Title Court’s that, gender cates in a Title IX suit for principles resolving a Title IX case. VII based on sexual harassment of discrimination Franklin, Prior to courts had held such student, an eduсational institution principles applicable are in Title IX suits liable under standards similar to those held brought by employees of.educational institu- VII.”). See, e.g., Lipsett University applied in But tions. v. eases under cf. favors, or as "hostile 3. Sexual harassment involves unwelcome sexual ment benefits sexual advances, favors, requests harassment, for sexual and other environment” sexual which creates physical unwelcome verbal or conduct of sexu- Such intimidating, working an hostile or offensive en- 1604.11(a) (1991). al nature. 29 C.F.R. unreasonably interferes with an vironment that harassment constitutes actionable sex discrimi- Mentor, performance. work 477 individual’s workplace “quid pro quo” nation in the either as S.Ct. at 2404-05. U.S. 106 employ- sexual which conditions 1416 Dist., Indep. 80

Rowinsky Bryan Sch. hostile school takes v. environment (5th Cir.1996), action,”); cert. de no see also Nicole M. v. 1016 Martinez - nied, -, Dist, 1369, 1377-78 F.Supp. 136 Sch. 964 Unified (1996) (N.D.Cal.1997); (holding v. that student-on- William Penn L.Ed.2d 108 Collier Sch. (E.D.Pa. Dist., F.Supp. cannot be the ba- 956 1213-14 student sexual harassment 1997); Kentucky sis for a cause of action under Title unless Franks v. School plaintiff Deaf, F.Supp. (E.D.Ky.1996); demonstrates the school 746 Petaluma, F.Supp. 1427; responded to harassment claims Wright sexual dif- sex). Dist, ferently Community City based on Mason Sch. (N.D.Iowa 1996); F.Supp. 1419-20 Additionally, Ninth Circuit has recent Burrow, 1205; F.Supp. Oona ly analogy holding on an relied Title VII R._S._, 13; F.Supp. at 1467-69 n.& clearly that the law is established that school Dist, Berkeley Patricia H. v. Sch. Unified duty officials have a under Title IX to take (N.D.Cal.1993). F.Supp. But prevent steps reasonable student-on-stu Dist., Indep. see Park Garza Galena Sch. Oona, dent harassment. (S.D.Tex.1994). F.Supp. — R__S._, F.3d at---. More Thus, firmly supports case law apphcable over, virtually district every court to address applying principles Title VII to dehneate the IX, by analogy the issue has held scope of a school board’s under Title VII, imposes liability to Title on schools for remedy for failure to student-on-student remedy pervasive failure to severe and stu sexual harassment. See, dent-on-student sexual harassment. (“When Bruneau, e.g., F.Supp. at Notwithstanding support abundant employer remedy act to applying principles, majority fails to a hostile Title VII environment co-workers principles may created the em contends that Title VII not be ployer discriminates an in in applied exposition individual this case because “the Similarly, liability violation of Title depends [this] VII. Title VII under context, agency principles.” finds that in the Title IX when Majority Op. an See steps educational institution fails to take to majority 1399-1400 n. 13. The asserts that remedy peer-on-peer sexual it “[a]gency principles discussing are useless should be to the held hable harassed student for student-student harassment un conduct.”); discriminatory IX, for Bosley v. der Title students are agents because not Dist, Kearney F.Supp. R-1 904 Sch. of the school Id. argument board.”4 This (W.D.Mo.1995) 1021 (“Following the overlooks Supreme [Frank Court’s caveat lin logic, ] Court’s same rule as when an Meritor principles “common law [of employer agency] is held hable for a may hostile not be transferable all then- Meritor, work ap particulars environment under Title VII must to VII.” Title 477 U.S. at ply 72, 106 added).5 when a knowledge school district has a (emphasis S.Ct. at 2408 Un- majority argues 4. The analyze disparate that Title impact VII case law Title VII to a claim IX, VI, inapplicable is stating to Title because Title unlike under Title a “[t]he elements of VII, Spending disparate impact may Title gleaned by was enacted under claim be refer However, Clause. Georgia Court has relied ence to cases decided under Title VII.” VI, analyzing on Title VII Georgia, claims under State Title Branches v. 775 Conf. of 1403, of NAACP (11th Cir.1985). Thus, which spending pow- also was under the enacted 1417 the fact Comm'n, er. v. Civil Spending Guardians Service that Title Ass'n VII is not Clause statute S.Ct. importing 103 77 L.Ed.2d has not been a bar to its standards into (1983), VI, IX, example, template the Court found that Title formed for Title prohibition "subject Vi's importing of discrimination was therefore should not be bar to given to the construction the antidiscrimination its standards Title IX. into proscription Griggs VII in of Title Duke Power Guardians, VII, Judge Tjoflat explained, Co.....” 463 U.S. at S.Ct. 5. As has “Title Meritor, adopted interpreted requires employers The Court also Title VII's to take necessity” analyze disparate steps "business to defense sexual ensure that harassment does not impact involving permeate workplace. claims in a Title VI case To the extent that the placement. Harris, application agency Educ. v. principles Board law common 130, U.S. goal S.Ct. eliminating 62 L.Ed.2d frustrates Title VII's such Likewise, by effectively relieving employ- this court has utilized harassment — Franklin, workplace.7 approach, courts have der Mentor’s flexible employеr 74-75, 112 be liable held that an held at 1037-38. Just as a work failing under take action to Title VII ing required woman be should not “run a remedy by hostile environment created gauntlet of sexual abuse in return for the certainly agents non-employees, who are privilege of being allowed to work and make See, e.g., v. Las employer. Powell Meritor, living,” 477 U.S. at S.Ct. at F.Supp. Vegas Corp., 841 Hilton (internal omitted), citation a female stu (D.Nev.1992) (denying motion to dismiss required gauntlet dent should not to run a be blackjack employer claim that her dealer’s of sexual abuse in return for the privilege of faffing protect by violated her Title VII being allowed to obtain an education. In the by gamblers from sexual harassment at her context, employment historically women table, employer because “an could be liable power simply away not had the walk employees by for the harassment of sexual an environment that is made to be demean customers”); non-employees, including its ing, embarrassing, humiliating for them Services, Inc., Magnuson v. Peak Technical Similarly, because of gender. their vir (E.D.Va.1992) (hold- F.Supp. 512-13 impossible tually for female students leave ing employers of victim can be assigned escape their schools to environ faffing held to take action liable for corrective ment where are harassed and intimidat remedy by environment hostile created gender. ed on the their basis of Just as in City Henson non-employee); see also employment setting employees where are Dundee, Cir.1982) dependent employers on their to ensure (“The employee in which an environment workplace equality, so too students are de equal can rendered offensive in an works pendent on teachers and officials to coworkers, degree supervisors, by the acts of control the environment. workplace.”) even educational Addi strangers (empha- added) (internal omitted).6 tionally, regardless sis citations of its harassment — employers were held liable these eases girls in the source—subordinates classroom comply virtue of their own failure with the just as much Although as in the workforce. duty of eliminating discrimination a hostile environment can be created any theory of VII —not under vicarious liabil- supervises someone who or otherwise has ity for party. of a third the acts victim, power over the a hostile environment can also be created co-workers fellow

Application principles of Title VII also rec- power ognizes students who have no direct that a student should have the same relation protection employee ship in school that an has in the victim.8 whatsoever with And like pursuing ability responsibility goal— er of The and influence the to control behavior Faragher principles yield." City greater those must an in exists to even extent the classroom Raton, workplace, Boca the 1546 n. than in as students look to their J., (11th Cir.1997) (Tjoflat, concurring part, protection. guidance in teachers for well as for as dissenting part). damage caused sexual harassment also is greater arguably than in the classroom in the greater workplace, has a because the harassment Moreover, guidelines promulgated 6. under Title victims, longer young lasting impact and on its employer recognize may VII an be held and institutionalizes sexual harassment as ac- failing liable for to take corrective to rem- action Moreover, cepted "[a] behavior. nondiscrimina- edy environment created hostile a third tory to maximum intel- 1604.11(e) ("An environment is essential party. § employer See 29 C.F.R. integral growth part lectual and is therefore an responsible for the also be acts of non- ..., of the educational benefits that re- employees workplace in the where the em- inhibits, A (or ceives. abusive environment ployer agents supervisory employees) its prevents, if not the harassed student devel- knows or should have known of conduct and potential receiving oping her and full intellectual appropriate fails to take immediate and correc- program.” action.”). the most academic Id. at from the tive (citation omitted). Indeed, 7. there are where distinctions between courts, one, including 8.Numerous workplace, circuit this school environment and employer's emphasize have held failure to take “serve the need zealous that an protection prompt action after notice severe sex discrimination in the remedial H., F.Supp. pervasive by a schools.” at and sexual harassment co-worker Patricia 1292-93. an abu- remedy the victim’s and create VII, [environment] IX was enacted to Title

Title ” Harris, equali- environment,’ ensure sexual and sive [educational] that discrimination Mentor, ty public (quoting education. at 21 at 510 U.S. S.Ct. 2405-06) at 106 S.Ct. at 477 U.S. princi- that Title VII Having determined omitted). (internal determining citations scope of guide analysis our ples should plaintiff has established that an whether a IX, I board’s the school abusive, hostile or a court environment is allegations sufficiently that Davis’s conclude (1) particularly action. The elements a must be concerned plead a cause of (2) conduct; type prove frequency to succeed of the abusive plaintiff must (1) (3) is a physical- case are: that she severity; sexual harassment whether it is conduct’s (2) group; that she protected of a member ly threatening humiliating rather than harassment; sexual subject (4) to unwelcome was offensive; merely it unrea- and whether (3) sex; on was based that the harassment sonably plaintiff’s perfor- interferes with the (4) sufficiently se harassment was that the Harris, at 114 S.Ct. at mance. 510 U.S. alter the conditions pervasive so as"to vere or explained has these 371. and create abusive edu of her education objectively factors must be viewed both (5) environment; that some ba cational subjectively. If the conduct is not so severe liability has been estab institutional sis for pervasive person that a reasonable Mentor, 66-73, lished. See abusive, beyond find it hostile or 2405-09; see S.Ct. Harris Forklift Similarly, if purview. plaintiff IX’s does 20-24, Inc., Sys. S.Ct. subjectively perceive the environment to (1993); Lipsett, 126 L.Ed.2d abusive, actually then the conduct has not Henson, 898-902; at 903- F.2d at learning altered the conditions of her envi- 05. ronment, and there is no Title IX violation. true, alleged facts in the as Assumed Id., 21-22, 114 510 U.S. at infer- complaint, together with all reasonable case, In this the five months of therefrom, satisfy these elements. ences sufficiently per- harassment was severe and allegations question no There is First, to have of La- vasive altered conditions satisfy requirements. first three learning female, Shonda’s environment from both an is a of a as a member LaShonda (1) Second, objective subjective subject standpoint: and a protected group. she was form engaged of G.F. abusive conduct toward La- unwelcome sexual (2) occasions; of a na- physical eight conduct “verbal and Shonda on at least 1604.11(a). Third, ture.” 29 C.F.R. sufficiently severe to conduct was result clearly harassment LaShonda faced was charges against criminal G.F. to which he (3) the basis of her sex. court; conduct, pled guilty in state sex, groping requests such recognize requirement, the fourth I As to physically threatening humiliating in an that a hostile environment educational (4) offensive; merely rather than by simple be- setting is not created childish unreasonably conduct interfered with La- utterance, com- havior or an offensive performance, resulting in Shonda’s academic ment, Rather, IX vulgarity. is vio- grades “[wjhen the substantial deterioration of her environment] lated the [educational alleged go health. The facts and emotional permeated ‘discriminatory intimi- is beyond simple horseplay, dation, ridicule, ‘sufficiently vulgari- far childish insult’ that is ties, flirting. pervasive severe or to alter the conditions adolescent Dundee, denied, 1213, 2693, See, e.g., City v. cert. 512 U.S. 114 S.Ct. 129 actionable. Henson (1994); (11th Cir.1982); Signal, 824 682 F.2d see also L.Ed.2d v. Allied Kauffman Inc., Div., (6th Cir.), DeAngelis Municipal v. Police Autolite 970 F.2d El Paso Officers denied, Assoc., (5th Cir.1995); Nichols cert. 51 F.3d Co., Frank, (9th Cir.1994); (1992); Weyerhaeuser Carr v. L.Ed.2d 701 Baker v. F.3d (10th Cir.1990); Corp., Allison Gas Gen. Motors 903 F.2d 1345-46 Hall v. Turbine Div. Co., (7th Cir.1994); 842 F.2d 1015-16 F.3d Karibian v. Co Gus Construction (2d Cir.), (8th Cir.1988). University, lumbia final Finally, I believe that the fifth and Board’s America, basis

element—-whether UNITED STATES shown, Plaintiff-Appellee, been has likewise been has VII, sufficiently alleged. Under Title an em- ployer may be held hable for a hostile envi- Vytautas GECAS, Defendant-Appellant. harassment created ronment of sexual employer knew or should co-worker “the No. 93-3291. question have known of the Appeals, United States Court of prompt action.” and failed to take remedial Eleventh Circuit. 1538; Henson, Faragher, 111 F.3d at 905; Meritor, see also 477 U.S. at Aug. By analogy, at 2408-09. may be held this instance the school board if it of the

hable knew or should known timely to take remedi-

harassment and failed cases, employee In Title VII

al action. employer that the knew of

can demonstrate “by showing

the harassment that she com-

plained higher management of the harass- pervasiveness by showing

ment or gives rise to the inference knowledge knowledge.” or constructive (citation omitted).

Henson, 682 F.2d at 905 case, alleged

In this Davis has that she told principal higher manager level —a —of the harassment on several occasions. She alleged separate that at least three

teachers, principal, had addition repetitive knowledge from La-

actual and

Shonda, mother, Fi- and other students. her

nally, despite Davis this knowl-

edge, school officials failed to take

prompt remedial action to end the harass- ‍‌‌​​‌‌‌​​‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌‌​​​​​‌​​‌​​​‌‌​‌​​​‍allegations regarding institu-

ment.9 These liability, allega- other

tional as well as the

tions, prima are sufficient to establish a facie

claim under Title for sexual discrimina- action

tion due to the Board’s failure to take remedy hostile environment. reasons, foregoing I

For all the

reverse the district court’s dismissal

Davis’s Title claim the Board. schools, provided any policies complaint during the time and had respond policy pro- training employees Board had no to its on how hibiting in its student-on-student sexual harassment. the sexual harassment students

Case Details

Case Name: Aurelia Davis, as Next Friend of Lashonda D. v. Monroe County Board of Education

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 21, 1997

Citation: 120 F.3d 1390

Docket Number: 94-9121

Court Abbreviation: 11th Cir.