*3 confronted her after the conference and GARWOOD, Before BARKSDALE threatened her with “trouble” if she was DENNIS, Judges. Circuit lying about her accusation. BARKSDALE, RHESA HAWKINS Afterwards, Leija speak any- did not Judge: Circuit about began the abuse until she counsel- one. interlocutory appeal by This the Canutillo ing parents, sessions in 1993. Her as next Independent District turns School on wheth- friends, against then filed this action er, Title IX of the under Education Amend- (CISD) Ti- under Perales §§ seq., ments of 1681 et U.S.C. IXtle and under 42 U.S.C. 1983. Sum- strictly school district is liable for teach- mary judgment granted was CISD on the student; and, not, of a if er’s sexual abuse § 1983 claim. being whether another teacher’s told about claim, During the trial of the Title IX the abuse is sufficient notice to the school Leija’s the close both of case and of all the possible liability district for under oth- some evidence,- judgment as a CISD moved er standard. We REVERSE the denial of alia, matter of law on the basis inter judgment the school district’s motion for as a Leya produced had not evidence discrimi- matter of law on the Title IX claim and natory part. intent on its Both motions were REMAND. denied, given special interrogatories and the jury premised instead on CISD’s I. “negligent agent” theory: Canutillo, The school district is located Mendoza, [CISD], agent Did Pam as an Texas, and receives federal financial assis- or, care, know in the exercise reasonable School, Elemеntary tance. At the Canutillo known, should she the sexual Leija assigned in Rosemarie 1989 to the by Tony harassment or abuse Perales second-grade homeroom class of Pam Men- Leija? against Rosemarie physical doza and the class education/health Tony Perales. steps Did Pam take the a reason- Mendoza part daily person Perales’ classes were a able would have taken under the week, health, taught circumstances to halt the curriculum. Once he same similar of, subjected in, the benefits or be by Tony be denied Pe- or abuse pro- any education Leija? to discrimination against Rosemarie rales activity receiving Federal financial gram or Leija, award- jury returned verdict assistance_” 1681(a). There 20 U.S.C. damages. compensatory million in ing $1.4 under Title IX implied right action is an sought judgment Post-verdict, again CISD on the of victims of basis favor discrimination moved, in alterna law and as a matter of Chicago, 441 sex, University Cannon Among things, it tive, for remittitur. 1946, 1964, 60 L.Ed.2d Leija had not shown again maintained (1979), may monetary damages part. on its intentional violation, Frank awarded for its intentional motion, court the. district denying the Sch., County Pub. lin Gwinnett held, compre ain most changed course and 1028, 1037-38, 60, 74-76, . on liabil that its instructions opinion, hensive (1992) *4 208 L.Ed.2d was in unnecessary CISD ity were appeal, this we assume purposes For actions. 887 strictly for liable Perales’ stеad in the basis of sex” that discrimination “on However, (W.D.Tex.1995). 947, F.Supp. 953 by a of a student teach cludes sexual abuse Title that court was concerned because the 75, 1037-38. See id. er. dis liability might expose school IX strict CISD, does contend unlike insolvency”, amici it held “potential tricts to Taylor Indep. Sch. otherwise. See Doe expenses damages be limited should Cir.) (en banc) (5th Dist., 443, 477 health treatment medical and mental for (Jones, J., (citing for dissenting) Franklin And, be Id. at 956. special for education. accepting federal proposition special interrogatory was damages cause the potentially liable” funds itself “renderfs] limited, re- treated CISD’s the court not so teacher-student Title IX claims for trial on one for new mittitur motion as harassment), cert. sub nom. denied at 957. The Lankford granted Id. damages and it. — —, 70, Doe, 115 130 S.Ct. U.S. under 28 U.S.C. later certified its order court (1994). Franklin, 503 25 But see 1292(b) appeal, and this for immediate 62-63, (limiting at 1030-31 S.Ct. U.S. to do so. granted CISD leave court implied question presented to “whether supports Title IX ... right of action under II. monetary damages”); Rowinsky v. claim for Although presents several CISD Dist., 1006, F.3d Bryan Indep. Sch. turns on interlocutory appeal points, this (5th Cir.1996) in (“[A]ny language n. 11 liability under Title standard whether regarding Franklin teacher-student is strict lia abuse for teacher-student sexual dictum.”), cert. de pure not, bility; and, the notice if it is — 165, nied, —, S.Ct. teacher, Mendoza, to hold the sufficient (1996). L.Ed.2d 108 deciding, we liable. In so school district motion of CISD’s de novo the denial review A. law, using the judgment as a matter dis applied adopt same standards those the first to The district court was Turner, 18 E.g., Conkling v. liability trict court. for school dis- as the standard strict Such sex- trict Title IX for teacher-student if, viewing the after judgment is have ual abuse. Three standards been to the light briefly most favorable them record utilized. We summarize before nonmovant, “legally sufficient evi- liability. there is no addressing, rejecting, strict jury dentiary basis” for a reasonable (quoting Id. prevailing party.
found for the 1. 50(a)). Fed.R.Civ.P. generally approaches followed The three those used Title VI Civil part: provides relevant §§ et shall, 2000d Rights Act of U.S.C. on the person in the States “No United Act, 42 of that U.S.C. sex, seq.; for Title VII participation basis excluded I-103, seq.; pursuant §§ et to Restate 2000e Sch. Dist. (W.D.Okla.1993). (Second) Agency
merit 219. b.
a.
Leija also disclaims the district court’s
Leija
urges
prove
must
CISD
liability/limited
strict
damages
approach.
engaged
itself
intentional
Leija asserts that
liability princi-
Title VII
sex-based discrimination.
Its basis is the
ples
govern
instead. The basis for
“pat-
that Title IX
statement
Cannon
approach
is the Franklin Court’s reli-
Cannon,
terned”
after
VI.
U.S. at
Bank,
ance on
Savings
Meritor
FSB v. Vin-
noted,
Va ex strictly student”, the court held CISD young (4th 203, 206-07 31 F.3d Leija. Id. sexual abuse of for Perales’ liable reasons, reach following we For the at 955. e. conclusion. opposite superi- respondeat a variation As “prece recently that explained (Second) Agency Our court or, Restatement Congress enact suggests” that strongly dent liability stan possible provides § third Spending Clause pursuant to its ed Title IX liable for his servant’s is not a master dard: 1, I, 8, cl. and not § art. power, U.S. Const. employ scope of outside torts committed Rowin § Fourteenth Amendment. 5 of the negligent or master was unless “the ment Although the n. 14. sky, F.3d at 1012 (Second) Agency Restatement reckless”. to decide had earlier refused Franklin Court standard, (1957). 219(2)(b) this Under Franklin, issue, at 75 n. 503 U.S. abuse was within the sexual gave cogent 1037-38 n. our court teacher, S.Ct. employment as a scope of Perales’ interpreting Title IX the same reasons only it if for his actions would be liable CISD interpreted, Spending way Title VI is preventing, care use reasonable failed to including lan legislation, the identical knew, Clause remedy, problem failing statutes, fact that guage of the two known, existed. or should Hirschfeld VI, and the Su IX was modeled after Title Dep’t, Mexico Corrections New to “attri hesitance preme traditional Cir.1990) Court’s (interpreting act under its Congressional intent to bute] ease); H. v. San Elizario see Rosa Title VII Amend authority the Fourteenth to enforce Dist., F.Supp. Indep. Sch. n. 14 Rowinsky, at 1012 Hancock, ment.” (W.D.Tex.1995); Hastings Hosp. v. (citing Pennhurst State & Sch. (D.Kan.1993). Halderman, S.Ct. (1981)). 2. *6 Pennhurst, foregoing In 451 U.S. at approaches,
Rejecting typical spend- described the liability as the Court adоpted strict court the district n liability return ing power “[I]n as a contract: for teacher- statute IX standard the Title funds, agree comply F.Supp. at 954. for federal States abuse. 887 student sexual But, jury federally imposed conditions”. noted, until not do so after As it did “unambigu- clear and extremely large Congress must be compensatory rendered its obligations it any had or ]” 948. No about conditions damages ous[ Id. at court verdict. recipient of such funds. imputing imposing in on the adopted approach previously “By explained, Title IX Id. As the Pennhurst Court liability district for a to a school Moreover, Congress speak with a clear subse insisting claim. hostile environment voice, their opin to exercise rendering court its enable States quent to the we district knowingly, cognizant of the conse- ion, suit. only court has choice one other followed Thus, in Sch., participation.” Id. F.Supp. quences of their Bolon v. Rolla Pub. Pennhurst, (E.D.Mo.1996). legislative general statement of That court also cer 1427-28 in rights” interlocutory findings characterized as a “bill of appeal. Id. tified its order for impose en- was insufficient the statute at 1433-34. in a obligations participants on forceable hand, court the district In the case 18-27, 101 Spending program. Id. at Clause difficulty opined that a would student at 1540-45. S.Ct. liability meeting of the usual standards IX is a Assuming, arguendo, abuse “occurs or at least most sexual beсause statute, Congress must be Spending Clause secrecy”; and attempted cover of expressing school districts unambiguous acts of the of the “unless the receipt to the it has attached strictly imputed to the the conditions fully and district are statute, in the district, Nothing funds. potentially inopera- federal becomes however, places a school on district of this tive.” 887 at 953. Because strictly its teachers’ for harm that it liable proof problem, “the risk of will fact, criminal acts. In the conditions Con- eral and state funds and property taxes lev- gress imposed on Title IX recipients are ied governing the local body. We refuse limited to anti-discrimination factors impose those necessity of a “Title IX assess- sparse wording; found its there is no ment” in spread order to the risk of million- standards, liability mention of intent, such as dollar verdicts. As horrible a crime as child knowledge, actual gross negligence, or lack is, abuse dowe live society; risk-free diligence, of due let alone the imposition of it “public contorts policy” to suggest liability without fault. 20 U.S.C. 1681. communities should be financially held re- sponsible (strict in this manner liability)
It
for
would be difficult to conclude that Title
such criminal acts of
IX,
teachers.
which
whisper
contains no
of strict liabili-
ty, creates this
obligation,
enforceable
where-
Continuing with this product manufacturer
provision
as thе
Pennhurst,
at issue in
which analogy, another
product
reason behind
man-
part
statute,
of the text did not.
ufacturer strict liability is that the manufac-
Pennhurst,
13-14, 18-27,
other, teacher. 1. might be otherwise those who equally to plies course, appropriate standard if the Of the future from subject notice, to abuse VI, ab to Title even analogous were district, teacher, from others. well as as involvement direct sent liability district. See impute to the would not lia- suggests that strict court district undisput R.L.R., It is F.Supp. at 1534. vigilance “heighten[] bility will involvement was no such there ed at all levels ] cause[ district Therefore, would Title IX claim CISD. problem.” 887 to the system to alert it to how turn this standard. We fail under believe, It is difficult F.Supp. at 955. liability akin to standard under would fare nationally publicized following lengthy and (Sec of the Restatement Title VII heightened trials, the otherwise child abuse (Needless ond) say, brevi Agency. abuse, and the increased child awareness especially as analogy, Title VI ty of this abuse, for student IX actions filings Title discussion length compared to is not or teacher district any to mean follows, not be understood problem of to the extremely alert already opinion, view this we purposes of But abuse. teacher-student validity other two than those having less as alertness, vigilance, event, explained, standards.) are insufficient and awareness shield ruin potential financial from school district 2. liability ap- court’s strict the district VII or the standard Under damages it limited with the proach, knew, even if it be liable district would a school liability con- Strict that standard. couples to conduct known, the teacher’s should have being the edu- the school action. See
verts take failed to remedial insurer as well. into their Police DeAngelis children Paso Mun. cator of El Officers Cir.) (Title VII), insurer, arguable Ass’n, it is most And, if it is their — U.S. —, denied, now more cert. role as educator —needed that its (1995); Hirschfeld, 916 F.2d at suffer, great- and suffer most than ever—will 219). (§ Restated, stan under either ly- notice, alia, dard, inter constructive actual Court has Supreme It true that for Title a sufficient basis would constitute action private cause of implied found Leija agree on liability. Both CISD and is silent. IX, though the statute even point. Cannon, at 1964. 441 U.S. And, that the Court discerned it is also true a. provide Congress part of on the an intent standard, Therefore, under either a Title viola remedies for
all must such To whom question then becomes: no tion, makes mention although statute that, at the asserts givеn? CISD notice be Franklin, of them. employee must least, management-level But, is a strict at 1035-38. S.Ct. Leija the teacher’s actions. have notice *8 far; not take it. step we will too that, reports long as the student as counters to re “appropriate” to someone
the actions has element complaint, the ceive the B. been satisfied. on the facts infra, and based As discussed context, court has our Title VII only no- (especially this case actual notice employer that an has explained teacher), it is neces- not complains was to another tice when of harassment rejection beyond sary our v. Inter management”. now to “higher move Waltman to (5th 468, Co., liability standard 478 liability adopt Paper 875 F.2d strict national Cir.1989); Electrospace Nash v. type at Lei- see also of the hand. for Title cases Cir.1993) (5th 401, Inc., Sys., 9 F.3d 404 ja’s fails under each claim complain to plaintiff to (discussing failure of commonly applied. types three
401
“company hierarchy5’). A
plaintiff
Title VII
conduct,
that
person
must fail to
can
show
“showing
constructive notice
take remedial action.
pervasiveness
harassment,
of the
gives
which
For purposes of
appeal,
we need not
rise to the
knowledge
inference of
or con
decide, and thus leave for
day,
another
Waltman,
knowledge”.
structive
F.2d
875
question
(or
of whether the appropriate
low-
Henson,
905). (As
478 (quoting
682 F.2d at
level)
est
management-level person to
no-
infra,
discussed
there is no evidence
tified is a Title IX coordinator, vice-principal,
the time of
Leija,
the assaults on
Perales’
principal, superintendent, or school board
pervasive
conduct was so
that a reasonable member. But
Rowinsky,
Other circuits have
“board
adopted a
had knowledge
similar defi-
of the harassment and
nition for
failed
Nichols,
Title VII
to
action”)
take actual notice.
corrective
(“The
added).
(emphasis
F.3d
proper
Obviously,
analysis
question
employer
strongly
liability in
linked to
facts and circum-
stances,
including
cases is
management-level
applicable
what
law,
state
clear,
each case.
knew or
It is
known....”); Hall,
however, that,
should have
to
even
begin
qualify
to
F.2d at
“management-level”,
1015-16
(explaining
employer
person must
had actual
have
authority
some
notice because foreman
over em-
was told
ployees,
harassment);
including,
Dole,
perhaps,
251,
power
Katz v.
to
F.2d
hire, fire,
(4th
Cir.1983)
discipline.
This condition
(describing personnel
stems
from case law
employer
and the
put
on
language of
notice of
Title VII
harassment as
itself.
“supervisory”); Henson,
There is no reason to define actual notice
aware of this distinction. See
differently
Moham
in fact,
Title IX context.
Steego Corp.,
(5th
Cir.1993),
the one Title
by Leija
VII case cited
denied,
cert.
support her “appropriate employee” conten
(1994).
when c. for hos- ease prima plaintiff’s VII facie “the em- that tile environment assumptions apply these we Accordingly, the known have knew or ployеr determine to to record this conclusions reme- prompt take to failed requisite had the district the school Ac- at 593. DeAngelis, 51 dial action”. stated, we As notice. constructive or actual “higher-management term cordingly, the not. it did that hold individuals only those includes personnel” authority gym/health job-related not in Perales’ degree Leija was some with and, in year; school employees. after the other over class year, grade Leija’s third during early System, Electrospace Thus, in Nash Perales, family Canutillo. left and her she employer Inc., explained our court stu sexually abuse his however, continued known, of not have know, and could did not complained parent In October dents. com- plaintiff] [the “until the harassment elementary assistant-principal the the address authority with to those plained sexually molested had Perales school Nash, (empha- at 404 problem ”. the investigat allegation was daughter. The her added). And, Construc- Gus Hall sis his inter ed, was warned about Perales Co., Eighth Circuit found the tion February In students. with the action notice of actual company had construction abuse, complained girls more four wit- had a foreman when environment hostile re promptly who principal, time to the the about complaints and received nessed superinten the CISD ported the incidents to Hall, 842 F.2d harassing conduct. sеxually suspended Perales. immediately dent. CISD at 1016. the investigated officials enforcement Law principles sum, if Title VII subsequently indict matter, Perales was liability, school Title IX applicable child, aof abuse of sexual ed convicted knowledge of actual not have does him. whereupon CISD terminated until sexual harassment dur- Therefore, concerning ac- the time frame remedial take authority someone occurred, Leija abuse of may well be that which the Again, ing notified. tion is Le- following: neither a member record reflects must that someone anyone at the school ija mother nor her told board. teacher) (a Perales what Mendoza besides b. manage- doing; was not Mendoza was authority any have did not event, Mendo ment-level—she any it is clear including to authority, or other notice, Perales over did not have za, put on the teacher action, so that remedial elementary requisite take authority. At the requisite constitute did not notice to her of a capacity school, only she served board, the CISD; no member of not serve did Mendoza teacher. classroom superintendent, the assistant superintendent, superintendent, aas board or the school assistant-principal principal, the principal, assis superintendent, assistant noti- personnel were management-lеvel And, hand the CISD student tant-principal. and, no actions; there of Perales’ superinten fied the assistant designated book perva- so then his conduct was Mendoza, evidence dent, the CISD juror could conclude a reasonable sive that (and stu to receive person coordinator of the abuse. known” “should no that CISD simply had Mendoza complaints). dent nor facts, actual had neither or, these CISD that On authority Perales job-related over *10 constructive notice of Perales’ sexual abuse able trier of fact could have found from the Leija. Consequently, for stan- evidence that the male teacher’s conduct con- dards akin to Title VII or with that quid pro quo harassment, as stituted as well as VI, earlier for discussed Title the Title IX hostile harassment, environment of the fe- claim was insufficient aas matter of law. male grader, second for which the school regardless is liable of whether knew or should have approved III. known or the harassment. reasons, For foregoing the Title IX claim (Accordingly, fails. Finally, we do applying address recently not developed issues.) damages Therefore,' we RE- precepts, harassment I conclude that (1) VERSE denial of CISD’s motion the plaintiffs-appellees presented suffi- judgment claim, as a matter law on that cient evidence from which a reasonable trier and entry REMAND for judgment fact fa- could conclude that the school district vor of the school district. had notice of the harassment, which it failed to adequate take remedial steps to
REVERSED and REMANDED.
arrest and prevent, and therefore could be
held liable for damages
by
caused
DENNIS,
Judge,
Circuit
dissenting:
discrimination;
(2),
in the
respectfully
I
dissent.
alternative, a reasonable
trier
fact could
First,
disagree
I
majority’s
with the
failure
find that the male teacher’s conduct consti-
to consider and
juris-
follow the substantial
quid pro
tuted
sexual harassment of the fe-
prudential
regulatory
developments that
second-grade
male
and,
student
accordingly,
place
taken
IX
under Title
since this
judgment
if
is not
rendered
this
level
court visited
changing
this fast
legal
area
the plaintiff-appellees,
the case
ISD,
Rowinsky Bryan
Second, I
agreed
could have
with the ma-
jority’s result had
presented
this case
only
IX provides
person
that “no
in the
the issue of
complaint
whether a
shall,
hostile United
sex,
States
on the basis of
...
environment sexual harassment
subjected
was made to
discrimination under
ed
management-level
employees.
school
program
How- ucation
or activity receiving Federal
assistance_”
ever, the
appealed
certified
fairly
order
1681(a).
financial
20 USC
includes other
issues
should be ad-
Sch.,
In Franklin v.
County
Gwinnett
Pub.
viz.,
(1)
court,
dressed
503 U.S.
404 Cir.1996); Coun- (10th v. Monroe Davis 1232 sexual discrimina- of reviewing claims (11th Cir.1996), Educ., 1186 74 F.3d IX, by ty Bd. stu- Title under brought of
tion banc; Murray v. vacated, reh’g en pending generally have courts employees, dents Dentistry, 57 College Univ. New York legal standards same adopted the of (2d Title Stu- VII. F.3d claims 243 such applied to Public Omaha v. Kinman Claims: dent held have majority those circuits of A (8th 463, 467-68 District, F.3d 94 School viz., fifth the to establish in element— order 1226, Snow, F.3d 84 v. Cir.1996); Seamons insti for the educational ais basis that there Cir.1996); Coun- v. Monroe (10th Davis 1232 principles apply: VII tution’s —Title Cir.1996), (11th Educ., 1186 74 F.3d Bd. ty of the school (1) must plaintiff show The banc; Murray v. reh’g vacated, en pending of the harass known have or should knew Dentistry, 57 College York Univ. New of prompt to take and failed question ment in Hot, Sexy Cir.1995); v. (2d Brown 243 F.3d (2) action; can the student remedial (1st Productions, Cir. 525 68 F.3d and Safer known” or should satisfy the “knew 709 College, 35 F.3d 1995); v. Vassar Yusuf adequate demonstrating that requirement Bd. State Cir.1994); v. Colo. (2d Roberts of was concerning the harassment information (10th Cir.), 824, 832 998 F.2d Agriculture, school management-level communicated 580, 126 1004, 114S.Ct. denied, 510 U.S. cert. pervasive showing that the employees or Kearney R-1 (1993); Bosley v. 478 L.Ed.2d ato rea gives rise the harassment ness of (W.D.Mo.1995); F.Supp. 1006 Dist., 904 Sch. knowledge or construc of inference sonable Dep., 709 Ed. NYS v. by Salahuddin Sharif v. Sch. knowledge. Kinman Omaha tive Tem (S.D.N.Y.1989); v. Moire F.Supp. 345 County Bd. Dist., Davis v. Monroe supra; Med., F.Supp. 1360 613 Sch. ple Univ. Murray New York Univ. Educ., v. supra; (3d Cir. F.2d 1136 (E.D.Pa.1985), aff'd, 800 v. Dentistry, supra. Accord Doe College of v. Univ. Brine 1986); Employee Claims: Dist., F.Supp. 1415 City 949 Sch. Petaluma (8th Cir.1996); Lip 271, Iowa, 275-6 90 F.3d Berkeley (N.D.Cal.1996); Uni H. v. Patricia Rico, F.2d Puerto v. sett Univ. of (N.D.Cal. Dist., F.Supp. 1288 Sch. fied (1st Cir.1988); v. Comm. Preston 896-98 Community Sch. 1993); v. Postville Burrow (4th Cir.1994); Mabry v. Va., 31 F.3d 1996); (N.D.Iowa Dist., F.Supp. 1193 Occu Colleges and Community Bd. State Kortright Central Sch. v. South Bruneau (10th Cir.1987), Educ., F.2d pational (N.D.N.Y.1996); Lin Dist., F.Supp. 162 denied, 484 U.S. cert. Penn., 1996 the Univ. v. Trustees son (1987); Taylor, v. Doe L.Ed.2d cf. (E.D.Pa.1996). court The WL 479532 Cir.1992) (“[T]here no (5th 137, 149 F.2d Snow, the disposed of supra, v. Seamons en the work between meaningful distinction his solely on the basis claim plaintiffs which environment vironment and sexual dis constituting allege facts failure for in the forbid would notice is addressing the without crimination latter.”) init and tolerate mer context sue. of a addressing elements circuits applied standards Title VII That claim based harassment sexual student’s harassment Title analyzing a agree that hostile educational also evident a student claim (1) student that the prove: must plaintiff Although Supreme Court. decisions (2) that group; protected belongs to issue expressly address did not the Court unwelcome subject student was County Public Gwinnett Franklin v. was (3) harassment; Schools, (4) sex; that the based on Title IX (1992), holding to alter so pervasive severe sufficiently damages compensatory awards authorizes education student’s the conditions the Court generally, plaintiffs environment; educational an abusive create authority principles. invoked VII liabil- (5) for institutional that some basis student’s high school involved Franklin Omaha Kinman established. ity has been sexually ha- been that she had allegations Dist., Public Sch. and that by a teacher assaulted Snow, rassed Cir.1996); Seamons officials with actual knowledge of impact White, discrimination. Justice an teacher’s misconduct had faded to intervene. nouncing judgment Court, explicit *12 Id., U.S. at at S.Ct. 1031-32. ly noted that the holding damages were rejecting argument specific the that the not available for unintentional discrimination language of give did not educational disparate based on impact open left the issue institutions sufficient of their of money whether damages would be appro damages for such intentional discrimina- priate in of cases “intentional discrimina tion, the Franklin Court stated: 597, tion.” Id. at Thus, at 3230.
Unquestionably, Title
Justice
IX,placed
White
implied
clearly
[such
on
that “intention
duty
institutions]
al
the
not
discriminate
discrimination” is
to
discrimination other
sex,
on the basis
and
than
“when a
supervisor
based on disparate impact. This
sexually
harasses
section of
subordinate
Justice
because of
White’s opinion
joined
was
sex,
the subordinate’s
Justice
supervisor
Rehnquist.
‘dis-
Additionally, the dis
criminate[s]’
the
on
basis of
tinction
sex.” Meritor
between intentional discrimination
Bank,
Sav[ings]
Vinson,
FSB
disparate
unintentional
U.S.
impact discrimi
57, 64,
2399, 2404,
nation
implicit
in the concurring opinions
(1986). We
believe the same
O’Connor,
should
dissents
613,
rule
Justices
id. at
apply when
a teacher
sexually
Marshall,
S.Ct. at
harasses
at
id.
and abuses
Congress
a student.
S.Ct. at
surely
Stevens,
Brennan and
Blackmun,
did not
intend
moneys
federal
to
id.
at
worker
has
discrimination,
ambiguity
intentional
at - - -.
249-50, 114 S.Ct.
amendments
by the 1991
resolved
now been
evidently was based
assumption
Court’s
Id.
them.”
applying
the cases
classification
its own
discrimination.”
“intentional
is-
guidances
Moreover,
recent draft
*13
the
stated
the Court
example,
For
Rights of
of Civil
the Office
by
sued
monetary
right to
a new
“confers
amendment
below
discussed
of Education
Department
were
who
petitioner
like
persons
on
relief
of the courts
majority
confirms
but
environment
work
of a hostile
victims
developed
the standards
applying
correct
Id.
discharged.”
constructively
were
re-
adjudication inVII
under Title
the Guardians
Thus
283,
S.Ct. at -.
114
on Title
claims based
students’
view of
when
indicate
opinions
Landgraf
peer or school
involving
violations
to “intentional
referred
Supreme Court
discrimination.
environment
hostile
Franklin,
referring
it was
discrimination”
than
other
any form of
to
DEVELOPMENTS
REGULATORY
other
In
discrimination.
impact
disparate
“[wjhen
includes
recognized
words,
Rowinsky
discrimination”
“intentional
we
IX,
the OCR’s
discrimination.
accord
title
we
interpreting
work
hostile
Dist.,
of
Department
949
Rights of the
City Sch.
Civil
[Office
v.
Doe
Petaluma
See
defer
(N.D.Cal.1996)
appreciable
(citing
interpretations
Education]
1421-28
F.Supp. at
v.
(citing Cohen
City
n. 20
F.3d at 1015
authority Henson v.
80
ence.”
earlier
as
(1st
888,
Cir.
Univ.,
895
F.2d
991
897,
11
n.
Brown
Dundee,
F.2d
682
1993)),
elaborated:
Philadelphia,
which
Cir.1982);
City
v.
Andrews
Cir.1990) (“[T]he
(3d
1469, 1482n. 3
895
Education],
Department
[the
treat
[W]e
of sex
on the basis
to discriminate
intent
OCR,
administra-
through
as
its
acting
innuendo,
propositions,
involving sexual
cases
administering Ti-
charged with
agency
tive
materials,
derogatory
pornographic
tle IX.
be rec
implicit, and thus
language
impor
role has
agency’s
Recognizing the
course”)).
matter of
ognized as a
Al
consequences.
legal
practical
tant
party
a
is not
Department]
though [the
why
cases
recent
explains
background
This
interpreta
its
accord
we must
appeal,
VII
amendments
the 1991
under
See
deference.
appreciable
Title IX
tion
work environment
simply characterize
Resources
v. Natural
Inc.
U.S.A.
Chevron
dis
of intentional
species
discrimination as
844,
837,
Council, Inc.,
467
Defense
Petaluma,
crimination,
discussion.
without
2782,
694
2778,
L.Ed.2d
81
(citing Townsend v.
F.Supp. at
Tallman, 380 U.S.
(1984);
v.
also Udall
see
(7th Cir.1993);
Univ.,
F.2d 691
Indiana
L.Ed.2d
Columbia,
F.Supp. 283
Dist.
Raney v.
Of
Supreme Court
(1965)
(noting that
Toyo
City
(D.D.C.1995);
Heart
v.
Sassaman
interpreta
to the
“gives great deference
(N.D.Ind.1994); Splunge
ta,
F.Supp. 901
officers
by the
the statute
given
tion
(M.D.Ala.
Inc.,
F.Supp. 1258
Shoney’s,
administration”).
charged
agency
Man
Producing
1994);
v. Income
Preston
majority con-
Rowinsky
Nevertheless,
(D.Kan.1994);
Inc.,
F.Supp. 411
agement,
rea-
cannot
34 C.F.R.
106.311
cluded
Guptill,
Meadows
in,
sex,
participation
be de-
from
excluded
on the Basis
Subpart D—Discrimination
1.
of,
subjected to discrim-
or be
the benefits
nied
Programs and
Sex in Education
extracurricular,
academic,
ination
research,
Activities Prohibited
Programs
training,
and Activities.
edu-
occupational
Education
106.31
provided elsewhere
(a)
Except
by recip-
activity operated
General.
program or
cation
shall,
basis
person
on the
part, no
in this
sonably
prohibit
recipient
read
applied
in determining when a hostile envi-
knowingly allowing peer sexual harassment
ronment discrimination violation has oc-
of students.
fit, on ed in this ient which receives financial assistance.... vices or or (3) Deny any person different (2) (b) or service; Provide different Specific service to a basis of [******] provide subpart, manner; prohibitions. sex: student, aid, or benefits from providing any benefits, aid, benefits, recipient Except or services in a aid, aid, shall Federal benefit, or ser- provid- bene- not, which discriminates providing any ment opportunity- tance dents or (7) any person treatment; ent rules of (6) 04) Aid or Otherwise limit Subject any [******] employees; any any right, perpetuate agency, organization, behavior, sanctions, aid, person providing benefit or service to stu- any person privilege, separate significant basis of sex in advantage, or in the or or differ- or other against person enjoy- assis- envi- be liable will also advances, A school re- sexual to unwelcome mission employees, harassment sexual ronment or favors, other verbal or for sexual quests severe, sufficiently that is i.e., for harassment Quid nature. a sexual conduct physical a student’s to limit pervasive or persistent, unlawful equally harassment pro quo from the in or benefit participate ability to and suffers resists thе student whether or a hostile to create or program, education and thus submits or harm threatened employee (1) if the abusive — Fed.Reg. [61 harm. the threatened avoids (i.e., authority apparent Acted with 52,172]. conduct, employee reason- school’s Harassment —Sex Environment behalf acting on ably appears Hostile employee by an aeted harassing conduct school, not the ually or (2d) Agen- ad sexual authority); Restatement (that unwelcome include see can Hotel favors, 219(2)(d); and oth Cavalier cy § Martin vances, requests Cir.1994); (4th or 1343, a sexual Corp., conduct physical or verbal er out the (2) carrying severe, aided persistent, nature) sufficiently position or her his students ability to limit student’s pervasive Pol- institution. EEOC authority with the from an education or benefit participate of Sexual Issues on Current icy Guidance a hostile to create activity, or program Hotel 28; v. Cavalier at Martin Harassment [61 environment. abusive educational Karibian, 1352; 14 F.3d F.3d at Corp. 48 52,172]. Fed.Reg. at Corrections New Mexico 780; Hirschfeld liability for sexual Dept., A school’s quo pro by application quid the line between many is determined cases by its *15 will v. discrimination Franklin Gwin see environment and hostile principles, agency of may 60, 75, conduct Schools, blurred, employee’s and U.S. an be County Public nett at [Id. types of harassment. both 1037-38, 117 L.Ed.2d constitute 52,173]. -the dele governing (1992), i.e., by principles authorization authority to or (i) quid gation involving not in situations Even Ac one’s behalf. (ii) act on person to hostile harassment, of a another creation pro quo for always liable employee’s apparent will cordingly, through a school pro quo harass quid (iii) a hostile envi- authority, creation of one instance or even position is aided employee in a employee by in which a school ronment ment administrator, his or or harassment out the sexual authority, carrying as a teacher known, will authority, a school knew, position have should her it or not whether its students harassment See at liable for issue. of the harassment approved or has notice Vinson, if the school Bank, its v. FSB Savings Meritor (i.e., knew or 2407-08, 91 the harassment S.Ct. harassment), to take failed but known v. Lipsett Univ. (1986); see remedy to steps and (1st immediate Rico, Cir. Puerto Karibian, Determin- 780. 14 F.3d at it. N-915-050, March 1988); Notice EEOC Cf. of sexual has ing a school when Virginia Common 21; at Kadiki Peer Harass- in the is discussed harassment (E.D.Va. Univ., F.Supp. wealth (dis- 72,173] Fed.Reg. at Guidance. [61 ment if a teacher 1995). agency principles Under seq.). p. 409-10 et cussed authority or he infra uses employee regu- to force Title IX assign grades) by the (e.g., required to given Schools she demands, proce- grievance publish adopt and to sexual lations submit student equitable and school prompt shoes” of the providing dures employee “stands complaints, use of sex discrimination for the responsible resolution will be and the harassment, of sexual including complaints Ka employee/agent. authority by the of its dis- against sex policy Fed.Reg. at to disseminate diki, F.Supp. [61 at 754-55. (b)2. 106.8(a) If a 34 CFR crimination. 52,172-3]. employee. (a) responsible Designation employee responsible Designation of 106.8 2. designate one em at least recipient shall Each procedures. grievance adoption of so, school fails do it will be liable for tary involved, students are welcomeness will lack of procedures regardless of whether sex- not be an issue: will OCR never view sexual ual addition, harassment occurred. if conduct between an adult OCR determines that the harassment oc- and an elementary school student as consen- curred, may the school be in violation of Title sual. Because may students be encouraged harassment, IX as agency to believe that a teacher has absolute author- principles previously discussed, because a over, ity operation of his or her class- school’s implement failure to effective policies room, a student may object to a teacher’s procedures against may sexually harassing during comments class. apparent create authority school employ- Leija See ISD, Canutillo ees to harass students. EEOC Policy Guid- (N.D.Tex.1993) (“young children, taught * * * (“ p. ance at in the absence of a to respect their teachers and follow their strong, widely disseminated, consistently teacher’s request, often do not know what to employer policy enforced against occurs”). do when abuse [61 Fed.Reg. at harassment, and an complaint pro- effective 52,173]. cedure, employees reasonably could believe In determining whether an employee’s that a harassing supervisor’s sex- actions will be ual ignored, tolerated, harassment of a student even created a by up- condoned environment, i.e., per management.”) 52,173]. whether Fed.Reg. [61 sufficiently severe, persistent, pervasive to limit a In all alleged cases of harassment ability student’s participate in or benefit employees investigated by OCR, OCR will from the program, education or create a determine school has im taken hostile or abusive environment, educational and appropriate mediate steps reasonably OCR considers the factors discussed in the calculated to end that has Peer Harassment occurred, Guidance. Fed.Reg. remedy effects, [61 and prevent 52,175-83]. from occurring again. If the so, school has done OCR will consider against ease that school resolved and will Peer Hаrassment take no further action. This is true The Peer Harassment guidance draft dis cases in which the school was in violation *16 cusses analysis that the follows, OCR and IX, of Title as well as in those which there that recipients of federal funding use, should has been no violation of federal law. How when investigating allegations that sexual ever, schools should note that Supreme harassment of a student or students an by Court has held a student file á other student group or of (peer students private lawsuit IX, under Title monetary harassment) has created a hostile environ damages are available as a remedy if there ment at an educational institution that re has been a Franklin, violation of Title IX. ceives federal financial assistance. [61 Fed. 76, 503 at 112 U.S. S.Ct. at 1038. Of 52,175]. Reg. at course, a school’s immediate appropri and ate remedial actions are relevant in deter Under Title IX and its implementing regu- mining the extent and nature of damages lations, may no individual be discriminated by plaintiff. suffered a Fed.Reg. [61 against on the basis of sex in educational 52,173]. programs receiving federal financial assis- Although generally, plaintiff a prove § tance. 20 must U.S.C. seq.; 1681 et 34 C.F.R. that the sexual 106.31(b), § harassment supra unwelcome n. 1. In analyzing sexual order to claim, state an actionable if elemen- claims, harassment Department ap- ployee to (b) coordinatе its to comply efforts Complaint procedure recipient. A re- carry and responsibilities out its under this cipient adopt publish shall grievance and pro-
part, including any investigation
any
com:
providing
cedures
prompt
equitable
and
plaint
recipient
communicated to such
alleging
employee
resolution of
complaints
and
student
any actions
prohibited
which would
by
this
alleging
prohibited
action which
would
part.
recipient
notify
shall
all its students
part.
name,
employees
and
office
and
address
telephone
number of the
employ
or
appointed pursuant
ees
to this paragraph.
(“[T]he
(W.D.Tex.1995)
140, 143
F.Supp.
con
educational
to the
appropriate
plies, as
to be on
position
the best
is in
applicable
legal principles
text, many of the
* *
*
discriminatory conduct
lookout
de
place,
work
in the
harassment
to sexual
requirement
known’
have
or should
‘knew
Rights A
of the Civil
VII
under Title
veloped
monitor its
2000e-2(a).
the school district
See mandates
§
1964,
U.S.C.
Act
a situa
Schools,
prevents
and students
employees
County Public
v.
Franklin Gwinnett
district, through its
1028,
where
75,
tion
discrimi
eye toward
princi
turns blind
policies,
(1992)
VII
(applying Title
Moreover,
conduct.”)].
schools
natory
was enti
a student
determining that
ples
to have
regulations
by the Title
required
harassment
from sexual
to protection
tled
students
Murray
through which
IX);
prоcedures
grievance
Title
under
in school
a teacher
Dentistry, 57
discrimination
alleged sex
complain of
College
Univ.
can
New York
v.
Cir.1995) (same);
students, including
harassment.
(2d
Doe
243, other
52,178-
106.8(b).
Fed.Reg.
Dist.,
F.Supp.
[61
City
34 C.F.R.
Sch.
Petaluma
part
(same),
(N.D.Cal.1993)
rev’d
79].
(9th Cir.
grounds,
other
on
conduct
for the
liable
will be
A school
52,175].
1995).
Fed.Reg. at
[61
sexually
envi-
hostile
creates
students
applica
principles
addition, many of the
(i)
ex-
environment
a hostile
where
ronment
VI of
Title
ble
racial
notice”)
(“has
(ii)
ists,
knows
the school
seq.,
et
Act, 42
2000d
U.S.C.
Rights
Civil
(in)
to take
harassment,
fails
the school
harass
to sexual
apply
Title VII also
remedy
steps to
appropriate
immediate
Indeed,
IX was
Title
IX.
Title
ment under
[Citing again
52,177].
Fed.Reg. at
[61
it.
VI,
v. Univ.
Cannon
modeled
R.-S.,
Burrow,
Doe,
Franklin,
Oona
Bosley,
677, 694, 99 S.Ct.
Chicago, 441 U.S.
Davis,
above.]
cited
Murray,
(1979).3
Fed.Reg.
[61
60 L.Ed.2d
sexu-
peer
can receive
recipient
A
52,175n. 2].
creating a
al
pro
form
Peer sexual harassment
schools are
ways. Because
many different
harass
where
sex
hibited
proce-
grievance
required
environment.
a hostile
ing conduct creates
grievance
filed
dures,
may have
a student
Franklin,
112 S.Ct. at
See
stu-
about fellow
teacher
complained to a
R-1SD, 904
Kearney
1037-38;
Bosley
A stu-
harassing him or her..
sexually
dents
(W.D.Mo.1995); Burrow
F.Supp.
may have
dent,
individual
parent,
other
CSD,
F.Supp.
v. Postville
personnel,
contacted
Rosa
1996);
v. Santa
(N.D.Iowa
R.-S.
Oona
driver,
sеcurity, bus
campus
principal,
aas
(N.D.Cal.
Schools,
City
officer, or staff
teacher,
action
affirmative
Ed.,
County Bd.
1995);
v. Monroe
Davis
*17
agent
An
affairs.
office of student
the
in
vacated,
Cir.1996),
(11th
74 F.3d
may
institution
employee of the
responsible
NYU, 57 F.3d
Murray v.
reh’g granted; cf.
recipi-
The
harassment.
the
witnessed
have
make a school
does
Title IX
at 249.
manner,
indirect
in an
may
notice
receive
ent
harassing
the actions
responsible for
the school
as a member
sources
from
own discrimination
student,
for its
rather
but
or local
staff,
the educational
a member of
harass
the
permitting
failing to act
recipient also
The
media.
or the
community,
official knows
a school
once
to continue
ment
flyers about
have received
may
52,180
Fed.Reg. at
happening.
[61
it is
school. See
the
posted around
incidents]
the
n. 3].
Guidance,
Fed.Reg. at
59
Harassment
Racial
a hostile envi-
have notice
will
A school
may receive
a school
11,450 (discussing how
have known
or should
knew
when it
ronment
52,178].
notice).
Fed.Reg. at
[61
v.
Coun-
Monroe
Davis
the harassment.
school
when the
notice exists
Constructive
authorities
at
ty,
F.3d
74
the harassment—
about
ISD,
have” known
887 “should
Elizario
v. San
including
H.
Rosa
11,448
Harassment,
Fed.Reg.
59
harassment,
for Racial
the
see
on racial
information
3. For
(1994).
Investigative Guidance
Department’s Notice
4H
when the school would
(1984);
have found out
Tallman,
аbout
Udall v.
85
the
through
harassment
a “reasonably
dili S.Ct.
13
(1965);
L.Ed.2d 616
Rowinsky
gent inquiry.” See Yates v.
Corp.,
Avco
ISD,
Bryan
(5th
v.
reasonable
Proce
Gressman,
Practice and
Federal
E.
attributed
should be
harassment
the
of
(“[T]he
(1977)
3929, pp. 144-145
§
dure
evidence
There was
district.
the
to
the entire
may review
appeals
court of
the
question
incidents
to the
prior
that
question differ
a
order,
consider
to
either
directing stu-
policy
no
had
school district
controlling or
one certified
ent than
report
a
to make
as to how
parents
and
dents
any
lack of
despite the
the case
to decide
Ele-
The Canutillo
harassment.
of sexual
Note,
controlling question.”);
identified
stu-
directed
Handbook
mentary Student
Federal
in the
Interlocutory Appeals
complaint to
any
had
who
parents
or
dents
1292(b), 88 Harv.
§
28 USC
Under
Courts
primary
the student’s
up with
first take
(1975) (“scope of re
607, 628-629
L.Rev.
understanding was
Rosemarie’s
teacher.
to the
material
all issues
[includes]
view
to her
complaints
any
direct
that
should
she
question”).
order in
indi-
further
evidence
teacher.
primary
at -,
at 623.
Id.,
where
know
did
Rosemarie
that
cated
token,
or
exercise
located
court can
was
By the same
superintendent
office
whether
question
ostensi-
coordinator
over the
jurisdiction
a Title
was
that there
teacher
allegations
education
investigating
physical
health
male
bly responsible
harassment
quo sexual
quid pro
memorandum
In its
abuse.
committed
of child
found
an issue
This
Court
upon
District
Rosemarie.
opinion order
fairly
classmate
within
Leija
her
included
to and
material
when Rosemarie
recog-
to then-
Court
The District
the molestations
order.
certified
reported
Lizette
and order
opinion
teacher,
teacher discounted
in memorandum
nized
primary
type
to
of sexual
kind
pro
action of
abuse is
quid quo
no
story and took
girls’
Leija’s parents
VII
under
actionable
When
the matter.
address
agents or
employer’s
the same
the actions
reported the
which
later
stirring up
imputed
trou-
to the
against
are
teacher,
personnel
supervisory
advised
she
knew,
nothing
employer
or not the
parents
employer
and convinced
ble
known,
ac-
approved
or
happening.
that Ti-
concluded
further
That court
tions.
charged
can be
a school district
Whether
part,
analyzed, in
properly
IX cases
tle
harass
knowledge
student’s
types
two
discrimination.
these
under
its failure
civil action because
in a
ment
pro
Guidance
draft
obligations
Similarly, the OCR
comply with its
occurs
adequate
quo harassment
pro
establish
quid
106.8
vides
and C.F.R.
implicit
explicitly
is is
procedures
grievance
complaint
when
in an
consid
participation
On
jurisdiction.
a student’s
our
conditions
ly
within
question
activity
certified
bases
interlocutory order
or school
program
of an
education
eration
sub
pursuant
the student’s
decision
by a district court
educational
appeal
advances,
may
appeals
re
1292(b),
a court
unwelcome
mission
U.S.C.
favors,
that is
verbal
any question
or other
jurisdiction over
for sexual
quests
exercise
containing the con
61 Fed.
a sexual nature.
order
physical
conduct
within
included
to the
tied
Yale
52,172, citing
is not
Alexander
law
question
Reg.
trolling
(D.Conn.1977);
the Dis Univ.,
Ka
F.Supp.
question formulated
particular
Univ.,
Corp. v. Cal
Motor
v. Va. Commonwealth
Yamaha
trict Court.
diki
—
(E.D.Va.1995);
—,
Karibian
houn,
(2d
explained:
Univ.,
(1996).
As the Court
Columbia
*19
liable for
always
will
A school
any is-
may address
court
appellate
[T]he
harass
pro
quid
quo
instance
even one
or-
certified
within
fairly included
sue
position
in a
by a school
appeal- ment
that is
the order
“it is
der
authority,
administrator,
such
a teacher or
as
claim,
it should either
knew,
or not
known,
should have
do so
grounds
on the
of the school district’s
approved
of the harassment. See
liability
Meritor
quid pro quo
harassment,
Vinson,
Savings Bank v.
70-71,
477 U.S. at
or it should reserve the latter issue for con
2407-08;
106 S.Ct. at
Lipsett v. Univ.
sideration
the district
upon
court
remand.
Rico,
(1st
Cir.1988);
Puerto
F.2d
The
clearly
District Court
erred in placing
N-915-050,
EEOC Notice
March
Poli
limits
damages
on
recoverable under Title
cy Guidance on Current
Issues of Sexual
IX.
In Franklin
Supreme
Court held
Harassment,
21; Kadiki,
at
plaintiffs
may recover- compensatory
752;
52,173.
Fed.Reg.
damages undеr Title IX. The cornerstone to
The District
Tony
Court found that
Pe-
the Court’s analysis was that
all
taught
rales
Leija
Rosemarie
health and
presumed
remedies are
available unless Con
physical
in
grade
education
the second
dur-
gress
expressly
has
indicated otherwise.
ing
year.
the 1989-90 school
During
Franklin,
quently, if this court does not affirm the
judgment against the school dis plaintiffs’
trict on the hostile environment