JANE DOE v. FAIRFAX COUNTY SCHOOL BOARD
No. 19-2203 (1:18-cv-00614-LO-MSN)
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 30, 2021
PUBLISHED
JANE DOE, Plaintiff - Appellant, v. FAIRFAX COUNTY SCHOOL BOARD, Defendant - Appellee.
NATIONAL WOMEN‘S LAW CENTER; CHICAGO ALLIANCE AGAINST SEXUAL EXPLOITATION; CLEARINGHOUSE ON WOMEN‘S ISSUES; DESIREE ALLIANCE; FEMINIST MAJORITY FOUNDATION; FORGE, INCORPORATED; GENDER JUSTICE; GIRLS INC.; HUMAN RIGHTS CAMPAIGN; IN OUR OWN VOICE: NATIONAL BLACK WOMEN‘S REPRODUCTIVE JUSTICE AGENDA; KWH LAW CENTER FOR SOCIAL JUSTICE AND CHANGE; LEGAL AID AT WORK; NATIONAL ASIAN PACIFIC AMERICAN WOMEN‘S FORUM; NATIONAL ASSOCIATION OF SOCIAL WORKERS, and its Virginia Chapter; NATIONAL CRITTENTON; NATIONAL NETWORK TO END DOMESTIC VIOLENCE; NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES; NATIONAL WOMEN‘S POLITICAL CAUCUS; RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE; STOP SEXUAL ASSAULT IN SCHOOLS; WOMEN‘S LAW CENTER OF MARYLAND, INCORPORATED; TRANSGENDER LAW CENTER; WOMEN LAWYERS ASSOCIATION OF LOS ANGELES; WOMEN LAWYERS ON GUARD INC.; WOMEN‘S BAR ASSOCIATION OF THE STATE OF NEW YORK; WOMEN‘S LAW PROJECT, Amici Supporting Appellant.
NATIONAL SCHOOL BOARDS ASSOCIATION; VIRGINIA SCHOOL BOARDS ASSOCIATION; MARYLAND ASSOCIATION OF BOARDS OF EDUCATION; NORTH CAROLINA SCHOOL BOARDS ASSOCIATION; SOUTH CAROLINA SCHOOL BOARD ASSOCIATION, Amici Supporting Appellee.
ORDER
The court denies the petition for rehearing en banc.
A requested poll of the court failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Quattlebaum, Judge Richardson, and Judge Rushing voted to grant rehearing en banc. Chief Judge Gregory, Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Diaz, Judge Floyd, Judge Thacker, and Judge Harris voted to deny rehearing en banc.
Entered at the direction of Judge Wynn.
For the Court
/s/ Patricia S. Connor, Clerk
WYNN, Circuit Judge, concurring in the denial of rehearing en banc:
Because this Court denies the petition for rehearing en banc, this matter is decided by the opinions produced by the three-judge panel that fully considered the issues after oral argument. Yet now, we confront two advisory opinions that purport to dissent from the denial of the petition to rehear this matter en banc. But those opinions provide next to no explanation for why our colleagues are dissenting from the denial of rehearing en banc, a proсedural question falling under
This is not a new practice, though until recently, it was uncommon in our circuit. See Cannon v. Kroger Co., 837 F.2d 660, 660 (4th Cir. 1988) (Murnaghan, J., dissenting from the denial of rehearing en banc) (noting that, as of the late 1980s, this practice was “unusual, if not extraordinary” in the Fourth Circuit). For decades in other circuits, both panel and non-panel members have issued merits opinions dissenting from the denial of rehearing en banc. E.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 228 F.3d 998, 999 (9th Cir. 2000) (Kozinski, J., dissenting from the denial of rehearing en banc in a case where he did not sit on the panel). “Since the first [dissent from a denial of rehearing en banc] in 1943, appellate judges have employed them with increasing regularity,” and the practice particularly picked up steam after the turn of the century. Jeremy D. Horowitz, Not Taking “No” for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 Geo. L.J. 59, 60 (2013). The vast majority of these dissents are written by judges other than the panel dissenter.1Id. at 74.
To be sure, the proliferation of dissents from the denial of rehearing en banc has “sparked heated debate among academics and judges alike.” Id. at 61. Some have justified this practice by noting that “there has been some indication from members of the Supreme Court that they find [such] dissents useful in deciding whether to take cases on certiorari,” and that the dissents “inform the Supreme Court of the importance of an issue and of arguments favoring one side or the other that have not theretofore appeared in print.” Marsha S. Berzon, Introduction, 41 Golden Gate U. L. Rev. 287, 293 (2011); see also Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L. Rev. 1315, 1353 (2006) (“A crisp rehearing dissent may help a losing party at the panel level write an analytically powerful petition for certiorari. That may be why the Solicitor General of the United States and private litigants quote from rehearing dissents when petitioning or fending off arguments in opposition to a petition.” (footnotes omitted)). “[C]ircuit judges elsewhere in the nation also take heed of rehearing dissents in various degrees,” and there are even “instances of congressional reports citing” them. Sur, supra, at 1354, 1356.
But these dissents also come with serious drawbacks. They have been characterized as reading, “inappropriately, like petitions for writs of certiorari,” providing one judge‘s blueprint for how the favored party ought to frame the case before the Supreme Court. Berzon, supra, at 294. Some have observed that these advisory opinions involve circuit judges engaging in “advocacy for further review [that] is inappropriate” and comes at the cost of not “upholding [the Court‘s] decision-making processes once they are completed.” Id.; see also Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., separate opinion) (arguing that it is “inappropriate” for judges
There is also a belief that such dissents may harm the public image of the judiciary. Some commentators suggest that these opinions can create an “overblown appearance of internal dissension and disarray,” id. at 294, while also “heighten[ing] the degree to which politics overtly governs judicial activity” by “imply[ing] an ideological preferenсe so strong that it compels a judge to interpose herself in a dispute in which she has not been called to participate,” Horowitz, supra, at 85–86; see also id. at 83 (noting that “[t]he Supreme Court grants review in cases with [dissents from denial of rehearing en banc] by Republican affiliates roughly 35% of the time, compared to a Democratic affiliate success rate of only 17%“).
In particular, there has been criticism that a dissent by a non-panel member that addresses the merits may signal to the public disrespect for the hard work of the panel and for the full court‘s decision not to take a case en banc, even though en banc review “is not favored” by
Whatever the value or cost of these advisory opinions, as a Court, we ought to acknowledge and be transparent about what this practice entails. In our circuit, any active judge may call for an en banc poll, “with or without a petition” filed by a party. 4th Cir. R. 35(b). That means that this practice permits non-panel members to issue advisory opinions on any point of disagreement they have with the merits of any opinion issued by any panel, simply by calling for a poll and, if it is denied, appending a dissent.
Having expressed these considerations in the interest of the transparency that is so vital to our role as judges and of providing some notice of the real purpose of these types of opinions, I acknowledge again that this practice appears to have secured a foothold in our circuit. Accordingly, I offer the following equally advisory opinion to respond to the two advisory opinions in dissent of this court‘s decision to deny rehearing en banc.2
***
Today, our Court properly denies the petition for rehearing en banc in this case. In doing so, we recognize that (1) an education free of discrimination on the basis of sex is undoubtedly an important right of all students, and (2) consistent with the statutory text and applicable case law, the panel majority opinion adequately safeguards that right. In short, the panel majority opinion conсluded that no evidence in the record supported the jury‘s verdict under the correct actual-knowledge legal standard, so the panel reversed and remanded for a new trial. Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 263 (4th Cir. 2021). The panel majority opinion also considered, and rejected, the School Board‘s argument for affirmance on an alternative ground: that no reasonable jury could find that the School Board acted with deliberate indifference. Id. at 271.
Now, based on a single paragraph in the School Board‘s petition for rehearing that advances a new argument, our first colleague in dissent from the denial of rehearing en banc advises that this Court should grant en banc review of an issue that was not presented to the district court at trial and not presented subsequently to the panel on appeal. In that single paragraph, the School Board argues that because Spending Clause legislation must be clear about potential liabilities, the School Board cannot be held liable under the deliberate-indifference prong because Titlе IX does not make clear that schools may be held liable for their response to a single instance of sexual harassment, no matter how egregious. And though that argument is at odds with the School Board‘s position at oral argument and is raised only in passing in its petition for rehearing, our first colleague in dissent believes that it meets the criteria under
This case involves a sexual assault that a jury found took place on a school bus during a band trip. Doe, 1 F.4th at 261, 263. The plaintiff, “Jane Doe,” sat next to “Jack Smith,” an older student. Doe alleges that Smith repeatedly touched her breasts and genitals and penetrated her vagina with his fingers despite her efforts to physically block him, and that he also repeatedly put her hand on his penis even after she moved it away. She testified at trial that during this incident, she felt so “confused,” “shocked,” and “scared” that she was “frozen in fear the whole time.” Id. at 261.
The jury found that Smith sexually harassed Doe and that the harassment was severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school. But, applying the incorrect legal standard, the jury found that the schoоl lacked actual knowledge of the harassment. Because of this, the jury did not reach the question of whether the school had responded to the harassment with deliberate indifference. The panel majority reversed and remanded this matter for a new trial based on the plain language of Title IX and applicable case law.
The panel majority also rejected the arguments raised by the dissent and repeated here by our second colleague in dissent from the denial of rehearing en banc. See id. at 273–74, 277 n.16. For example, the panel majority rejected the notion that its holding was “based essentially on the school‘s refusal to discipline the male student.” Niemeyer Dissenting Op. at 35; see Doe, 1 F.4th at 277 n.16. A school‘s decision about whether or not to discipline a harassing student may form part of the deliberate-indifference inquiry, but it is not, on its own, dispositive. Rather, it is a fact for the jury to weigh in the first instance.
Our first dissenting colleague advises that he would affirm on the alternative ground that Doe cannot hold the school liable for its response to whаt he terms “a single isolated incident of pre-notice sexual harassment” because Title IX “does not begin to . . . unambiguously” provide for such liability, no matter how severe the incident or how ludicrous the school‘s response. Wilkinson Dissenting Op. at 18. That is wrong. E.g., Farmer v. Kan. State Univ., 918 F.3d 1094, 1098–1104 (10th Cir. 2019) (rejecting university‘s argument that a plaintiff‘s lawsuit must be dismissed because, while she was raped several times by two male students at a fraternity event in front of other students who filmed one of the attacks, suffered severe psychological effects that caused her grades to “plummet[]” and her to lose her academic scholarship, and was not assisted by the school in bringing the men to justice, she was not raped again after notifying the school of the initial incidents).
In crafting his erroneous interpretation of the statute, our first dissenting colleague creatively argues that “[t]he concurrence suggests that liability can be retroactively imposed [against the school] for the initial assault.” Wilkinson Dissenting Op. at 21 (emphasis added). But he battles a strawman. No one “suggests,” much less contends, that a school can face “retroactive” liability for the assault itself when the assault was committed by another student and the school had no prior warning it would occur. Id. at 21-22.
Nor may a school be held liable “when it hasn‘t a clue” about the harassment. Id. at 22. The school‘s actual notice or knowledge is an element of a Title IX claim based on student-on-student sexual harassment. Doe, 1 F.4th at 263–64. For a claim like the one at hand, where liability is premised on the school‘s after-notice response to a pre-notice instance of peer-on-peer harassment, the school is liable only for its decisions after it, indeed, has “a clue.” Wilkinson Dissenting Op. at 22.
That is, as Doe‘s counsel noted at oral argument and as the panel majority opinion explained, a school may be held liable for its own behavior in response to a peer assault. See Doe, 1 F.4th at 263 (noting that Doe‘s lawsuit was premised on the assertion “that her school had acted with deliberate indifference to reports of her sexual assault“); id. at 266 (one of the necessary questions in Title IX cases involving student-on-student harassment is “whether [the] petitioner can show that the Board‘s response to reports of [the harasser‘s] misconduct was clеarly unreasonable” (emphasis omitted) (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999))); Oral Arg. at 11:35–45 (Doe‘s counsel noting that “[t]he injury in question in a Title IX suit is an educational deprivation . . . [,] not the sexual assault itself“); see also Davis, 526 U.S. at 642 (”Pennhurst does not bar a private damages action under Title IX where the funding recipient engages in intentional conduct that violates the clear terms of the statute.” (emphasis added)); Department of Justice Statement of Interest at 4, Thomas v. Bd. of Regents of the Univ. of Neb., No. 4:20-cv-03081-RFR-SMB (D. Neb. June 11, 2021) (“Post-assault claims, like the claim in Davis, focus on how a [federal funding] recipient responded after it received actual notice of a plaintiff‘s sexual harassment.“).
Thus, there is no problem of retroactivity here. Nor do schools face “strict liability” for the actions of their students. Niemeyer Dissenting Op. at 35. Rather, the key question in cases like this one is whether the school discriminated against the harassed student in how it handled the student‘s report of peer harassment or assault. So in response to our colleague‘s concerns about the source of the elements of the cause of action at issue in this case, Wilkinson Dissenting Op. at 22, that cause of action arises under Title IX itself. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Indeed, the Supreme Court has explained that an educational institution can be held liable under Title IX not only where its deliberate indifference “cause[s] [students] to undergo harassment,” but also where such indifference “make[s] them liable or vulnerable” to harassment. Davis, 526 U.S. at 645 (emphasis added) (internal quotation marks omitted). This was no idle language. Nor was it pulled from thin air. Davis explicitly grounded this interpretation in the statutory text.
The statute refers to students who are ”subjected to discrimination.”
Thus, the statute itself makes plain that a school may be held liable when it makes a student vulnerable to sexual harassment by their peers, such as by failing to respond appropriately after learning of an initial incident of sexual assault. In other words, schools do not get “one free rape.” Department of Justice Statement of Interest at 12 n.5 (quoting Spencer v. Univ. of N.M. Bd. of Regents, No. 15-CV-141-MCA-SCY, 2016 WL 10592223, at *6 (D.N.M. Jan. 11, 2016)). To hold otherwise would be “inconsistent with Title IX‘s goals, misinterpret[] Davis, and lead[] to the absurd result of requiring students to be sexually harassed or assaulted at least twice before a school can be held liable in damages for its deliberate indifference to known harassment,” an outcome that “cannot be squared with Title IX‘s text and goal.” Id.
That‘s why the Department of Justice, Department of Education, and several of our sister circuits have сorrectly concluded that a single, severe instance of peer-on-peer harassment can lead to liability for the school where the school‘s response (or lack thereof) leaves the victim vulnerable to additional harassment.3 Indeed, the School Board itself recognized at oral argument that a plaintiff need not be harassed again after an initial report in order to pursue a Title IX claim. Oral Arg. at 26:40–28:05.
Our second dissenting colleague advises us that schools getting a “free rape” would not be the consequence of his restrictive interpretation of Title IX. Niemeyer Dissenting Op. at 34. Yet, in the same breath, he bases his analysis on the view that Smith‘s assault of Doe “was a single, isolated act of student-on-student sexual harassment, about which the school had no prior notice and which did not indicate anything systemic,” noting that “similar
Importantly, the panel majority did not actually find that the school acted with deliberate indifference here. Instead, the majority opinion merely concluded that a reasonable jury could find such indifference and remanded for jurors to have the opportunity to address that question in the first instance. This amounts to what is really (or ought to be) an unremarkable holding: when a student experiences sexual assault at the hands of a peer on a school bus—an assault that was so severe, pervasive, and objectively offensive that it deprived them of equal access to the educational opportunities or benefits provided by their school—and reports it to their school, their school must not respond with indifference, so as to leave the student vulnerable to further attacks. But, of course, liability will only attach in those (hopefully) rare cases in which a school is actually deliberately indifferent—a “high bar” for any plaintiff to satisfy. Doe, 1 F.4th at 268.
Thus, contrary to the adviсe of our first colleague in dissent, there is no “[l]iability through ambush” here; nor does the liability imposed by the statute lack a “limiting principle.” Wilkinson Dissenting Op. at 22, 31. Schools know and accept that they must not discriminate on the basis of sex. That includes deliberate indifference that leaves students vulnerable to sexual harassment by their peers. Davis, 526 U.S. at 645. Indeed, “the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain nonagents.” Id. at 643. So, if a school responds to a reported sexual assault in an inappropriate manner, it can be held liable for “its own decision to remain idle in the face of known student-on-student harassment in its school“—that is, for subjecting one of the students in its care to discrimination on the basis of sex.4Id. at 641.
In sum, I respond to the two advisory opinions of my good colleagues with this equally advisory opinion stating that
WILKINSON, Circuit Judge, dissenting from the denial of rehearing en banc:
State sovereignty is not impregnable. But neither may it be lightly and casually
In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court specified that “if Congress desires to condition the States’ receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. at 207 (alterations adopted) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). Title IX cannot be read to impose liability on local school systems for a single isolated incident of pre-notice sexual harassment in schools, because that condition of Title IX does not begin to flow unambiguously from the text of the statute.
The creation of this novel implied private right of action against school districts surely presents a question of “exceptional” importance. See
A brief response to my colleague‘s reservations about dissents from the denial of rehearing en banc. The call for a poll was before the court. Judges vote on that poll, and judges are entitled to explain their reasons for that vote. Giving reasons is what we do. Reasoning adds to judicial transparency; it does not detract from it. And debate on issues of legal and public importance is to be welcomed, not disapproved.
I agree that dissents from the denial of rehearing en banc should not be routine. But this is no routine issue. It concerns the standards for school board liability for unforeseeable incidents of student sexual misconduct in schools across our circuit, indeed if not our country. And on this and similarly crucial issues, is discussion to be arbitrarily curtailed? On many occasions, the absence of a dissent from denial would leave only one side of an issue expressed. That hardly comports with the First Amendment, whose letter and spirit we are sworn to uphold. We are better off having this debate than not having it. We are better off for the able expression of my dear friend‘s view, contrary as it is to Judge Niemeyer‘s firm convictions and my own.
I.
Because Title IX was “enacted pursuant to Congress’ authority under the Spending Clause,” it is interpreted like a “contract.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999) (citing Pennhurst, 451 U.S. at 17, 24–25); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286–87 (1998); Barnes v. Gorman, 536 U.S. 181, 185–86 (2002) (Title VI). Congress must thus “speak with a clear voice” to attach conditions to Title IX funding. Davis, 526 U.S. at 640 (quoting Pennhurst, 451 U.S. at 17). The “central concern” “is with ensuring that the receiving entity of federal funds [has] notice that it will be liable for a monetary award.” Gebser, 524 U.S. at 287 (quotations omitted). Thus, under Pennhurst, “private damages actions [for Title IX] are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” Davis, 526 U.S. at 640.
Under the Title IX “contract,” a state receives federal education funds
The question before this court is whether a school board can be held liable under Title IX when it received notice of a single incident of peer-on-peer sexual harassment after the harassment occurred. The panel majority held that it could, since “a school‘s receipt of a report that can objectively be taken to allege sexual harassment is sufficient to establish actual notice or knowledge” for a school to be liable under Title IX—even if that report camе after a single instance of sexual assault. Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 263 (4th Cir. 2021). The panel majority thus imposed the prospect of liability on the
School Board due to harassment that occurred without any warning signs and which the School Board had no means of preventing.Because
Just how far the concurrence is willing to go is striking. The concurrence suggests that liability can be retroactively imposed for the initial assault based solely on the School Board‘s asserted behavior after the fact. See Concurring Op. at 8–14. And where in the world the concurrence came up with the elements of this retroactive cause of action is a mystery to me. Not from the statute certainly, whose general language does not delineate anything close to the cause of action the concurrence has created. See
For how can the state “discriminat[e]” or “exclude[]” anyone when it hasn‘t a clue? See
I can discern no limiting principle to what my friend in concurrence proposes. So loose is his net that even unexpressed conditions on state governments will have no trouble slipping through. From now on, every peer-on-peer incident of which a school board received no notice will be open to a “response suit” designed to probe its aftermath. To be sure, the concurrence tries to cabin its position with adjectives such as “egregious,” “severe,” “offensive,” and “ludicrous.” Concurring Op. at 6–8, 12–14. But to a host of eager federal litigants these fuzzy standards will pose no impediment at all. Matters that can be left to statе law or to the many avenues of community correction will now form the basis of federal litigation. This view is starkly at odds with the efforts of circuits that have tried to place some outer limit on the litigative potential of the myriad individual incidents that take place in the nation‘s school systems almost every day. It is a familiar progression that a case whose facts are undeniably odious brings in its wake a deluge of other lawsuits even the most frivolous of which will tie up state resources and undermine state and local responsibilities at an ever accelerating pace.
II.
Pennhurst stands for a general canon of statutory interpretation: ambiguous conditions in federal spending programs impacting areas integral to state sovereignty must be interpreted in favor of the state. This interpretive rule applies when two crucial criteria are met. First, it only applies when the statute is ambiguous (i.e., it does not clearly impose liability on the state). See Salinas v. United States, 522 U.S. 52, 60 (1997). A statute is unambiguous when “Congress spoke so clearly that [a court] can fairly say that the State could make an informed choice” as to whether or not to enter into the contract. Pennhurst, 451 U.S. at 25. Second, it is only invoked when fundamental principles of federalism are at stake, for Pennhurst‘s clear statement rule “is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system.” NFIB v. Sebelius, 567 U.S. 519, 577 (2012); see also Gregory v. Ashcroft, 501 U.S. 452 (1991). Both criteria are plainly present here.
A.
Ambiguity
Supreme Court precedent interpreting
That
B.
Federalism
“[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.‘” Gregory, 501 U.S. at 460–61 (alteration in original) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). This clear statement rule “is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional sсheme, powers with which Congress does not readily interfere.” Id. at 461.
Elementary and secondary education has long been recognized as integral to state sovereignty and worthy of protection in the face of federal overreach. See, e.g., United States v. Lopez, 514 U.S. 549, 564 (1995) (“[E]ducation [is an area] where States historically have been sovereign.“); Ambach v. Norwick, 441 U.S. 68, 76 (1979) (“Public education, like the police function, ‘fulfills a most fundamental obligation of government to its constituency.‘” (quoting Foley v. Connelie, 435 U.S. 291, 297 (1978))); Milliken v. Bradley, 418 U.S. 717, 741 (1974) (“No single tradition in public education is more deeply rooted than local control over the operation of schools . . . .“); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 30 (1973) (calling education one of the most important services performed by a state); Wisconsin v. Yoder, 406 U.S. 205, 213 (1972) (“Providing public schools ranks at the very apex of the function of a State.“).
As federal funding programs have proliferated, that traditional state function has come under threat. It is worth considering the full dimensions of the threat in brief detail, as it bears directly on the second prong of the Pennhurst analysis. Though federal funds only make up about 8 percent of overall education sрending, see Nat‘l Ctr. Educ. Stats., Digest of Education Statistics, tbl. 235.10, the rules governing how those funds can be spent “strongly influence local decisions about student services,” Melissa Junge & Sheara Krvaric, How Confusion over Federal Rules Can Get in the Way of Smart School Spending, Am. Enter. Inst. 1 (Dec. 2019), https://www.aei.org/wp-content/uploads/2019/11/How-Confusion-over-Federal-Rules-Can-Get-in-the-Way-of-Smart-School-Spending.pdf?x91208.
Federal funds come with a host of conditions. In 2006, for example, the Department of Education estimated that Title I—the most prominent source of federal funds—contained more than 500 discrete compliance requirements. See U.S. Dep‘t of Educ., Off. of Inspector Gen., Compliance Requirements Within Title I, Part A of the No Child Left Behind Act (Mar. 29, 2006). These requirements have a significant effect on state education policy, structuring the standards state school systems set, the assessments they use to test those standards, and the indicators they use to evaluate those assessments. See
-
Eligibility rules that define a class of participants or beneficiaries for federally funded activities; - Use-of-funds rules, including earmarks or spending caps, that limit the categories of services that grants can sustain;
- Planning requirements that oblige schools and districts to develop detailed and formulaic written plans describing program implementation;
- Financial tests districts must pass to show that federal funds “supplement, not supplant,” state and local funds;
- Reporting requirements that compel schools to gather and submit information to the Department of Education; and
- Spending time frames, which may be variable depending on the program and the year.
Junge & Krvaric, supra, at 2; see, e.g.,
Genuine consequences follow noncompliance: additional oversight, further layers of rules, directives to change practices, or even repayment. Junge & Krvaric, supra, at 3; see, e.g.,
Federal funding programs implicate
III.
A concern for federalism need not cast aspersions on
Real success, however, has not been without real costs. I do not believe that the ever-deeper subordination of state and local school systems to federal oversight is consistent either with historical practice or our constitutional design. The numbing mass of federal regulation with its bureaucratic accompaniments must at some point deaden the initiative that is the hallmark of our federal system and dim the spontaneity and spark that the great teachers have always brought into their classrooms.
At what point the balance tips is not for the inferior federal courts to determine. Pennhurst and its progeny are our constitutional guide. Pennhurst‘s clear statement rule has not been remotely satisfied here. This school district, and school systems throughout our country, stand deprived of the prior notice that is the essence not only of due process but of contractual obligation. The prospect of liability is imposed on districts wholly in the dark about the harassing incidents and in the absence of any causation of the injury, which is an element of the most basic actions in tort. I see nothing to indicate that Congress believed state and local school systems were incapable of handling the mine run of student interactions without the intrusion of federal machinery. And yet here we are. Liability through ambush is exactly what Pennhurst warned against and it is exactly what has come to pass.
NIEMEYER, Circuit Judge, dissenting from the denial of rehearing en banc:
The panel majority opinion in this case, as to which an en banc rehearing has been requested, extends the liability of a high school under
Indeed, the Court limited school liability further, requiring that the school‘s own conduct be the cause of the sexual harassment or discrimination. For instance, in Gebser, the Court held that a school can only be held liable in damages for a teacher‘s sexual harassment of a student where the school had “actual knowledge” (i.e., “notice“) of the harassment in circumstances where it had an opportunity to rectify it but instead failed to end or prevent the harassment through its deliberate indifference. 524 U.S. at 289–93. In short, the Court said, the school‘s deliberate indifference must be “the cause of the violation.” Id. at 291 (emphasis added).
Were this not sufficiently clear, the Court repeated the same requirement in its decision in Davis, this time in the context of a school‘s liability for student-on-student harassment. After reiterating that
The panel majority simply fails to recognize these constraints on school liability, creating liability based on an irrelevant argument. Judge Wynn now posits that it would be “absurd” to require students to be “sexually harassed or assaulted at least twice before a school can be held liable,” arguing that “schools do not get ‘one free rape.‘” Supra at 14–15. But nothing under the Supreme Court‘s jurisprudence suggests that that is the consequence. Rather, the Court concludes simply that school liability must be based on the school‘s own conduct “effectively caus[ing] the discrimination.” Davis, 526 U.S. at 642–43 (cleaned up).
Here, such evidence of school conduct is totally lacking, as the jury found. The facts are clean and straightforward. During a band trip to perform at a music festival, a male student at the high school engaged in sexual touching of a fellow female student while the two were sitting together under a blanket on a bus. The female student later told school officials about what had happened and told them that the touching was not consensual. The school thereafter conducted an investigation аnd, receiving somewhat conflicting accounts, concluded that a “sexual assault” had not occurred. Accordingly, it imposed no discipline on the male student, although it did provide a number of accommodations requested by the female student.
The record shows that the incident was a single, isolated act of student-on-student sexual harassment, about which the school had no prior notice and which did not indicate anything systemic. Indeed, similar conduct was never repeated. The female student, however, sued the School Board, alleging that the school acted with deliberate indifference to her report of the incident, but the jury found that because the school had no notice of the harassment, the School Board was not liable.
The panel majority reversed the verdict, based essentially on the school‘s refusal to discipline the male student. But this is not a sufficient basis to create school liability in the circumstances.
This case is especially important as a legal matter because it strikes out on a new coursе for school liability under