Christine Franklin v. The Gwinnett County Public Schools, a Local Education Agency (Lea), Dr. William Prescott, an Individual
911 F.2d 617
11th Cir.
1990
Check Treatment

*1 L.Ed.2d 381 -, proof Marko- complete find lack management of constitute activities

vic’s re- “participants.” guidelines of the application as to

verse two levels.7 enhancement

CONCLUSION reasons, reverse foregoing

For the respect judgment with court’s district Petrovic, and affirm the Mijodrag Markovic, but of Stanko conviction ment of guide- of the application as to

reverse resentencing of defen- and remand for

lines

dant Markovic. part, REVERSED

AFFIRMED further

part, and REMANDED opinion. with

ceedings not inconsistent FRANKLIN,

Christine

Plaintiff-Appellant, PUBLIC COUNTY

The GWINNETT Agency

SCHOOLS, Education a Local Prescott,

(LEA), An Indi Dr. William

vidual, Defendants-Appellees.

No. 89-8393. Appeals, Circuit.

Eleventh

Sept. 1990. hearing, judge sentencing stat- At the court. range offense guideline based on total the low end "at history category proposed I to sentence he ed that 16 and a level of criminal 21 months contention Markovic’s and a sentence guidelines," months. The is 21-27 level should be reason that imposed, that the offense for the counsel imprisonment was range imprisonment be 15-21 months high involved." tech material was no “there rejected opposed months *2 Katz, According complaint, her Franklin at- Weinstock, Stephen M. Michael Atlanta, Ga., School, Scavo, P.C., High for Gwin- & tended North Gwinnett Weinstock District, plaintiff-appellant. County nett Public School Georgia. September State Heard, Leverett, & Leverett E. Freeman Hill, Andrew Franklin’s economics Coach amicus, Elberton, Ga., Georgia for Phelps, teacher, friends with her. Indica- became Assoc., Inc. School Boards friendship included Franklin tions of this Heath, III, Alan R. Bedinger, Frank C. grade papers, pri- being allowed to class Ga., Hawkins, Atlanta, for Freeman & during meetings her and Hill between vate Dr. County Public Schools and classes, by Hill notes written and between William Prescott. authorizing her late admittance to other Britt, Buford, Britt, Pruitt & Walt M. classes, by her and Hill to visits Jr., Atlanta, Ga., Ga., Wright, for Arnold office, separated was from Hill’s which Prescott. Dr. William building. main school Davidson, Tennant, Sweeny, Victoria complaint, during this According to the P.C., Lawrenceville, Thompson Sweeny, & Franklin period of time Hill initiated with Ga., County Public Schools. for Gwinnett nature. Dr. Wil- discussions of a sexual Walker, Jr., Boyd, J. Dorman David R. Prescott, school, director at the liam band Ala., Bingham, Montgomery, Balch & Kreeft, Franklin's by Douglas told was Ass’n of School Boards. amicus Alabama these Frank- boyfriend, about discussions. lin excused from several classes at the was point Hill. At one after an request of lot, parking Hill argument in the school JOHNSON, Judge, grabbed Before Circuit and kissed her. In Octo- Franklin HENLEY**, HILL* and Senior Circuit principal was told an assistant ber Judges. by other students of “involvement” be- Hill Franklin. The student was tween

HENLEY, Judge: Circuit Senior time, During period “admonished.” appeals the dis- Franklin from to teach- Christine certain female students indicated pursu- of her action trict court’s1 dismissal the school guidance ers and a counsellor at Rule of Procedure ant to Federal directing that Hill was sexual remarks 12(b)(6), upon a claim for failure to state female students as well. granted.2 which relief can be We affirm. according complaint, Ultimately, brought Franklin the action under Title engaged or three Hill and Franklin two IX of the Education Amendments sexual intercourse on school episodes of (codified at 20 U.S.C. 1681- as amended and December of grounds between October (1988))(“Title IX”), seeking damages 29, 1988, February the school’s 1987. On County against Gwinnett Public Schools alleged sexu- principal informed of the Prescott, (“Gwinnett”), and Dr. William activity al between Hill and Franklin. intentionally contending that she had been reported alleged Franklin that after she gen- of her discriminated because to school authori- the above circumstances dismiss, der. Gwinnett filed a motion to discourage ties Prescott tried to her from alia, arguing, re- inter by talking matter to her pursuing lief is unavailable for violations of negative publicity which could Amendments of 1972. about the of the Education * Franklin, 34-2(b), support the National Women’s See Rule Rules of the U.S. Court of Appeals for the Eleventh Circuit. Law Center submitted a brief on behalf of nu- ** parties; support merous interested nett, of Gwin- Henley, Honorable J. Smith Senior U.S. Circuit Georgia Circuit, School Boards Association and designa- Judge Eighth sitting by Boards have the Alabama Association School tion. briefs. submitted amicus Evans, 1. The Orinda D. Honorable Judge, Georgia. District Northern District of spoke to in an 5.Ct. result. Prescott also Kreeft which (and upon discourage construed Title VI effort to enlist his assistance both parties rely), well as the pursuing Franklin from the matter. Some- cases, applicable other Title VI in a time March and March between *3 began IX investigation. an At the context. See Cannon v. of 677, Chicago, 1946, 441 year, of Hill U.S. 99 S.Ct. 60 termination the 1987-88 school (1979). resigned L.Ed.2d and Prescott retired. At 560 investigation. point, Gwinnett closed its patterned IX Title was after Title ofVI Rights Except the Act of Civil 1964. 1988, August In of a com- Franklin filed the the substitution of word “sex” in of plaint against Gwinnett Office with “race, replace color, Title IX to the words (“OCR”), De- States United origin” VI, or national in Title the two Education, partment alleging of she language use statutes identical to de- subjected had discrimination been to sexual scribe the Both benefitted class. stat- Following IX.3 six- violation of Title provide same utes administrative investigation, month OCR found Gwinnett terminating mechanism for federal finan- in a of Title IX.4 violation However engaged support cial for institutions 14, signed by letter its re- December 1988 prohibited discrimination. gional director and addressed to Franklin's 694-96, Id. at 99 to 1956-57. Herein- counsel OCR stated due assurances designed prevent to after discuss Title VI and cases of affirmative actions interchangeably, somewhat be- any it considered Gwin- because we future violations analysis it of Title lieve is settled that the two compliance nett that date in with as of substantially statutes is the same. investigation IX. the OCR closed. case, purposes For of is un private right disputed implied that an In the of a motion to dis context Cannon, under Title IX. action exists miss, accept in a alleged as true facts 677, However, 99 S.Ct. 1946. it is complaint light in a fa and construe them question a litigant "whether clear E.G., plaintiff. Quality vorable to analytically has a ‘cause of action’ is dis Am., v. Am. de Centro S.A. Latin Foods tinct and what 989, Corp., Agribusiness Dev. relief, if any, litigant entitled to Cir.1983). (11th parties agree 228, Passman, 442 receive.” Davis U.S. v. have held that Title VI of Civil cases 99 (codified Rights Act of 1964 as amended (1979). Consequently, the existence of a (1988)) (“Title 42 2000d d-4 U.S.C. §§ by no means assures a VI”),5 legislative antecedent served as array to an unlimited of remedies. IX,6 consequently, the and that Title Indep. v. jurisprudential Justices’ Needville School (5th Dist., April A v. Civil 642 F.2d 129 Cir.Unit opinions Guardians Association 1981), Commission, discharged 103 teachers filed suit black 463 Service 88-352, VI, charged promulgating § tit. 78 Stat. 252 Department is with Pub.L.No. 3. The (1964) (1988)). enforcing regulations pursuant (codified IX. to Title U.S.C. 2000d (1989). C.F.R. 106.1-106.71 §§ 34 901(a) provides 6. Section follow- Specifically, in violation Gwinnett was found ing: 106.- C.F.R. of 8, shall, person No in the United States on .31(b)(4), .31(b)(7), .31(a), .31(b)(2), .71 sex, participation basis of be excluded from (1989). in, of, subjected denied the benefits or following: provides the VI 5. Section 601 of Title any under education shall, person No gram activity receiving or Federal financial color, race, origin, be or national basis assistance. in, participation be denied excluded from 901(a), Pub.L.No. 86 Stat. 373 of, subjected to discrimination or be benefits (codified (1988)). 1681(a) at 20 U.S.C. § receiving activity Fed- any program or under assistance. eral financial to a relief allow rights stat civil and other Title VI under proof of absent Title VI plaintiff under alleging rights violations civil utes Manecke School discriminatory intent.” they had for which district a school Fla., County, F.2d Pinellas injunctive Bd. declaratory and worked, seeking denied, Cir.1985), cert. (11th affirming dis damages. relief and the U.S. action, held that the court missal allowed right of action “private attempt more than an encompasses difficulty outset, some concede At the activity discriminatory ceased.” any to have Association application Lie see also added); (emphasis Id. opin- dispute, given the various the instant *4 Chicago, 660 F.2d berman v. the of we note regard, In this ions therein. Cir.1981) (affirming summa (7th 1185, 1188 the that Powell of Justice comments sought plaintiff who against ry judgment Guardians “opinions several [in Court’s discriminatory Title IX for damages under rath- confuse will further ... Association] noting policies, admissions medical school 608, 103 S.Ct. 463 U.S. at guide.” er than courts, to the Congress, not for that it is Associa- Guardians though And at 3235. denied, damages), cert. create a badly frag- “a tion has been described 1993, 456 937, 102 S.Ct. id., we nevertheless decision,” see mented guidance. to it for have looked Cir- former Fifth Since decisions of the judgment announcing the In 1, rep- 1981 October prior to Court, rendered cuit Justice Association Guardians court, for binding precedent only resent Jus- opinion which concocted an White 1206, Prichard, F.2d 661 City Bonner there Noting joined. that Rehnquist tice of banc), Cir.1981) (en we find (11th 1207 discrim- showing of intentional no had been cir- ques- “put constituted the ination, clear that aside” Justice White compensatory of on matter circum- damages hypothetical cuit’s view tion of and Titles discrimination. damages involving intentional under stances Association, case to a which at 3229. Justice Guardians S.Ct. 463 U.S. at however, that added, that “it we now turn. White of intentional the victim Association, petitioners In Guardians compensatory to a entitled of police officers Hispanic and black award_” added). Id. (emphasis York, brought a class action City of New Powell, Commis- Chief Justice joined Service the Civil lawsuit Justice cause of action at civil layoffs implied constituted no Burger, found alleging their sion 608-11, 103 alia, id. at Title VI. See under, VI. inter all under rights violations J., concurring in (Powell, se- at 3235-37 constructive S.Ct. court awarded The district logically that nonmonetary It follows judgment). monetary and niority, with damages could be did not believe entitlements, certain other relief. Justices could lie of action sought, of no cause where issue appeals reversed O’Con- place. Finally, Justice first discrimi- holding that intentional damages, concluding judgment, concurred in nor also found not been had nation —which available any kind was relief of relief under required trial court —was She intentional discrimination. without Title VI. of wheth- the issue did not therefore reach affirmed Supreme Court fragmented A er a private A appeals. the court judgment at id. n. lie. at would opinions dis- reading various fair (O’Connor, J., concurring agreed majority of Justices closes that ment). prerequi- is not a discriminatory intent dissent, posi- Marshall took Justice VI, see site to relief compensatory relief is available tion that Association, 584 & n. 463 U.S. at a show- White, J.), plaintiff Title VI without (opinion n. 2& id. ing of intent to discriminate. justices would least five that “at but J., (Marshall, 103 S.Ct. at 3244-49 before us. Justice analyzed White the na dissent, dissenting). itself, viz, Justice Stevens ture of Title VI a statute enacted join- Brennan and Clause, with Justices Blackmun pursuant see compensatory ing, also determined that (opinion S.Ct. at 3230 635-39,103 damages were Id. at available. White, J.), as well as the “limited (Stevens, J., dissenting). leg such flow from remedies]” islation, see id. at 103 S.Ct. at 3231. case, As we read this five members of statutes, Under such relief frequently Court, White, Powell, Rehnquist, Burg- limited equitable to that which is O’Connor, er and concluded that either the nature, recipient with the of federal funds relief for inten- retaining option terminating thus tional discrimination under Title VI was receipt such in order to rid itself of an (White, O’Connor), open Rehnquist, or no injunction. See id. at 103 S.Ct. at private cause of action under Title VI ex- Moreover, (Powell, Burger). contrast, with such statutes the ists at all Justices, Marshall, Stevens, only required four Bren- Court has not a defen nan, Blackmun, “provide such relief money plaintiffs, believed dant to much required was available. less to take on ... *5 [a defendant] open-ended potentially and burdensome ob argue, Both Franklin and Gwinnett ” ligations .... Pennhurst State School & briefs, points in the that various Guardi- Halderman, 1, 29, 101 Hospital v. 451 U.S. dispositive ans Association is issue 67 L.Ed.2d 694 Franklin, hand, before us. on the one ar- Finally, “[s]ince gues of Guardians Asso- implied by is one the judiciary ... rather implicitly Drayden, ciation overruled while expressly by Congress, than created disagrees. on the other We think respect appli the ... considerations Franklin reads too much into Guardians in Spending cable Clause cases and take Association. defining care in the limits of this cause of Although it seems clear that action and the remedies available thereun precludes ment of Guardians Association Ass’n, der.” Guardians 463 U.S. at compensatory a cause of action for dam- at 3230. discrimination, ages for unintentional opinions majority believe the various of a argues, Franklin as does the National simply open of the Justices leaves Center, Rights Women’s Law that the Civil question compensatory damages whether (codi- Equalization Remedies Amendment may intentional discrimination (1988)), enacted fied at U.S.C. 2000d-7 sought. We do not read Guardians Asso- in demonstrates that Title VI was ciation hold because no passed pursuant to both the fourteenth sought for unintentional discrimina- Spending This amendment and Clause. tion, necessarily this leads to the inevitable true, the dam- being a more liberal view of conclusion that where intentional discrimi- order, question they in contend. ages is shown, damages remedy pos- nation is is statute, disagree. language The of the We question simply open, and sible. The is tell, bearing as far as we can has no direct free, thus the inferior courts are checked question on the whether a cause of action only by respec- the constraints within their Instead, money damages lie. will spheres authority, they tive to act language only sovereign im- eliminates the appropriate. deem munity of the eleventh States opinion response amendment in to Atascadero Justice White’s Guardians As- Scanlon, important guid- provides Hospital sociation other State (1985).7 resolving ance which assists in the ease The Equalization Remedies the United States from suit in Federal court following: provides Amendment of Title title for violation section 794 Amendments of IX of the Education A State shall not be immune under the Age Eleventh Amendment of the Constitution of Discrimination Act of 1975 U.S.C.A. [42 any federally legislation makes clear that States occurs under funded (which gram, unnecessary now be sued under Title VII we find extensively analyze purposes) to the same extent named statutes for these sued under the stat- speaks outright prohibitions, other entities in terms of directly address the making employment utes. But it does in an question money damages can be whether setting employment practice. an unlawful IX, suddenly See, had under Title nor does e.g. U.S.C. 2000e-2. We do not change original authority under which applying Title VII to Title IX would believe Congress passed legislation, from that orderly analysis result kind so Clause, of the to the fourteenth necessary confusing area this law. amendment. reason, For this we decline to do so. IX, VI, Spending like Clause regard With of the liabili- legislation. proceed with ex- individual, ty of Dr. William Prescott as an treme care we are asked to find a when tell, insofar as we can Franklin has aban- relief, where Con- appeal. There is no doned issue provided gress expressly has not such a substantive discussion of the issue her scheme, statutory remedy part as a briefs, and the issue was not touched on spoken where the Court has not argument. counsel at oral For these rea- binding clearly, precedent where sons, necessary we do not find it to consid- contrary. circuit is er the issue.9 (cid:127) do we are constrained We not believe above, For the set out we AF- reasons Association on the issue of FIRM the decision of the district court.10 compensatory damages for intentional dis- *6 Nevertheless, do remain crimination. JOHNSON, Judge, concurring Circuit circuit, apply

bound to the law of this specially: precedent of the Fifth which includes Cir- frag- is indeed a Guardians Association cuit handed to the formation of down opinion. divining mented a rule of law Bonner, this circuit. 661 F.2d at 1207. from it to address the situation now before Because we conclude above that the Su- Court, holding must consider the preme has not overruled “ ‘position the case to be the taken those explicitly implicitly, either or we are bound judgments Members who concurred in the ” Dray to follow den’s mandate that grounds.’ narrowest Marks v. are under Titles and IX. unavailable VI 188, 193, States, 430 U.S. 97 S.Ct. United 990, 993, (1977) Finally, (quoting note that Franklin has 153, 169, apply invited a Gregg Georgia, Title VII8 v. IX, analysis to this case. Titles VI and 49 L.Ed.2d 859 n. 15 VII, (1976)). Dugger, well as Title all have an antidiscrim also Martin v. (11th Cir.1989). purpose. ination But while Titles VI and F.2d IX speak grants reaching in terms of conditional the result in Guardians Associa- tion, if be terminated discrimination five Members of Court concluded do, however, seq.], 6101 et title VI the Civil Act 9. We that the Sixth § of note Circuit seq.], U.S.C.A. 2000d et or the proceed against 1964 [42 has found there is an provisions any other Federal See, statute e.g., individual under Title IX. Leake v. hibiting by recipients of Feder- Cincinnati, al financial assistance. (6th Cir.1979). (2) against In a suit a State for a violation paragraph of a statute referred reme- any 10. We do not here reach the (including at dies equity) remedies both law and in legal rights which Franklin or not are available for such violation to (2) any have under either state law or feder- the same extent as such remedies are avail- Any ques- al statute other than Titles or IX. able for such a violation in the suit regard tion in this must be considered on its entity any public or other than a State. setting. own merits and in another (1988). U.S.C.. 2000d-7 8.42 U.S.C. 2000e to e-17 appellants could not be awarded showing

compensatory relief without America, UNITED STATES of intentional discrimination. See Guardians Plaintiff-Appellee, Association, 606-07, v. (White,J., announcing judgment at 3234-35 J.); Court, joined by Rehnquist, id. VILLEGAS, Rendon, Jose Alfredo Jairo (Powell, J., 610-11, 103 S.Ct. at 3236-37 Rodrigo Rendon, C.J., concurring, joined by Burger, Defendants-Appellants. J.); Rehnquist, id. J., (O’Connor, concurring). This was the America, UNITED STATES of resulting in judgment narrowest conclusion Plaintiff-Appellee, from and is therefore the rule be drawn suggestions many the case. The made the various concurrences and dis- VILLEGAS, Defendant-Appellant. Jose regarding sents the kinds of remedies proof need- available under VI and Nos. 88-5804. those remedies must be con- ed to achieve opinions sidered dicta. The of Justices Appeals, United States Court of specifically put aside White and O’Connor Eleventh Circuit. question of whether under Title VI Sept. damages may suffering be awarded those opinions intentional discrimination. The

Justices Marshall and Stevens indicate preference compensatory re-

their to award

lief of discrimination under Title to victims or not those victims can show

VI whether discrimination,

purposeful but their state- intervening an rule

ments do constitute precedent overrules the of our

of law which Until the Court or an en

Circuit. *7 says other-

banc court of our own Circuit

wise, binding precedent Drayden is and we Machado, it.

must follow United States (11th Cir.1986)(stating sitting “[ojnly a decision

en banc or panel decision”). can overrule a specially

I I concur because believe dispositive of this case.

Drayden alone necessary therefore to address the

It is not of whether Titles VI and are

issues

grounded solely Clause or apply Title VII

whether or Title IX.

an action under