Davis Ex Rel. LaShonda D. v. Monroe County Board of Education

DAVIS, as next friend of LaSHONDA D. v. MONROE

COUNTY BOARD OF EDUCATION еt al. No. 97-843. Argued January 12, 1999 24, 1999 May Decided Stevens, Court, in which of the opinion O’Connor, J., delivered Kennedy, J., dis- filed a Breyer, JJ., joined. Ginsburg, and Souter JJ„ Thomas, Rehnquist, J., Scalia C. in which senting opinion, post, p. joined, With for petitioner. L. Williams the cause argued

Verna Greenberger, T. Leslie D. were Marcia the briefs her Munro. Nancy Perkins, and Stevenson Annexstein, the cause Underwood argued General Deputy Solicitor With reversal. curiae amicus urging States United Acting Waxman, General were Solicitor brief her on Brinkmann, Den- S. Lee, Beth Attorney General Assistant Dimsey, F. Thome. Linda J. nis a brief Jr., and filed Plowden, cause

W.Warren argued respondents.* the Court. the opinion delivered O’Connor Justice Board County Monroe against suit brought Petitioner fifth- her defendants, alleging other Education of sexual victim had been daughter grade was claims petitioner’s Among in her class. student another IX under Title relief injunctive and monetary for claima American filed for were reversal urging curiae of amici *Briefs R. Ska- Steven and Mandelbaum by L. Sara et al. Union Liberties Civil Lichtman by Judith L. et al. Association Education the National piro; for Fund Education and Defense Legal the NOW Lenhoff; for R. Donna and Wu, Goldsckeid, David S. S. Davis, Yolanda Julie F. by Martha al. et Institute Rutherford for the and Sungaila; Mary-Christine Ettinger, and H. Aden. Steven W. by Whitehead John National for the filed were affirmance urging curiae Briefs amici Jacobs, and Brown, by A. Lisa et al. Jennifer Boards Association School by James Liberty et al. Individual Undenvood; for Students Julie Moody. A. Independent for the a brief Blair filed K. P. Ward Anita Richard curiae. as amicus Forum Women’s

683 (Title Education IX), Amendments of 1972 373, Stat. § amended, U. S. C. seq. 1681 et The District Court petitioner’s dismissed ground claim the peer, “student-on-student,” provides harassment no ground private for a cause of action under the statute. The Appeals Court of for the Circuit, Eleventh sitting banc, en affirmed. We private consider here whether damages a ac- may against tion lie the school board in cases of student-on- student harassment. We may, only conclude that but funding where the recipient with acts deliberate indifference to knоwn acts of programs harassment in its or activities. Moreover, we conclude that only such an action will lie harassment that is so pervasive, severe, objectively of- fensive that it effectively bars the victim’s access to an edu- opportunity cational or benefit.

Petitioner’s Title IX claim was dismissed under Federal 12(b)(6) Rule of Civil Procedure for failure to state a claim upon which granted. relief could be Accordingly,in review- ing legal sufficiency petitioner’s cause action, “we must assume the truth of the material alleged facts as in complaint.” Summit Health, Ltd. v. Pinhas, 500 U. S. 322, (1991).

A Petitioner’s daughter, minor allegedly LaShonda, was victim of a prolonged pattern of sexual harassment one fifth-grade her classmates at Elementary Hubbard School, public school in County, Georgia. Monroe According petitioner’s complaint, began in December 1992, when the G. attempted elassmate, F., to touch LaShon- da’s genital breasts and vulgar area and made statements “ ” “ such as T get want to in bed you’ and T want to your feel boobs.’” Complaint ¶7. alleg- Similar conduct edly occurred on January or about January 4 and 20, 1993. Ibid. reported LaShonda each of these incidents to her Fort. Ibid. Diane teacher, classroom her to and mother allegedly as- who Fort, contacted turn, in Petitioner, Querry, had Bill principal, petitioner sured contends Petitioner incidents. Ibid. of the informed been disciplinary action no reports, notwithstanding these that, ¶ 16. Id., F. against G. taken was many allegedly continued conduct G. F/s stop his in placed a door purportedly February, F.G. early suggestive manner sexually ain act proceeded pants and Id., ¶ 8. class. education physical during LaShonda toward physical education her behavior F.’s reported G. LaShonda week one Approximately Maples. Ibid. Whit teacher, behavior, harassing in engaged allegedly again F.G. later, classroom of another supervision under while time this allegedly Again, LaShonda ¶ 9. Joyce Pippin. Id., teacher, petitioner again teacher, incident reported the up. Ibid. to follow teacher contacted more once F.G. alleges that Petitioner physical education in LaShonda toward harassing conduct inci- reported LaShonda early March, in class mid-April ¶ In 10. Pippen. Id., Maples and both dent body against LaShonda his allegedly rubbed F.G. 1993, sexually considered hallway LaShonda what matter reported the again manner, LaShonda suggestive ¶ Id., 11. Fort. finally string incidents The battery guilty to, sexual pleaded with, charged F. was G. alleges that complaint ¶ 14. Id., his misconduct. harassment, during months suffered had LaShonda allegedly grades high previously her specifically, however; studies, her concentrate unable became she dropped she discovered father her 1993, April ¶ and, id., 15, complaint further note, ibid. a suicide written had petitioner told LaShonda point, one alleges that, at F.] keep [G. longer could she much how know “‘didn’t she ¶ Id., her.”’ off Nor was only LaShonda G. F.’s alleged victim; it is girls

other in the prey class fell to G. F.’s ¶ conduct. Id., 16. point, At one group fact, composed of LaShonda and other female speak tried Principal with Querry about G. Id., ¶ F.’s behavior. 10. According to the com- plaint, however, a teacher denied the request students’ [Querry] statement, “‘If you, you.’” wants he’ll call Ibid. alleges

Petitioner disciplinary no action was taken in response to G. F.’s behavior toward Id., ¶ LaShonda. 16. In addition to her conversations with Pippen, Fort and peti- alleges tioner spoke that she with Principal Querry in mid- May 1993. petitioner When inquired as to what action the school intended against to take Querry G. simply F., stated, “ ” guess ‘I I’ll have to threaten him a little bit harder.’ Id., ¶ petitioner 12. Yet, alleges, point at no during many reported months of his misconduct disciplined was G. F. ¶ harassment. Id., 16. Querry Indeed, allegedly asked petitioner why LaShonda only “‘was the complaining.’” one ¶ Id., 12. according

Nor, complaint, to the any was effort made to separate G. F. and LaShonda. Id., ¶ 16. contrary, On the notwithstanding frequent complaints, LaShonda’s only after more than three reported months of harassment was she permitted even change her classroom seat so that she was longer no seated next to ¶ F. Id., G. peti- Moreover, alleges tioner that, at the time of question, the events in County (Board) Monroe Board of Education had not in- personnel structed its respond on how peer sexual harassment and had not policy established a on the issue. Id., ¶ 17.

B May On petitioner 4,1994, filed suit in the United States District Court for the Middle Georgia against District of Board, Charles Dumas, the school superintendent, district’s Principal Querry. complaint alleged that the Board IX, purposes funding for federal recipient ais by the and harassment advances sexual persistent “[t]he ability to her interfered [LaShonda] upon F.G. student activities,” and and studies her perform and attend un- the by Defendants indifference “[t]he deliberate that cre- upon LaShonda a student of advances sexual welcome abus[ive] school and offensive hostile, intimidating, an ated The 28. ¶¶27, Id., IX.” Title of violation environment attor- damages, punitive compensatory sought complaint ¶ 32. Id., relief. injunctive fees, and ney’s (all respondents defendants Procedure Civil of Rule Federal under complaint petitioner’s could relief upon which claima 12(b)(6) to state failure for motion. respondents’ granted Court District the granted, 1994). regard (MD With Ga. Supp. 363, 368 F. 862 See the dismissed court IX, the Title under claims petitioner’s only that ground the on defendants individual against claims federally liabil- subject to institutions educational funded Id., 367. IX. Title under action causes ity private provided IX Title that concluded court Board, the the forAs or Board the “that allegation an liability absent for no basis harassment.” any role had Board employee an Ibid. dismiss- decision Court’s District appealed Petitioner panel a Board, and against claim IX her Title ing F. reversed. Circuit Eleventh for Appeals Court ma- a law, VII Borrowing Title (1996). 1186, 3d har- student-on-student panel determined of the jority under Board against the action a cause stated assment a encompasses VII Title conclude “[W]e IX: Title working environ- sexually hostile a damages due claim employer, by the tolerated by co-workеrs created ment sexually to a damages due claim encompasses student by a fellow created environment educational hostile knowingly fail authorities supervising when 1193. Id., at harassment.” eliminate to act

Eleventh panel Circuit recognized petitioner sought to state a claim based on school “officials’failure to take action to stop the offensive acts of those over whom the officials exercised control,” ibid., and the court concluded peti- tioner alleged had facts support sufficient to a claim for hos- tile environment sexual harassment theory, on this id., at

The Eleventh granted Circuit the Board’s motion for re- hearing en (1996), banc, 91 F. 3d 1418 affirmed Dis- trict Court’s decision to petitioner’s dismiss Title IX claim against (1998). the Board, 120F. 3d 1390 The en banc court primarily, relied, theory that Title IX passed was pur- suant Congress’ legislative authority under the Constitu- tion’s Spending U. Clause, S. Const., Art. I, §8, cl. 1, and that

the statute therefore provide must potential recipients of federal education funding with “unambiguous notice of the they conditions are assuming they when accept” it. 120 F. 3d, at 1399. Title IX, the court provides reasoned, recipi- ents with notice that they stop must their employees from engaging in discriminatory conduct, but the statute fails to provide a recipient with sufficient duty notice of a prevent student-on-student harassment. Id., at 1401. Writing in dissent, four judges urged that the by statute,

declining identify the perpetrator of discrimination, en- compasses by misconduct parties: third identity “The of the perpetrator simply irrelevant under the language” of the statute. Id., at (Barkett, 1412 J., dissenting). plain language, the dissenters provides reasoned, recipients with sufficient notice that a failure respond to student-on- student harassment could trigger liability for the district. Id., at granted We certiorari, 524 (1998), U. S. 980 in order to re-

solve a conflict in the Circuits over whether, and under what circumstances, a recipient of federal educational funds can be liable private in a damages arising action from student-on- student sexual compare harassment, (CA11 120 F. 3d 1390 638 Independent Bryan Rowinsky v. below), (сase 1998) and private (CA5) (holding that 1008 1006, 3dF. 80 Dist.,

School is avail harassment student-on-student damages action responds recipient funding only where IX Title under able vietim), cert. gender of differently based claims these Illi University v. (1996), Doe with U. S. denied, dam private 1998) (upholding (CA7 653, 668 3dF. nois, 138 inadequate recipient’s funding IX Title under ages action harassment), vacated student-on-student known response Polytech Virginia v. Brzonkala p. 1142, post, remanded, and 960-961 949, F. 3d University, 132 State Institute nic af decision Court District 1997) (same), vacated (CA4 addressing 1999) (not (CA4 3dF. banc, 169 en firmed harassment sexual environment hostile IX of Title merits abey claim this to hold Court directing District claim case), and instant decision this Court’s pending ance 1998) (CA9 473, 478 3d McCaffrey, 143 F. v. Oona, R.-S.- Title concluding that immunity claim qualified (rejecting was student-on-student respond to duty to IX p. 1154. post, denied, 1992-1993),cert. clearly established reverse. nowWe

II issue exceptions certain provides, here, basis on the shall, States United person in “[n]o denied be in, participation excluded sex,

of any under discrimination subjected or be of, benefits finan- receiving Federal activity or program education 1681(a). § 20 U. S. C. assistance.” cial scheme enforcement an administrative Congress authorized au- agencies or departments Federal IX. Title for pro- entrusted assistance financial thority provide objec- enforce orders regulations, rules, mulgate agencies or departments § these § 1682, see 1681, of tives including by law,” authorized means “any . .. rely may the termination funding, of give ibid., to effect the stat- ute’s restrictions.

There is dispute no here that the Board recipient is a federal funding education for Title purposes. IX 3d, F. at 1189. Nor do respondents support argument an student-on-student harassment cannot rise to the level of “discrimination” purposes ‍‌‌​​‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​‌​​​​​‌​‌‍for of Title IX. Rather, issue here is question recipient whether a of federal education funding may be liable damages under any Title IX under circumstances for discrimination in the form of student-on- student sexual harassment.

A urges Petitioner plain Title IX’s language compels the conclusion that the statute is intended to recipients bar funding federal from permitting this form discrimination programs their or activities. She emphasizes that the prohibits statute a student from being “subjected to discrim- ination any under program education activity receiving Federal financial 1681(a) § assistance.” 20 U. S. C. (empha- added). sis It is Title IX’s “unmistakable focus on the bene- fited class,” Cannon v. University Chicago, 441 U. S. 677, (1979), rather than perpetrator, petitioner’s that, in view, compels the conclusion that the statute protect works to students from the discriminatory peers. misconduct of their

Here, however, we are asked to do more than define the scope of the behavior that Title proscribes. We must determine whether a district’s respond failure to to student- on-student harassment in its schools can support private suit money damages. See Logo Gebser v. Vista Inde pendent Dist., School (1998)(“In 524 U. S. 274, 283 this case, petitioners ... just seek to establish a Title IX violation but to damages...”). recover This recog Court has indeed an implied nized private right of action under IX, see Cannon v. University Chicago, supra, and we have held money that damages are available in such suits, v. Franklin (1992). Be 60S.U. Schools, 508 County Public Gwinnett legislation IX Title treated repeatedly have we cause Spending authority under Congress’ pursuant enacted Independent Lago Vista v. g.,e. Gebser see, however, Clause, v. Gwinnett IX); (Title Franklin at supra, Dist., School IX); (Title 8n. 74-75, and at supra, Schools, County Public New Comm/n Serv. Civil of v. Assn. Guardians also see J.) White, (1983) of (opinion 582, 598-599 U. S. City, 463 York (Title only where available actions damages VI), private they that notice adequate funding had federal of recipients acts Congress When issue. at conduct for liable be could legislation generates power, spending its pursuant funds, federal for in return contract: aof nature in “much condi imposed federally with comply agree States v. Halde Hospital School State Pennhurst tions.” language interpreting (1981). In 171,S.U. man, 451 speak Congress “insis[t] that thus we legislation, spending course, can, of “[t]here recognizing voice,” a clear con putative of terms [ofthe acceptance knowing no be by the [imposed conditions is unawarе tract] aif State it.” expected what ascertain unable or is legislation] 24-25. id., also Ibid.; see urge Invoking funds educational federal recipients notice no vides student-on- arising from harm damages for liable be could specifically, contend, Respondents harassment. student recipients, grant misconduct only proscribes the statute that it moreover, argue, Respondents parties. not third Clause Spending very purpose contrary would recipient funding a liability impose legislation exercise recipients whom over parties, third misconduct Independent Bryan v. Rowinsky See control. little 3d, at 80 F. Dist., School respondents agree with We only its damages under may be liable funds [per- “exclud[e] must itself recipient misconduct. own

641 sons] from participation in,... den[y] [persons] the benefits of, subjee[t] or... [persons] to discrimination under” its “pro- gram[s] or activities]” in order to be liable under Title IX. The Government’s power enforcement may only be exercised against the funding § recipient, see 1682, and we have not extended damages liability under Title IX parties outside scope power. this See National Collegiate Athletic Assn. v. Smith, 525 U. S. (1999) 459, 467, n. 5 (rejecting sug- gestion “that private right of action available under ... § 1681(a) is potentially broader than the Government’s en- forcement authority”); cf. Gebser Lago v. Vista Independent School DisL, supra, (“It at 289 would be we unsound, think, for a statute’s express system of enforcement to require notice to recipient and an opportunity to come into volun- tary compliancewhile a judicially implied system of enforce- permits ment substantial liability regard without to the re- cipient’s knowledge or its corrective upon actions receiving notice”). disagree We with respondents’ assertion, however, that petitioner seeks to hold the Board liable for G. F.’s actions instead of its own. petitioner Here, attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. In Gebser, we concluded that a recipient of federal educаtion may funds be liable damages under Title IX where it is deliberately indifferent to known acts of sexual by a teacher. In that ease, teacher had entered into a sexual relationship with an eighth-grade student, and student sought damages under Title IX for the teacher’s misconduct. We recognized that the scope of liability private damages actions under Title IX is circumscribed by Pennhursts requirement that funding recipients have notiee potential their liability. 524 S.,U. at 287-288. In- voking Pennhurst, Guardians Assn., and Franklin, Gebser we again once required “that ‘the receiving entity of federal funds [have] notice that it will be liable for a mone- 642 liability. ” damages toit subjecting before

tary award’ Comity Public v. Gwinnett Franklin (quoting atS.,U. however, recognized, 74). We also S., at U. Schools, a bar is not damages actions private limitation this intentionally violates recipient funding liability where Civil v. Assn. Guardians see 74-75; Id., at statute. (opinion supra, City, 597-598 York New Comm’n of Serv. VI). particular, In Title respect to (same J.) White, of damages private abar not does Pennhurst concluded we engages recipient funding the where IX Title under action the of terms clear the violates conduct intentional in statute. agency use the rejected Accordingly, we teach itsof misconduct the for district liability the to impute invitation declined Likewise, we atS.,U. 283. ers. 524 negligence ato amounted what liability under impose to react failure its for liable holding the district standard — should knew it which of to teacher-student district concluded we Rather, Ibid. have known. in itself the district only where damages liable be could remaining Title of violation in clear tentionally acted harass of teacher-student acts deliberately indifferent Con Id., at 290. knowledge. actual had which ment misconduct suggestion, dissent’s trary recipient’s grant as “treated not was in Gebser teacher Liability J.). Kennedy, (opinion Post, at 661 actions.” recipient not by the decision official “an rather, arose, Independent Lago Vista v. Gebser remedy violation.” “deliberate By employing supra, at Dist., School municipal lia establish already used theory indifference” § Gebser 1983, see C. § S. 42 U. 1979, Stat. Rev. bility under supra, at 290-291 Dist., School Independent Lago Vista v. S. U. Brown, 520 Cty. v. Bryan Comm’rs (citing Board (1989)), we U. S. 378 Harris, 489 v. Canton (1997), dam in liable could recipients in Gebser concluded effectively indifference deliberate own their only where ages

“cause[dj” the discrimination, 524 U. atS., 291; see also Can- supra, ton v. Harris, at 385 (recognizing that a municipality § will be liable under only if “the municipality itself causes the constitutional violation at (emphasis issue” in original)). high imposed standard sought Gebser any eliminate “risk that recipient would be liable damages its own official decision but instead for its employees’ independent actions.” 524 S.,U. at 290-291.

Gebser thus recipient established that a intentionally vio- lates IX, subject and is private to a damages action, recipient where the is deliberately indifferent to known acts of teacher-student discrimination. Indeed, whether viewed “subjecting]” “discrimination” or students to discrimi- nation, Title IX “[unquestionably placed ... [the Board] duty permit not” to teacher-student harassment its schools, Franklin v. County Gwinnett Public Schools, supra, 75, recipients violate plain Title IX’s terms they when deliberately remain indifferent to this form of misconduct.

We consider here whether the misconduct identified in Gebser—deliberate indifference to known of acts harass ment—amounts to an intentional violation capa of Title IX, ble of supporting private a damages action, when the har asser is a student rather than a teacher. We conclude that, in certain limited circumstances, it does. As an initial mat ter, in Gebser we expressly rejected the agency princi use of ples in the Title IX noting context, the textual differences between Title IX and Title VII. 524 S.,U. at 283; cf. Fara gher v. Boca Raton, (1998) 624 U. S. 775, 791-792 (invoking agency principles ground on “employer” definition of Title agents VII includes of employer); Savings Meritor Bank, FSB v. (1986)(same). Vinson, 477 U. 57, S. 72 Addi tionally, the regulatory scheme surrounding Title IX has long provided funding recipients with they notice may be liable for their respond failure to discriminatory of nonagents. acts certain Department of Education re- 644 discrimination parties for third to monitоr recipients

quires particular from refrain circumstances specified known entities outside interaction forms 106.31(d), 106.31(b)(6), §§ CFR e.g., 34 See, discriminate. (1998). 106.51(a)(3) 106.38(a), 106.37(a)(2), put has too, law, common failure their law state under responsible may held See parties. third acts tortious from protect (1965). § and Comment 320, (Second) Torts Restatement alleging that claims uphold routinely courts state fact, In stu their protect failing to negligent been have schools Bry Rupp v. g., See, e. peers. of their torts dents v. Millard 1982); (Fla. Brakatcek 658, 666-667 2dSo. ant, 680, 688 2dW. 273 N. 99-100, 86, Neb. DM., School 128, No. Dist. County School (1979); v. Grant McLeod (1953). 360, 362-363 2dP. 320, 255 316, 2dWash. identity say that is not This indifference” the “deliberate contrary, both theOn vant. narrowly circumscribe IX of Title language standard sexual acts of known whose parties set funding re- part of on the respond duty to some trigger can theory of aas sense makes indifference Deliberate cipients. recipi- funding only where liability under direct recipi- A alleged harassment. over control some has ent it lacks where indifference for its directly liable cannot be ent action. authority remedial to take language have recipient the requirement the conjunction with damages— liable to be prohibitions IX’s of Title notice pro- statute the range of misconduct the cabins scope of language confines plain statute’s scribes. of control degree recipient’s based conduct prohibited harass- in which environment and the the harasser over har- engage in not recipient does funding If a occurs. ment its damages unless liable be may directly, assment harass- its “subject[s]” indifference deliberate raent. That is, the deliberate indifference must, at a mini- mum, “cause [students] undergo” harassment or “make them liable or vulnerable” to it. Random Dictionary House English Language (1966) (defining “subject” as “to cause undergo the action of something specified; ex- pose” or “to make liable or lay open; vulnerable; expose”); Webster’s Third New (1961) International Dictionary 2275 (defining “subject” as “to cause to undergo or submit to: make particular submit to a EXPOSE”). action or effect: Moreover, because the harassment must occur “under” “the operations funding of” a recipient, § see 20 1681(a); U. S. C. §1687(defining “program activity”), the harassment must place take in a subject context to the school district’s control, Webster’s Third New International Dictionary, supra, at 2487 (defining “under” as “in or into a condition subjection, regulation, or “subject subordination”; guidance to the of”); instruction Random House Dictionary, supra, at 1543 (defining “subject “under” as to the authority, direction, or supervision of”). These factors combine recipient’s to limit a damages liabil- ity to circumstances wherein recipient exercises substan-

tial control over both the harasser and the context in which the known Only occurs. then can recipient “expose” said to its students to harassment or “cause” them to undergo it “under” recipient’s programs. We agree with the dissent that these conditions are satisfied easily most obviously most when agent offender is an of the recipient. Post, at 661. rejected We the use of agency analysis in Gebser, however, and disagree we the term “under” imports somehow agency an requirement into Title IX. post, See at 660-661. As noted above, the theory in Gebser was recipient directly was liable for its deliberate indifference to discrimination. supra, See Liability 642-643. in that ease did not arise because the “teacher’s [were] actions treated” as those of funding re- cipient, post, at 661; the district directly was liable for its 646 im- "under” and “subjee[t]” terms to act. failure own use the requires terms these nothing about limits, but

pose principles. agency of misconduct, in F.’s of G. bulk grounds school

and —the taking misconduct classroom—the the place in fact, took See recipient. funding the of "operation” an "under” place (finding liabil at 661 3d, F. 138 Illinois, University v.Doe of “student-on- properly respond fails school ity where stu the while place takes that harassment sexual student the under or otherwise activities school in involved dents supervision circumstances, these In employees”). of school in context the over cоntrol substantial retains recipient the however, importantly, More occurs. which over control significant exercises Board setting the this in na “that example, observed, haveWe harasser. cus schoolchildren]is public [over power State’s] [the ture and supervision degree of tutelary, permitting todial Ver adults.” free over exercised not be could control (1995). 655 646, S.U. Acton, 515 v. Dist. 47J School nonia recognized has Court occasion, this one than more On authority..., “comprehensive officials’ importance safeguards, to constitutional fundamental consistent v. Des Tinker schools.” conduct control prescribe 503, S. U. Dist., 393 Community School Independent Moines 325, S.U. 469 O., L.T. Jersey v. New (1969); also see schools discipline in (“The (1985) maintenance 9n. 342, assaulting restrained be only students requires committing alcohol, drugs and abusing another, one themselves conform students crimes, but other authorities”); by prescribed conduct standards behav influence ability (“The control 3d, F. than classroom extent greater an even exists ior recognizes too, law, .”). common . . workplace (Second) of Restatement authority. See disciplinary school’s fed recipients conclude (1965). thusWe §152 Torts them “subject[ing3” may liable funding eral to discrimination where recipient is deliberately indiffer- ent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority. events question here, in fact, school attorneys and administrators were being told that student- on-student harassment trigger could liability under Title IX. In March 1993, even as the alleged events petitioner’s complaint were unfolding, the National School Boards Asso- ciation publication, issued a by for use “school attorneys and administrators in understanding the law regarding sexual harassment of employees and students,” which observed that districts could be liable under Title IX for their failure to respond to student-on-student harassment. See National School Boards Association Council of School Attorneys, Sex- ual Harassment in the Schools: Preventing and Defending Against (rev. ed.). v, Claims 45 Drawing Equal on Employ- ment Opportunity guidelines Commission interpreting Title VII, publication informed districts that, [a] “if school dis- trict has constructive notice of severe repeated acts of sexual harassment by fellow students, may form the basis [TJitle of a IX claim.” Ibid. publication even correctly anticipated a form of Gebser’s actual require- notice ment: “It unlikely that courts will hold a school district liable for sexual against students the absence of actual knowledge or notice employ- district ees.” Sexual Harassment in stipra, Schools, at 45. Al- though we rely do not publication this as an “indicium of congressional notice,” post, see at 671, we do find support for our reading of Title IX in the fact that school attorneys have rendered an analogous interpretation.

Likewise, although they were promulgated too late to con- tribute to the Board’s proscribed notice of misconduct, the Department of Education’s Officefor Rights (OCR) Civil has recently adopted policy guidelines providing that student- on-student harassment falls within the scope of Title IX’s proscriptions. See Department of Education, Officeof Civil Stu Harassment Guidance: Harassment Sexual Rights, Par Third Students, Other Employees, by School dents (OCR Title (1997) 12039-12040 12034, Reg. Fed. ties, 62 In Education, Racial Department Guidelines); see Educational Students Against Harassment cidents (1994). 11448, 11449 Reg. Fed. 59 Institutions, our that stress We of acts known to indifference deliberate their for liable can recipients mean harassment —does sexual peer actionable of schools their purging only liability avoid par- engage must administrators or that harassment peer respond- disagree thusWe action. disciplinary ticular action of cause provides IX Title if that, contention ents’ expul- of short “nothing harassment, student-on-student involving sexual misconduct accused every student sion liability or from systems school protect would overtones damages.” 3d, F. 120 see 16; Respondents Brief See or suspend immediately must (“[A] J.) (Tjoflat, at Likewise, harassment”). sexual accused student expel a harass- peer victims imagines erroneously dissent remedial particular make right IX a Title have now ment could victim (contemplating at post, See demands. pre- have we fact, In assignment). desk new demand second-guessing refrain should courts noted, viously administrators. by made decisions disciplinary 9. 342-343, n. at supra, O., L. Jersey v. T. New School “delib- deemed recipients funding long as so require they harassment of student-on-student acts erately indifferent” lack response recipient’s only where circum- known light of clearly unreasonable thereof this consistently miseharaeterizes dissent stances. har- peer “remedy” recipients funding require standard “ensur[e] that... 668,683, 662, 658, at post, assment, post, rules, certain to” conduct their conform contrary, theOn requirements. sueh no imposes

the recipient must merely respond to peer known harass- ment in a manner that is not clearly unreasonable. This is not a mere “reasonableness” standard, as the dissent as- sumes. See post, at 679. In an appropriate case, there is no why reason courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a re- sponse as not “clearly unreasonable” as a matter of law. post,

see at 664-668, we acknowledge that school administrators shoulder substantial burdens as a result legal constraints on their disciplinary authority. To the extent these restrictions arise from federal statutes, Congress can review7-these burdens -withattention to the difficult position in which legislation such may place our Nation’s schools. We believe, however, that the stand ard set out here is sufficiently flexible to account both for the level of disciplinary authority available to the school and for potential liability arising from certain forms of disciplinary action. A university might not, example, for be expected to exercise the degree same of control over its students grade that a enjoy, would see post, at 666- 668, and it would be entirely reasonable for a school to re frain from a form of disciplinary action that would expose it to constitutional or statutory claims. can show that the response Board’s reports of G. F.’s misconduct

was clearly unreasonable in light of the known circum- petitioner stances, may be able to show that the Board “sub- jected]” LaShonda to discrimination failing respond in any way over a period of five months complaints of G. F.’s in-sehool misconduct from LaShonda and other female students.

B The requirement that recipients receive adequate notice of Title IX’s proscriptions also bears on proper definition of “discrimination” in the private context of a damages action. We have elsewhere concluded that sexual harassment is a Title that purposes IX Title discrimination form satisfy clarity to sufficient proscribes basis a serve requirement notice Pennhurst’s Independent Lago Vista v. Gebser See damages action. County v. Gwinnett Franklin 281; atS., Dist., 524 U. School de previously Having 74-75. atS.,U. Schools, Public in the “discrimination” harassment” “sexual termined to conclude constrained are IX, we under context sufficiently if harassment, sexual student-on-student ac discrimination level rise likewise can severe, Dept. Kentucky v. Bennett See statute. under tionable in claim (1985) (rejecting 656, 665-666 U. S. Ed., of sufficient clear made statute where Pennhurst under notice federal receipt of on placed conditions some were there iden “specifically not Congress need noting that funds, and legislation). condition each proscrib[e]” tify] and give content help moreover, prohibitions, other statute’s not Students context. this “discrimination” term specifically but discrimination, from only protected “de or in” participation from being “excluded shielded activity re program any “education of” benefits nied 1681(a). stat § assistance.” financial ceiving Federal prohibits, else whatever that, clear makes ute oppor benefits educational access denied must fund conclude thusWe gender. the basis tunities only where damages liable held properly recipients are ing harassment, to sexual deliberately indifferent they are perva severe, is so knowledge, actual they have which deprive said can objectively offensive sive, ben opportunities educational of access victims by the school. provided efits student-on-student example obvious most would damages claim triggering capable of access deprivation physical overt, involve thus which a case example, Consider, for resources. every peers female their threaten physically male

day, successfully preventing the female students using a particular school resource—an athletic field or a computer lab, for instance. District administrators are well aware daily yet ritual, they deliberately ignore requests for aid from the female students wishing to use the resource. The district’s knowing refusal to any take action response such behavior fly would in the face of Title princi IX’s core ples, and such deliberate may indifference appropriately be subject to claims for monetary damages. It is not necessary, however, to physical show exclusion to demonstrate that stu dents have deprived been by the actions of another student or students of an educational opportunity on the basis of sex. plaintiff Rather, a must establish sexual harassment of stu dents that is so pervasive, severe, and objectively offensive, and that so undermines and detracts from the victims’ educa tional experience, that the victim-students are effectively equal denied access to an institution’s resources and oppor tunities. Cf. Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 67. gender-oriented

Whether conduct rises to the level of actionable “harassment” “depends thus on a constellation of surrounding circumstances, expectations, and relationships,” Oncale v. Sundowner Services, Inc., 523 Offshore U. S. 75, (1998), including, but not limited to, ages of the har asser and the victim and the number of individuals involved, see OCR Title IX Guidelines 12041-12042. Courts, more over, must bear in mind that schools are unlike the adult workplace and may children regularly interact ‍‌‌​​‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​‌​​​​​‌​‌‍in a man ner that would be unacceptable among adults. e.g., See, Brief for National School Boards Association et al. as Amici Curiae 11 (describing “dizzying array of immature... behav by students”). iors Indeed, at early least on, students are still learning how to interact appropriately with peers. their It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students acts simple available not are Damages it. to subjected however, children, among school name-calling teasing and of gender. in differences target comments these where even harassment, student-on-student context the Rather, severe, sois behavior the only where available damages are victims its denies it that offensive objectively and pervasive, to designed is IX Title that education to access equal the protect. not It is IX. Title liability under recipient’s funding

aon to opinion this read would dissent the show, as enough to 678, or at post, “teased,” been has student a provide, to Comparisons 680. at post, names,” offensive . . . “called other because gym class skips who child “overweight an “refuses who student size,” her about her tease children ” “the ‘four-eyes,’ taunts avoid to glasses wear to bully because go to to refuses who child inappo- 678, at post, recess,” ‘searedy-eat’ a him calls hold, less much contemplate, do we misleading. Nor site a motion survive” enough to grades “decline mere a grades LaShonda’s dropoff in Post, at dismiss. to her between link potential aof necessary evidence provides ability petitioner’s but misconduct, F.’s G. education alleged equally depends here claim cognizable state mention not actions, F.’s severity G.of persistence We indifference. deliberate knowledge and alleged Board’s will opinion our characterization dissent’s trust liability than sweeping more impose courts mislead require. read we Moreover, suggests activity” or program any education

“under effect systemic have enough to serious be behavior program educational an access equal victim denying suffi- instаnce single theory, a Although, activity. said could peer one-on-one ciently severe Congress would unlikely that think we effect, an such have thought have such behavior sufficient to rise this level in

light of the inevitability of student misconduct and the amount litigation that would by be invited entertaining claims of officialindifference single to a instance of one-on- peer one By harassment. limiting private damages actions systemic having cases a effect on educational programs or activities, we general reconcile the principle that Title IX prohibits official indifference to peer known sexual harass- ment with practical realities of responding to student behavior, Congress realities that could not have meant to be ignored. Even the suggests dissent that Title liability may arise when a funding recipient remains indifferent to gender-based severe, played mistreatment out on a “wide- spread among level” students. Post, at 683. The fact that it was a teacher engaged who in harassment in Franklin and Gebser is relevant. The relationship be- tween the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title guarantee IX’s equal access to educational benefits and systemic to have a effect on a program or activity. Peer particular, harassment, likely less satisfy these re- quirements than is teacher-student harassment.

C Applying this standard to the facts at issue here, we con- clude that the Eleventh Circuit erred in dismissing petition- complaint. er’s alleges Petitioner daughter her was repeated victim of acts of sexual by harassment G. F. over a period, 5-month and there allegations in support of the conclusion that G. F.’s misconduct was pervasive, severe, objectively offensive. The harassment was only verbal; it included numerous acts objectively offensive touching, and, indeed, G. ultimately F. pleaded guilty to criminal sex- ual misconduct. complaint Moreover, the alleges that there were multiple victims who were sufficiently disturbed G. F.’s misconduct to sеek an audience with the prin- had contends petitioner Further, eipal. re- ability to daughter’s her on effect negative concrete, peti- suggests complaint an education. ceive delib- knowledge and actual both show may able tioner no made which Board, part indifference erate end put an toor investigate either whatsoever effort harassment. the [peti doubt “beyond say cannot we complaint, thisOn [her] claim of support facts of set prove no tioner] can Gibson, 355 Conley v. relief.” to [her] entitle would which S.U. Rhodes, 416 v. Scheuer (1957). See 41, 45-46 S.U. will plaintiff whether (“The is (1974) issue 236 232, to entitled is claimant the but whether prevail ultimately the claims”). Accordingly, the support evidence offer the for Appeals of Court States of United judgment remanded is case and reversed, is Circuit Eleventh opinion. this with consistent proceedings further ordered. so

It is Jus- Justice, Chief whom with Kennedy, Justice dissenting. join, Thomas Justice and Scalia, tice “ authorize ‘to power Congress’ held has Court not lim- purposes public moneys for public of expenditure found power legislative of grants by direct ited ” 207 203, S.U. Dole, 483 v. Dakota South Constitution.’ 66 1,S.U. 297 Butler, v. States (1987) United (quoting Spending its use Congress can consequence, (1936)). aAs I’s “Article of outside objectives pursue power Clause attaching conditions by fields’” legislative ‘enumerated under- So at S., U. funds. federal of grant con- without wielded if power, Clause Spending stood, the obliterate potential balance, has federal cern interest spheres local national between distinctions pol- set Government Federal permitting power icy in the most sensitive areas of traditional state concern, areas which otherwise would lie its outside reach.

A safeguard vital for the federal require- balance is the ment Congress that, when imposes a condition on the States’ receipt of federal funds, “must do so unambiguously.” Pennhurst State School Hospital v. Halderman, 451 (1981). 1,S.U. As majority acknowledges, “legisla- tion pursuant enacted spending to the power is much in the nature a contract,” legitimacy and the Congress’ exer- power cise of its funding condition compliance state congressional conditions “rests on whether the State voluntarily knowingly accepts the terms of the ‘con- “ tract.’” Ibid.; ante, see at 640. ‘There can, course, be no knowing acceptance [ofthe putative terms of the contract] if a State is unaware of the [imposed by conditions legis- lation] or is unable to ascertain expected what is it.’” Ibid, (quoting 17). Pennhurst, 451 U. atS.,

Our “Congress insistence that speak with a clear voice” to “enable the States to exercise knowingly, their choice cogni- zant consequences of the of participation,” their ibid., is not upon based some abstract notion of contractual fairness. Rather, it is a safeguard concrete in the system. federal Only if States receive clear notice of the conditions attached to federal funds they guard can against excessive federal intrusion into state vigilant affairs and be policing in the power. boundaries of federal supra, Cf. Dole, at 217 (“If dissenting) J., spending power the (O’Connor, is to be only limited Congress’ general notion of the welfare, the reality, given the vast financial resources of the Federal Gov- ernment, is that the Spending gives ‘power Clause to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to parliament become a of the people, whole subject to no restrictions save such self-imposed’” as are (quoting 78)). supra, Butler, at While majority the purports give effect to these principles, it eviscerates the dear- notice safeguard of our Spending jurisprudence. Clause 656 provides: IX

Title sex, be “No person [1] excluded in the United participation States shall, in, on ^[2] the basis denied of to discrimination subjected [3] be or of, benefits receiving Fed- activity program any education under 1681(a). §C. U. 20 S. assistance.” financial eral most what understand tois full provision read To does Title case: this application its striking about whatsoever, action of cause any private creatе by its terms damages money in which circumstances define less much under action of cause only private are available. Chi- University v. Cannon See implied. judicially IX is (1979). S. cago, U. of ac- cause private imply a deciding when standards subject. on is silent which statute a federal under

tion bounds judgment judicial try conform We in Gebser observed we but, as purpose congressional likely (1998), S. Dist., 524 U. Independent School Lago Vista v. general, action cause private scope defining a “inherently entails particular, remedy in damages and the which issue an addresses since speculation, degree of Id., spoken.” specifically has not Congress at issue statute When troubling because particularly speculation is element this Spend- requirement tension significant in isit con- the of notice clear give States legislation ing Clause Without funds. federal acceptance their sequences liability one of is damages potential scope of doubt, the deciding consider would a school factors significant most Court Accordingly, the funds. federal receive whether damages unless action cause private imply a not must to create purpose congressional that demonstrate can it State, manifest so is action implied cause accepting when federal funds, had clear notice of the terms and conditions monetary of its liability.

Today the Court fails to heed, or even to acknowledge, these limitations on its authority. The remedial scheme the majority today creates is neither sensible nor faithful to Spending principles. Clause In order to make its case for liability peer sexual harassment, majority must Congress establish that gave grant recipients clear and unambiguous they notice that would be liable in money dam- ages for failure remedy discriminatory acts of their stu- dents. majority The must also demonstrate that the statute gives schools clear notice that one child’s harassment of an- other constitutes “discrimination” on the basis of sex within meaning of Title IX, and applied that —as to individual cases—thе liability standard for will grant enable the re- cipient distinguish inappropriate childish behavior from gender actionable discrimination. majority The does not carry these burdens. Instead, the majority statutory clarity finds where there is none and discovers congressional indicia of notice to the States the most places. unusual of It treats the issue as one of statutory routine construction alone, and it errs even regard. in this In end, majority only imposes liability States unexpected was and unknown, but the contours of yet, which are, as unknowable. majority’s The opinion purports to be narrow, but limiting principles it proposes illusory. The fence the Court has built is made of little sticks, and it cannot contain the liability avalanche now set in potential motion. costs to our schools of to- day’s decision are difficult to they estimate,- but great are so unlikely is most Congress intended to inflict them. only certainty flowing majority’s from the decision that scarce resources will be diverted from educating our children and many desperate districts, to avoid peer Title IX harassment suits, adopt will whatever federal code of student conduct discipline Department of Ed- school- Nation’s The upon them. impose tofit sees ueation federalism about lessons first their learn will children ever- the is Government Federal the where classrooms in- have will Government Federal regulator. present areas traditional most the of only one into not itself sinuated areas sensitive most of one into but concern state of of discipline of control federal This affairs. human of traditions contrary to our is schoolchildren Nation’s our schools. our administration sensible inconsistent notice unambiguous give States not did IX Title Because Federal ceding to meant funds federal accepting that deci- disciplinary day-to-day over power Government I dissent. schools, sions I decision. majority’s difficulty with first I turn be- harassment sexual peer liable held be cannot

Schools unambiguous clear them give not IX does Title cause remedy failure damages for thеy liable notice majority acknowl- theAs students. by their discrimination recipi- grant only misconduct prohibits IX edges, Title 640-641 at Ante, parties. by third misconduct ents, partici- from [persons] ‘exclud[e] must (“The recipient itself subjee[t] or... of, benefits den[y] [persons] in,... pation activi- or ‘program[s] its under’ discrimination [persons] majority IX”). The Title under liable order ties]’ in “subjects” its nevertheless, argues, fails peer knows when discrimination appropriately. respond mere pri- Gebser, the recognized we As argument.

majority’s federal recipients prevent “to IX Title purpose mary discriminatory in a funds using assistance financial in Gebser stressed We at S.,U. manner.” recipient, grant by the discrimination prevents IX Title itsof acts principals itsof acts through the whether VI Title (explaining id., See agents.

659 “operate in the same manner, conditioning an offer of federal funding promise on a by the recipient not to discriminate, in what amounts essentially to a contract between the Govern- ment and recipient funds”). “[W]hereas Title VII aims eentrally to compensate victims of discrimination, Title IX focuses more on ‘protecting’ individuals from discrimina- tory practices by carried out recipients of federal funds.” Id,, at 287. The majority does not even attempt argue that the school’sfailure to respond to discriminatory by acts students is by discrimination the school itself.

A any In plaintiff event, a cannot establish a Title IX viola- tion merely by showing that she has crimination.” Rather, a violation of Title IX “subjected been to dis- only occurs if she “subjected is to discrimination any under pro- education gram or activity,” § 20 1681(a), U. S. C. where “program or activity” is defined as “all of the operations grant of” a recipi- § ent, 1687. Under the most natural reading of provision, this discrimi- nation violates Title IX only if it is by, authorized or in ac- cordance with, the actions, policies activities, or grant of recipient. See Webster’s Third New International Diction- (1981) ary 2487 (defining “under” as “required by: in accord- ance with: by”); bound American Heritage Dictionary 1395 (New College 1981) ed. (defining “[w]ith “under” as the au- thorization of; by; attested of”); virtuе Random House Dictionary of English (2d Language 1987) (de- 2059 ed. fining “under” as “authorized, warranted, or by” attested or “in with”); accordance see also 48 Words and Phrases 149- (1969) “ 152 (citing cases defining “under” as, inter alia, ‘in accordance with’ and ‘in conformity with’ ”; “indicating sub- jection, guidance or control, and meaning ‘by authority of’”; “ “ ‘by,’‘by reason ‘by of,’ or means ‘by ”;of’ and virtue of,’ which is defined... as meaning T>y through or authority ”). of’ This reading reflects the legal common usage of the 660 asor with, accordance to, pursuant mean “under”

term Ashcroft, v. Gregory g., e. by. See, provided authorized stated nowhere Congress (“Because (1991) 452, S.U. States obligations mandatory impose intent its not do Congress did we concluded powers, §5 its under claimawas claims petitioner’s (“Among so”); ante, at ...”). under relief injunctive monetary and then, enough, It control.” district’s the school subject to a “context in occur “con- actually be must discrimination 645. Ante, at inor to, pursuant by, authorized be is, by” trolled —that ante, Compare actions. or policy with, school accordance sub- a condition into “in or of (defining “under” 645 added)), with (emphasis or subordination” regulation, jection, in- guidance “subject to as added)). (defining ibid, “under” (emphasis of” struction consistent reading is This grant “operations” “under” be must crimination af- active connotes “operations” term

recipient. The merely in- recipient, not grant by the participation firmative Dictionary Law Black’s respond. See failure or action “[ejxertion of anas “operation” 1990)(defining (6th ed. 1092 effect an action; mode or operating process power; action; plan; definite a in accordance brought about activity”). is harassment sexual Teacher but circumstances, activity certain in or program school’s recog- Gebser decision Our not. student thus, agents through its acts recipient grant nizes acts tortious even circumstances, limited certain under noted We school.' attributable may be teachers “em- defines which VII, contrast that, Gebser compa- no “contains IX “any agent” include ployer” —Title ‘agents,’ and institution’s еducational to an reference rable princi- agency application call expressly does so incor- declined we result, aAs atS.,U. ples.”

porate principles of agency liability, such as a appli- strict cation of vicarious liability, that would conflict with the Spending Clause’s requirement notice express Title IX’s administrative enforcement scheme.

Contrary to majority’s assertion, ante, at 643,however, we did not abandon agency principles altogether. Rather, sought we in Gebser to identify those employee actions which fairly could grant attributed recipient by superim- posing additional Spending Clause requirements notice traditional agency principles. (“Title S.,U. at 288 important contains clues Congress did not intend to recovery allow in damages liability where rests solely on principles of liability vicarious notice”). constructive We concluded that, because of the Spending Clause overlay, a teacher’s discrimination is attributable to the only when the school has actual notice of that harassment and is “deliberately indifferent.” agency relation between the school and the teacher is thus a necessary, but not sufficient, condition of liability. Where the heightened require- ments for attribution are met, the teacher’s actions are treated grant as the recipient’s actions. In ‍‌‌​​‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​‌​​​​​‌​‌‍those circum- stances, then, the teacher sexual harassment is “under” the operations of the school.

I am aware of no basis in law or fact, however, for attribut- ing the acts of a student to a school and, indeed, majority the does argue not that the school acts through its students. (“We See ante, at 641 disagree respondents’ asser- tion . . . petitioner that seeks to hold the Board liable for G. F.’s actions instead of its own. petitioner Here, attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools”). Discrimination one against student another therefore cannot be “under” the program school’s or аctiv- ity required by Title IX. The majority’s imposition of liability peer for sexual harassment thus conflicts with the most natural interpretation of Title IX’s program “under 662 least, very the liability. At on school activity” limitation that claim implicit majority’s the reading undermines my remedy to duty schools on unambiguous an imposes Title harassment. sexual

peer

B program” the “under the disregard its aside Quite flawed reading is majority’s IX, the Title limitation delib- a school’s that contends majority The respects. other “subjects” student known to indifference erate un- [students] “cause[s] is, to harassment —that recog- majority 645. Ante, at dergo” harassment. on limitation some must there however, nizes, said fairly be can conduct third-party with- asserts, majority principle, of a search In cause. when discrimination causes one elaboration, much out discrimination over control” “degree of has some one Ante, at remedy it. fails to understand test majority’s To state major- line-drawing. arbitrary exercise an than

more degree what determine arewe how explain ity does States how point, to the or, more is sufficient— control line draw would Court notice clear were students. encompass an limits outer usually mark principles Agency whom over individual an actions liability ty’s Raton, Boca v. Faragher Cf. control. some exercises delimit principles agency (1998) (applying S. U. El v. Industries, Inc. Burlington liability); employer VII example, Court, (same). (1998) S. 524 U. lerth, nonagents actions liability for recognized not has right of private express an n under contains which VII, Title majority legislation. Clause Spending is action on limitation agency an rejects out-of-hand nonetheless As reading Gebser. cramped its liability based IX noted above, the Gebser rejected Court impor- wholesale tation of federal agency common-law principles into Title IX expand liability beyond that which the clearly statute pro- it did hibited; not, as the majority would reject have it, proposition that liability by limited agency princi- ples. Indeed, to suppose Congress rejected would have principles well-established agency law in favor оf the ma- jority’s vague control principle turns Gebser on its head. Gebser contemplated that Title liability would be less expansive than Title VII liability, not more so. See Gebser, supra, at 286-287.

One would think that majority would at least limit its control principle by reference to long-established prac- tice of Department (DOE). of Education For the first 25 years after passage of Title IX—until 1997—the DOE’s regulations drew the liability line, at its most expansive, to encompass only those to whom the delegated its offi- cial § functions. 106.51(a)(3) See 34 (1998) CFR (“A [grant] recipient shall not enter any into contractual or other rela- tionship which directly indirectly has the subject- effect of ing employees or students to prohibited discrimination subpart, this including relationships with employment agencies, referral with labor unions, and organizations providing or administering fringe benefits to employees of the recipient”). It is perhaps reasonable to suppose grant recipients were on notice that they could not hire third parties to do for them they what could not do themselves. For example, might be reasonable to find that a school was on notice that it could not circumvent Title IX’s core prohibitions by, for example, delegating its admissions deci- sions to an outside screening committee it knew would dis- criminate on the gender. basis of Given the gender state of discrimination law at the time Title IX passed, was however, there is no basis to think that Congress contemplated liability for a school’sfailure to rem- edy discriminatory acts by students or that the States would 664 obligation a clear them on imposed the statute

believe concept 1972, enacted was Title When do so. been not had discrimination as gender harassment” “sexual C. generally See courts. by considered or recognized A Case Women: Working Harassment MacKinnon, Sexual discrimi- (1979). types 59-72 Discrimination of Sex admissions recognized discriminatory were nation — resources, hiring, or to programs of access standards, denial e.g., 20 See, students. engaged not be etc.—could IX prohi- application 1681(a)(2) (referencing §C. U. S. admissions). bitions

2 to justify no need see appears nonetheless The majority students. encompass line control” “enough drawing much students its over control a school’s however, truth, In acknowl- majority than limited complicated more in the students its control not does A public edges. it contracts. whom those or its teachers it controls way students, and select screen do schools Most public unfettered. is far students to discipline their power obligated are generally schools Public boundaries. geographic defined within live who students all country State every of almost the Constitution Indeed, second- free primary the State’s guarantees §5; e.g., Cal. IX, Art. Const., See, education. ary public 1; Ind. 1,§ VIII, ¶ Art. Const., §2; IX, Ga. Const., Art. Colo. Const., Mo. 1;§ VIII, Art. Const., 1;§ Md. VIII, Const., Art. Const., Art. J. 1;§ N. VII, Art. Const., 1(a); Neb. IX, § Art. Const., Art. Y. §1; N. XII, Const., Art. M. ¶1; N. §4, VIII, Art. Const., 2; Okla. VIII, §§ Const., Art. D. 1;§ N. XI, 1; §VII, Art. Const., § Tex. 8; XI, Const., Art. 1; S. C. XIII, § 2; 1 and IX, §§ Art. Const., 1; Wash. VIII, § Art. Const., Va. States, some least In at §§ VII, Art. Const., Wyo. educate schools duty continuing ais there moreover, e.g., See, or expelled. are suspended who even students Phillip Leon M. v. Board Education, 199 W. 400, Va. (1996) S. E. 2d 909 (holding that the education clause of the Virginia West Constitution confers on students a fundamen- right tal to an education requires county that a board provide alternative programs, educational such as an alternative school, to students who expelled or sus- pended for an period extended for bringing guns school). Schools that remove a harasser from the classroom and then attempt to fulfill their continuing-education obligation by placing the any harasser in kind of group setting, rather than by hiring expensive tutors for each student, will find them- selves at continuing risk of Title IX brought suits by the other students in the alternative program. education addition, federal imposes law constraints on school dis- ciplinary actions. This Court has held, example, for process due requires, “[a]t very minimum,” that a stu- dent facing suspension given “be some kind of notice and afforded some kind of hearing.” Goss Lopez, v. 419 U. S. (1975). 565, 579 with Disabilities (IDEA), Education Act § 20 U. (1994 S. C. 1400 seq. et Ill), ed., Supp. moreover, places strict limits on ability of schools discipli- take nary against actions students with behavior disorder disabil- ities, even if the disability was diagnosed prior to the incident triggering discipline. g., § 1415(f)(1) See, e. (parents entitled to hearing when proposes ehange disabled student’s placement); § educational 1415(k)(l)(A) (school au- only thorities can “order change a placement of a child with a disability ... an appropriate interim alternative educational setting, another setting, suspension” or up “10 school days” unless student’s offense weapon involved a illegal or § 1415(k)(8) drugs); (“[A] child who has not been determined to be eligible special education ... and who has engaged in behavior that any [school violated rule] may any assert protections” of the subchapter if the school “had knowledge ... that the child was a child with a disabil- disciplinary ac- precipitated ity behavior before have (school 1415(k)(8)(B)(ii) “deemed § occurred”); tion disability if... awith a child knowledge child a need demonstrates child of the performance behavior services”). “Disabil- related] [special education for such dis- emotional “serious includes IDEA, in the defined ity,” as de- turn, has DOE, 1401(3)(A)(i), § which turbance,” period long a over exhibiting . . . a “condition fined adversely child’s a affects degree that marked and to time maintain or “inability build an performance,” educational peers and relationships with interpersonal satisfactory feelings or behavior types of “[ijnappropriate teachers,” (1998). 300.7(b)(9) § 34 CFR circumstances.” normal under that behavior believe, us have majority would If, as deviates so harassment peer sexual actionable constitutes that adolescence jostling of teasing and normal liability, a stu- then potential of notice clear on puts schools a least may have engages in such who dent within disturbance emotional severe of elaim colorable disciplinary sanction imposing When IDEA. meaning of the IDEA colorable a might assert who harasser a student on statutory web complex navigate a must school elaim, the its limit significantly regulations DOE provisions discretion. ensuring encounter schools practical obstacles ac- conduct their conform immаture thousands legal than significant may more even be ceptable norms meas- same exercise cannot districts School obstacles. they over do of students thousands over of control ure resources limited employees. adult hundred fewa services. educational basic conserved must schools our serious with deal even resources lack schools Some dis- with already overwhelmed of violence problems kinds. all problems of ciplinary assumptions broad startling its than more Perhaps even secondary stu- school primary and over control about majority’s dents is the grapple any failure to meaningful way with the distinction elementary between secondary schools, on the hand, one universities the other. The majority argument bolsters its that schools can control their by students’ quoting actions our decision in Vernonia School Dist. v. (1995), Acton, 515 U. S. 646, 655 proposi- 47J for the tion that [the “'the power State’s] nature [over public children] tutelary, is custodial and permitting degree supervision and control that could not be exercised over free adults.’” Ante, at majority’s 646. Yet the holding appear would apply equal force to universities, which do not exercise tutelary power custodial and over their adult students. university’s

A power discipline speech its students for may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already problems confronted difficult raised university speech designed codes peer to deal with sexual and racial harassment. g., See, e. Dambrot v. Central Univ., Mich. (CA6 1995) F. 3d 1177 (striking university down discrimina tory policy harassment because vague, it was overbroad, and prohibition not a valid words); fighting on Post, UWM Inc. Regents v. Board System, Univ. Supp. Wis. 774 F. of of of (ED 1991) 1163 (striking Wis. university speech down code “ ” prohibited, that alia, inter 'discriminatory comments’ di “ ” rected at an 'intentionally... individual that demean’ the “ ” “ ‘[cjreate 'sex ... of the individual’ and intimidating, an demeaning hostile or environment for university education, related university-authorized work, or other activity5”); Doe University (ED v. Mich., Supp. 1989) 721 F. 852 Mich. of (similаr); Chapter Sigma Iota XI Fraternity George Chi v. of (CA4 1993) Mason Univ., F. 993 2d 386 (overturning on First grounds university’s Amendment sanctions on fraternity a for conducting “ugly an woman contest” with “racist and overtones). sexist” simply under- speech codes with associated difficulties The student over university’s control aof nature limited the

score De- harassment. sexual as may viewed be that behavior assumption that the on relies majority the fact spite the students their over control great deal a exercise schools first the in of action cause private creating the justify to a univer- on limits obvious recognize the does instance, it the to doubt a reason as its ability control to sity’s harassment. peer of action cause private aof propriety the determining whether in a factor them simply uses It ante, at See reasonable. response was university’s illustrates test its control presentation majority’s than Rather devised. has it rule the with discomfort its own majority the itself, IX Title language the beginning discover to appears Gebser our decision begins with prin- agency duty legal sweeping a —divorced there discrimination third-party remedy to schools ciples—for DOE’s the finds then majority against students. the gave States law common state regulations IX Title damages fail- liable they would notice requisite majority turn the Only does then duty. this to fulfill ure duty a find appears, not, itself— language assumes majority States, for notice clear suggest a limit rather established, but already been has majority thinks liability the scope breathtaking (“These fac- ante, See statute. under clear is so recipient’s “under”)] limit combine [(“subjects” tors recipient wherein liability circumstances damages hauasser both over control substantial exercises occurs”). known which context course, not, did Gebser in decision Our remedy dis- to duty schools on legal freestanding ill-defined, gave Gebser particular, In parties. by third crimination liable might they whatsoever notice no schools majority’s theory novel “subjects” that a school a student to third-party if discrimination it exercises some measure of party. control over the third quoted We “subjected language discrimination” only once in Gebser, when we quoted the text Title IX full, and we did not use the word “control.” Instead, we prohibits affirmed that Title IX by grant discrimination recipient. See Gebser, 524 S.,U. 286; id., at supra, 291-292; at 658-659.

Neither the regulations DOE’s Title IX nor state tort law, moreover, provide or could did required States the by notice Spending our principles. Clause majority contends that regulations DOE’s Title IX “long provided have funding recipients with they may notice that be liable for their failure respond discriminatory acts of nonagents.” certain Ante, at assuming 643. Even regulations DOE could give requisite schools the they notice, did not do so. Not one regulations of the majority suggests cites may schools be held money damages liable for failure to respond third-party discrimination.

In addition, as regulations above, discussed pro- DOE support vide no proposition for the that schools were on notice among students were “nonagents” those whose actions the schools were bound remedy. Most reg- of the ulations cited majority merely grant forbid recipients give parties affirmative aid to third who discriminate. §106.31(b)(6)(1998) (A See CFR grant “recipient shall not, on “[a]id of sex,” basis perpetuate or discrimination against any person by providing significant any assistance to agency, organization, person or which discriminates on the basis of providing any sex aid, benefit or service to stu- dents employees”); § or 106.37(a)(2)(A see grant recipi- ent not, shall “[t]hrough listing, solicitation, approval, provi- sion of or facilities other services, any assist foundation, agency, trust, organization, person provides which assist- any ance to recipient’s such students in a manner which 106.38(a) § discriminates on sex”); (A the basis of grant recip- in person or organization agency, any assists “which ient [sjhall students its any of to available employment making without available made is employment sueh itself assure [sjhall render not [and] sex of basis on discrimination which person or organization, agency, any to services sueh prac- employment its in sex of the basis on disсriminates tices”). delegate to recipients grant forbid others services and (or benefits employee) student provision admin- in discrimination gender in engage who parties third See program. school’s effect, is, istering what any into enter not shall recipient 106.51(a)(3)(“A [grant] § indirectly directly or relationship which other or contractual discrim- students employees or subjecting effect has relationships including subpart, by this prohibited ination unions, labor with agencies, referral employment with fringe administering or providing organizations 106.31(d) § see recipient”); employees benefits any ap- by participation requires “which recipient (A grant or program education any employee or student, plicant, facil- which or recipient, by wholly such operated activity not part of or participation sueh considers or permits, itates, by operated activity or program education an equivalent consor- educational participation including recipient, such student-teaching as- employment cooperative tia and educa- itself steps assure take must signments” basis discriminating on activity is not or program tion consider permit, require, facilitate, “shall gender discriminating). None program if the participation” such remedy dis- duty to generalized a suggests regulations of the argu- may school whom over parties by third crimination control. some ably exercise to take Requiring burden heavier a mueh imposes its

assment delega- or effective aid affirmative prohibiting than schools No- discriminates. entity that an functions tion of hardly said can then, responsibilities, latter these tice encompass clear notice of the former. In addition, each regulations the DOE predicated is grant on á recipient’s give choice to affirmative aid to, or to enter voluntary into association with, discriminating a entity. recipient, moreover, regulations as the envision, is free to terminate (or that aid or association provided have could so through contract). The relationships regulated by the DOE аre thus quite different from relationships. school-student The dif- ferences quate regulations confirm that the provide did not ade- duty notiee of a remedy student discrimination.

The majority also concludes that provided state tort law requisite States the notiee. sequitur It is a non suppose, however, that a State it knows is liable under a federal stat simply ute because underlying might conduct form the basis a state any tort action. In it event, is far from Georgia clear that gave law County Monroe Board of Education notice that it would be liable even under state law respond failure to reasonably to known student harass ment. g., See, e. Holbrook v. Executive Center, Conference Inc., 219 App. Ga. (hold (1996) 104, 106, 464 E.S. 2d 398, 401 ing that school districts are entitled sovereign immunity for claims based on supervision their of students unless the displayed school “wilfulness, corruption”). malice,

majority’s final observation about just notice confirms how strayed far it has from the Spending basic princi- Clause ple Congress that through must, the clear terms of the stat- give ute, States notice as to what requires. the statute majority contends that schools were on notice they because being “were told” a 1993 National School Boards Associa- publication tion peer that sexual might trigger liability. Ante, at By treating publication designed help lawyers prevent guard against liability as a reliable congressional indicium of notice, majority has litigation transformed a which, manual— like all such manuals, errs on the side of caution in describing potential liability a self-fulfilling prophecy. It —into seems amongst liabilities potential discuss even cannot schools had Congress stipulating somehow without themselves intent. specified some II Spending clear makes Gebser decision Our be recipients both requires rule elear-notiee

Clause prohibits, statute conduct kind notice general on they sought damages are money —that when least and—at given sit- occurring ain illegal conduct notice (rejecting 287-288 U.S., at Gebser, 524 e.g., See, uation. even liable schools hold would liability because vicarious was discrimination prohibited that know they not did when occurring). however, IX, gen- is harassment” peer “sexual labels majority

conduct any nor Act meaning of the within discrimination der ac- between cases individual in distinguishing guidance chil- behavior immature discrimination tionable imposes on schools thus majority The adolescents. dren conduct liability student financial crushing potentially that by Title terms clear prohibited not is that by either identified opinion, today’s after even cannot, any precision. with or courts schools recognizes law because actions their fully accountable dren—are See, judgment. mature exercise capacity they lack (discuss- 1998) (2d §4.4 ed. Farnsworth, Contracts 1 E. e.g., has he which into contract ability disaffirm ing minor’s schools then, one, no surprise entered). should It develop- social children’s most locus primary are who by children behavior inappropriate with rife are ment amici peers. their with learning interact just best: situation describe schools of our lines front limited have juveniles workplace, adults “Unlike es- upon which influences familial experiences life understanding tablish an appropriate behavior. The real discipline rough-and-tumble world is a place practice where newly vulgarities, learned erupt anger, tease and embarrass each other, share push offensive notes, flirt, and shove in grab the halls, and offend.” Brief for National School Boards Associa- (hereinafter et tion al. as Amici Curiae 10-11 Brief for Amici). School

No one contests “dizzying array much of this of imma- ture or uncontrollable inap- students,” behaviors ibid., is propriate, “objectively even offensive” times, ante, at 650, parents and that and schools have a moral and re- ethical sponsibility help students learn to interact with their peers appropriate in an It manner. is doubtless the case, moreover, that much inappropriate this behavior di- rected toward opposite members of the sex, children in the throes of struggle express adolescence emerging their sexual idеntities. question,

It is a far different however, whether it is either proper or useful to label this immature, childish behavior gender Nothing discrimination. suggests in Title IX Congress contemplated even question, this mueh an- less ‍‌‌​​‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​‌​​​​​‌​‌‍swered it in the unambiguous affirmative in terms. majority,

The problem nevertheless, has no labeling the graders conduct of fifth “sexual “gender harassment” and majority discrimination.” Indeed, sidesteps the the difficult entirely, by issue asserting first analysis without that re- spondents “support argument do not an that student-on- student harassment cannot rise to the level of discrimination’ purposes for of Title by IX,” ante, citing at' 639, and then Gebser and Franklin County v. Gwinnett Schools, Public (1992), 503 U. 60S. proposition “[w]e for the have else- where concluded that sexual harassment is a form discrim- ination purposes for Title IX proscribes and that Title IX harassment clarity satisfy sufficient to Pennhursfs no- action,” damages for a basis as serve and requirement tice 649-650. ante, majority’s Contrary the the argument persuasive cogent and amade have

ents not be should petitioner by alleged conduct of student type discrimi- gender less harassment,” much “sexual considered IX: under actionable nation court, no complaint, her filed Petitioner time “[A]t the sex- concept the recognized had Court including this employ- than other any context in harassment ual concept extended any Court had Nor context. ment emotionally misconduct sexual al- conduct type of children. socially immature How- new. is complaint her by Petitioner leged miscon- as identified properly was it years past ever, of student context within addressed was which duct create Court this asks now Petitioner discipline. labeling childish by action a cause cloth of whole out chil- stigmatize harassment,’ ‘sexual as misconduct sys- court federal have harassers, sexual as dren guessing of second burden the additional take tem administrators by taken actions disciplinary con- has Court something this misconduct, addressing 12-13 Respondents Brief do.” sistently refused omitted). (citation Amicus as Forum Women’s Independent Brief

See second- primary “at whether (questioning Curiae misconduct “sexual label proper is level” ary school power nois there because harassment” “sexual students” victim). harasser relationship between Likewise, dixit ipse than more little question settled lin cite than nothing more did themselves Franklin Gebser 64 57, S.U. Vinson, v. Bank, FSB Savings Meritor su- a “when proposition ease, VII (1986), Title a

pervisor sexually harasses a subordinate because of the sub supervisor ordinate’s sex, that ‘discriminate^]’ on the basis of sex.” See supra, Franklin, at 74; Gebser, S., U. 282-283. To proposition treat that as establishing that the student conduct at gender issue here is discrimination is to erase, in one all stroke, differences between children and peers adults, and teachers, schools and workplaces. reality, In there is no body established of federal or state law on which may courts defining draw in the student con- qualifies duct that gender Title IX discrimination. Anal- ogies to Title VII hostile environment harassment inap- are posite, because schools are workplaces not and children are not adults. The norms of the workplace adult that have defined hostile environment sexual e.g., harassment, see, Oncale v. Sundowner Services, Inc., 523 U. S. 75 Offshore (1998), are easily peer translated to relationships in schools, teenage where romantic relationships dating are part of everyday Analogies life. to Title IX teacher sexual harassment of students similarly are flawed. A teacher’s sexual overtures toward a always student are inappropri- ate; a teenager’s romantic (even overtures to a classmate persistent when unwelcome) inescapable an part of adolescence. majority admits “[wjhether that, approach, under its

gender-oriented conduct rises to the level of actionable ‘har- assment’ ‘depends ... on a constellation of surrounding cir- cumstances, expectations, and relationships,’ including, but not limited ages to, of the harasser and the victim the number of individuals (citations involved.” Ante, at 651 omitted). majority explain does not how a sup- school posed to discern from this mishmash of factors what is ac- tionable discrimination. Its balancing multifaetored test is cry a far clarity we demand Spending Clause legislation.

The difficulties schools will encounter in identifying peer sexual harassment are already evident in teachers’ manuals example, one For subject. the on guidance give to designed that suggests harassment sexual peer on manual teachers’ in- grade third through kindergarten in harassment sexual “because playground the on down” being “put boy cludes “put being girl aor girls” the with play house to wants he boys.” the than better baskets shoots she because down Along: Getting Boys Girls Education, Dept, of Minnesota Elementary the Prevention Harassment Sexual Teaching suggests manual another (1993). Yet Classroom could nice,” look ‘You another, saying to student one how voice,” of “tone the depending harassment, sexual around.” is else “who other, the at looks student Teacher’s Hurting? A Flirting Sjostrom, L.& Stein N. Schools Harassment Sexual on Student-to-Student Guide is kiss Blowing a (1994). 12), p. 14 through (Grades 6 compounded likely be will confusion This Ibid. suspect. force invested is label harassment sexual once damages suits. private up backed law, federal guidance only The name- teasing and acts “simple between guishing suit basis be a to not said children,” among school calling 652, ante, at gender,” “target differences they when even guid- reality, no in is, sexual peer actionable context “in proclaims majority The all. at ance only available damages harassment, student-on-student objectively pervasive, severe, so is behavior where educa- to access equal victims its denies offensive ma- Ibid. protect.” designed is tion con- what however, explain, purport even not does jority education.” access “equal denial an actionable stitutes being chased tires who girl a when denied access equal Is can- she When go outside? refuses recess at boys by about Worried she because during class concentrate day one sick to be pretends she 'When activities? recess majority аppears It school? stay home can she so decide. juries let is content

The majority’s reference to a “systemic effect,” ante, 653, does nothing clarify the content of its standard. majority appears to intend that requirement to do no more than exclude the possibility a single act of harassment perpetrated one by student on one other student can form the basis for an actionable claim. That is a small conces- sion indeed. The only real clue the majority gives schools about line dividing between actionable harassment that denies a victim equal access to education and mere inappropriate teasing is a profoundly one: unsettling On the facts of this case, petitioner has a stated claim because she alleged, in the majority’s words, “that the harassment had a concrete, negative effect on her daughter’s to ability receive an educa- tion.” Ante, at 654. In petitioner’s words, the effects that might have been visible to the school were that her daugh- ter’s grades “dropped” and her “ability to concentrate on her school work [was] affected.” to App. Pet. for Cert. 97a. Al- most all adolescents experience these problems at one time or another as they mature.

I—I h—l The majority’s to inability provide any workable definition of actionable peer harassment simply underscores the myr- iad in ways which an opinion that purports to be narrow is, in fact, so broad that it will support untold numbers of law- yers who will prove adept at presenting eases that will with- stand the defendant school districts’ pretrial motions. Each of the barriers to runaway litigation the majority offers us crumbles under the weight of even casual scrutiny. sounds like a relatively high threshold for liability of equal ac- —“denial cess” to and, almost in the same education — breath, makes clear that a alleging decline in grades is enough survive

Federal Rule of Civil Procedure 12(b)(6) and, it follows, to state a winning claim. The majority seems oblivious to the in trouble has some point, at child, every almost fact or her peers. his by teased being is she or he because school teased she because recess skip wants who The girl skips who child overweight from different is no boys size her about her tease children other because class gym be- out flunking risks who child or room; locker “four- taunts avoid glasses wear refuses he cause because to school to go refuses who child eyes”; chil- Most recess. “scaredy-cat” a him calls bully abil- their detract ways teasing respond dren actionable test majority’s learn. ity innocuous more all almost result, sweep will, as life. part a ubiquitous acknowledges conduct the of adjectives string The offen- objectively and “severe, pervasive, “harassment” — can that conduct class the narrow fails sive” —likewise determining for touchstone the since liability, trigger child’s the on effect the is liability is Title there whether the Indeed, Ante, at 650. education. an to get ability educational child’s on the impact reliance Court’s aof offensiveness” the “objective suggests experience at child reasonable ato reference by be judged is comment standard is that only Not aimed. were comments whom ju- schools —and gives expansive, to be quite likely to gauge attempt them requiring guidance, ries —little seven-year-old. average instance, for of, sensitivities us assures majority pre- have we that, “as instructs discipline school second-guessing refrain should courts noted, viously administrators.” school made decisions disciplinary ex- majority’s reason obvious Ante, to second- litigants courts allow reluctance pressed officials is decisions disciplinary guess al- seriousness to judge best position usually response. appropriate an devise leged courts fact, invites test, majority’s is The problem juries to second-guess school administrators every case, to judge in each instance whether the response school’s was “clearly unreasonable.” A reasonableness standard, re- gardless of the modifier, every transforms disciplinary deci- sion into jury question. Cf. Doe v. University Illinois, (CA7 138 F. 3d 1998) 653, 655 (holding college student had stated a Title IX claim peer sexual harassment even though school officials suspended had two male students for days and transferred another out class). of her biology majority relies upon is that the recipient will be only liable where the acts of stu- dent harassment are “known.” See, g., e. ante, at 644, 647. The majority’s enunciation of the standard begs the obvious question: known to whom? Yet the majority says not one word about the type of school employee who must know about the harassment before it is actionable. The majority’s silence telling. The deliberate indiffer- ence liability we recognized in Gebser predicated was on no-

tice to “an official of the recipient entity with authority to take corrective action to end the discrimination.” 524 U. S., at 290. The majority gives no indication that it believes the standard to any different in this context given its and— extensive reliance on the Gebser throughout standard opinion appears to adopt the Gebser — notice by standard im- plication. At least the courts adjudicating peer Title IX harassment claims likely are to so conclude. choosing not to adopt the standard explicit terms, the majority avoids having to confront the bizarre implica- tions of its decision. In the context of teacher harassment, the Gebser notice imposes standard some limit on school lia- bility. peer Where harassment is the discrimination, how- ever, imposes it no limitation at all. In most cases of stu- dent misbehavior, it is the teacher who has authority, at least in the first instance, punish to the student and take other measures to remedy the harassment. The anomalous result will be that, a while school district cannot be held liable for to notice without student of a harassment sexual teacher’s a can district the principal), the (or to least board school harass- remedy peer failure teacher’s a for liable held be be appears liability, then, school threshold The ment. harasser when than student ais harasser when lower absurdity The school. of the agent aniswho a teacher is by contemplated neither was that confirms result this of States. anticipated nor Congress peer on limitations majority’s The today liability Court of flood contain hope to cannot by the created elaim Title of the elements The begins. prove. allege but only to easy not majority will offen- her boy called a only that pleads who plaintiff A female re- teacher’s that teacher, a told she names, sive performance school her unreasonable, was sponse elaim. successful state appears result, aas suffered shortage no bewill There educating day with each charged are schools Our plaints. large students, a of millions those Of children. of millions careers, during their point at some will, percentage A harassment. sexual they consider something experience University Association American by the study found instance, Foundation, Educational Women been they have (81%) report 5 out “fully 4 during their sexual form some target of Survey on AAUW Hallways: The Hostile lives.” num- (1998). Schools America’s Harassment Sexual staggering. schools our against lawsuits potential ber peer against defending cost particularly districts, many school overwhelm could alone any almost allow will liability standards majority’s since In jury. a if judgment, summary get to plaintiff implied judicially caps damages no there addition, result, school aAs IX. under of action cause private approach, could suit sexual peer one liability in dis- many school funding of federal total exceed, even tricts. Petitioner, for example, seeks damages of $500,000in this case. App. to Pet. for Cert. 101a. Respondent school district received approximately $679,000 in federal aid in 1992-1993. Brief for School Amici 25, n. 20. The school district sued in Gebser only received $120,000 in federal funds year. 524 U. S., 289-290. Indeed, the entire 1992- 1993budget of that district was only $1.6million. See Tr. of Oral Arg. in No. 96-1866, p. 34.

liability confronting our schools under the implied Title IX cause of action puts schools in a far worse position than businesses; when Congress established the ex- press cause of action for money damages under Title VII, it prescribed damages caps. See Gebser, supra, (“It at 286 was not until 1991 that Congress made damages available under Title VII, and even then, Congress carefully limited the amount recoverable any individual case, calibrating the maximum recovery to the size of the employer. See 42 § U. S. C. 1981a(b)(3). Adopting petitioner’s position would

amount, then, to allowing unlimited recovery of damages under Title IX where Congress has spoken on the subject of either right or the remedy, and in the face of evidence that when Congress expressly considered both in Title VII it restricted the amount of damages available”). In addition, in contrast to Title VII, Title IX makes no provision agency investigation and conciliation of complaints (prior to the filing of a case in court) federal that could weed out frivo- lous suits or settle meritorious ones at minimal cost. liability will, in all like lihood, breed a climate of fear that encourages school admin istrators to label even the most innocuous of childish conduct sexual harassment. It would appear to be no coincidence that, not long after the DOE issued its proposed policy guid ance warning that schools could be liable for peer sexual har assment in the fall of 1996,see 61 Fed. Reg. 42728, a North Carolina school suspended a 6-year-old boy who kissed a fe male classmate on the cheek for sexual harassment, on the Los age.” any at unwelcome “[u]nwelcome theory that New later, a A week p. All. Sept. 25,1996, Times, Angeles class a kissed who grader a second suspended school York Oct. News, Buffalo skirt. her off a button ripped mate idea the got he said .grader second p. A16. 2,1996, miss awith a bear “Corduroy,” about book favorite his from <fWe only, said administrators School Ibid. ing button. We children. suspend why we toas guidelines given were Ibid. guidelines.” the follow sure majority’s the level, college theAt in the that, codes speech campus over debate the fuel may environment, educational hostile a preventing name supra, See rights. Amendment First infringe students’ schools principle, control majority’s the under Indeed, remedying conduct for responsible bewill presumably result, aAs dormitory rooms. student even occurs norms workplace apply forced be may well schools domains. private most schools Even har- sexual ato response reasoned careful most Speak- litigation. provokes nonetheless complaint assment us, remind amici school experience, voice ing with chooses official a what matter no that, “[hjistory shows almost offenders Student unhappy. be will do, someone com- student strict, too as punishment their always view punishment offender’s an always view almost plainants omitted). (footnotes Amici for School Brief lax.” too peer a faced A with beset may well decision majority’s wake quick a for demand student’s One every side. litigation with conflict will complaint her response to stu- Another process. due demand alleged harasser’s conflict will classroom harassment-free a demand dent’s placement mainstream ato claim alleged harasser’s with right to constitutional state his with IDEA under campuses, college On education. public continuing, free

even in secondary schools, a student’s claim that the school should remedy a sexually hostile environment will conflict alleged harasser’s claim that speech, his even if of protected fensive, is by the First Amendment. In each of these situations, the school faees the risk of suit, maybe even multiple regardless suits, response. its See Doe v. University Illinois, 138 F. 3d, at (Posner, C. J., dis senting from denial of rehearing banc) en (“Liability for fail ing prevent to rectify sexual harassment of one by student places another a school on a razor’s edge, since the remedial measures that it against takes alleged the harasser are as likely expose to the school to a by suit him as a failure to take those measure[s] would expose be to the school to a suit by the victim of alleged the harassment”). this appears ease to be driven image of the schоol sitting administration every idle day while male students commandeer a school’sathletic field or computer lab prevent female students from using it through physical threats. See ante, at 650-651. Title IX might provide a remedy in such a situation, however, without resort to majority’s unprecedented theory of schoolliabil- ity for student harassment. If the usually school disciplines students for threatening each other prevents them blocking others’ access to school facilities, then the school’s failure to enforce its rules boys when the target girls on a widespread day level, day, after may support an inference that the school’s decision not respond is itself based on gender. pattern That of discriminatory response could form the basis of a Title IX action.

to the majority’s assertion, see ante, at 653, I do not suggest that mere gender-based indifference to mis- treatment —even if widespread enough trigger —is Title IX liability. suggest I only that a pattern clear of discrimi- natory enforcement of school rules could raise an inference that the schoolitself is discriminating. Recognizing that the school might itself discriminate gender based on in the en- recognizing cry from farais rules itsof forcement theory expansive majority’s liability based discrimination third-party its “subjects” take fails harasser over control some it has when action.) corrective important, more Even student her. available remedies state-law have will (or his offending student against recourse have often will one, this like cases, In some law. tort state under parents) sanctions. criminal subject may perpetrator circum- may, some student notes, majority And, as law. state under against recourse stances, have Ante, at remedies state-law these Disregarding to already have schools our that incentives the and havior students, their all to education possible best the provide misbe- student to end put an to effect, in seeks, majority the Civil- Student Federal a into transforming Title by havior as Forum Women’s Independent Brief See ity Code. result). I avoid to Court the (urging Curiae Amicus discipline administer will courts federal how see fail public the whom teachers and principals than better holding will majority’s how task entrusted has oppor- educational whose students, ‍‌‌​​‌‌​‌‌​‌​‌​​​​​‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​‌​​‌​​​​​‌​‌‍majority of vast help the funds diversion by diminished be will tunities cre- Court action cause private litigation. writing in administrators federal corps of a justify will ates embroil It will harassment. student regulations qualifies what over litigation endless courts and schools reasonable constitutes what peer sexual response. In about word one says not today decision majority’s legiti- is a system federal Preserving our balance. federal It ends. other means too, is, It itself. end mate government by a made can choices essential ensures proximate

more people than apparatus the vast power. federal Defining the appropriate role of schools in teaching and supervising children who beginning to ex- plore their sexuality own learning how express it to others is one of the complex most and sensitive issues our schools face. Such decisions are best parents made by the teachers and school administrators who can counsel with them. delicacy significance immense of teach- ing children sexuality about should cause the Court to act great restraint before it displaces state and local governments.

Heedless of these considerations, the Court rushes on- finding ward, that the cause of action it necessary creates is to effect congressional design. It is not. Nothing in suggests Title IX Congress intended or contemplated the result the Court today, reaches much less it dictated unambiguous Today’s terms. decision cannot be laid at the feet of Congress; it is the responsibility of the Court. great use care shapes pri- vate causes of action guidance without clear Congress, but never more so than when the federal balance is at stake. recognized As we in Gebser, the implied definition of an cause inevitably action implicates some measure of discre- tion in the shape Court to a sensible rеmedial scheme. S.,U. at 284. Whether the Court ever should have em- barked on this endeavor under a Spending Clause statute is open question. to What should be beyond clear any doubt, however, is that the duty Court is bound to exercise that discretion with due regard for federalism unique and the role of the system. States in our The Court today disregards obligation. I can conceive of few interventions more upon intrusive the delicate and vital relations between teacher and student, between student and student, and be- tween the State and its citizens than the one the Court cre- today ates by its own hand. principles Trusted of federal- superseded ism are by a more contemporary imperative. lasting, dis- most surely the grave, and most the Perhaps own the Court’s ensures is that today’s decision of service our imparted be will soon balance the federal disregard for Federal the way for the clears Court citizens. youngest classrooms. America’s stage in center claim Government super- and instructing teachers mandates Today’s decision court federal of assistance dubious the vising their the courts federal the makes lawyers and their and plaintiffs disagree- every almost of and policy school of arbiters final right federal Enforcement students. between ment influence federal means majority by the recognized day- decisions curriculum from everything permeate will today, After interactions. and logistics to-day classroom of adolescence problems the routine find Johnny will assign- to demand right federal invoking a resolved be away. two rows desk atoment holding makes itsAs dear- Clause Spending version watered-down protections real substitute is no rule statement re- system constitutional our autonomy that local and state Court’s futility of any doubt be there If quires. limitation words holding about hedge its attempt to answer. provides ease this result eases, future school survives grader fifth of this complaint can We court. federal answer compelled be will cost suits, which will follow— suits like assured local burdens financial impose serious number, will children them, support who taxpayers districts, systems struggling our Federalism they serve. dissent. I Court. this better deserve

Case Details

Case Name: Davis Ex Rel. LaShonda D. v. Monroe County Board of Education

Court Name: Supreme Court of the United States

Date Published: May 24, 1999

Citation: 526 U.S. 629

Docket Number: 97-843

Court Abbreviation: SCOTUS