Penelope C. MURRELL, on her own behalf and as mother and guardian ad litem of Penelope C. Jones; and Penelope C. Jones, Plaintiffs-Appellants, v. SCHOOL DISTRICT NO. 1, DENVER, COLORADO, also known as Denver Public Schools; School District No. 1, Board of Education, also known as Denver Public Schools Board of Education; Vivian Johnston, individually and in her capacity as Principal of George Washington High School; Kathleen Brady, individually and in her capacity as Teacher; Nelia Hicks, individually and in her capacity as Teacher; Irv Moskowitz, in his capacity as the Superintendent of Denver Public Schools, Defendants-Appellees, Now Legal Defense and Education Fund; ACLU Women‘s Rights Project; Connecticut Women‘s Education and Legal Defense Fund; Equal Rights Advocates; National Women‘s Law Center; Northwest Women‘s Law Center; Texas Civil Rights Project; Titlе IX Advocacy Project; Women‘s Legal Defense Fund; National Association of School Psychologists; National Association of School Workers; Lambda Legal Defense and Education Fund, Inc.; United States of America, Amici Curiae.
No. 97-1055.
United States Court of Appeals, Tenth Circuit.
Aug. 4, 1999.
To the extent that the newer [broader] rules force litigants to take advantage of improved procedural opportunities for more comprehеnsive and effective initial litigation they represent a desirable process of continually adapting basic policies to new circumstances. There is a risk, however, that courts may lose sight of the irrational tactical realities that often counsel freedom for litigants to choose whether it is better to forego the possibility of a single comprehensive suit. Contemporary concern for judicial efficiency may augment this risk. Balancing these opportunities and risks will prove one of the major challenges to res judicata doctrine as it evolves in the years to come. The choices to be made will be complicated by the desirability of achieving general rules.
Id. The majority‘s position is clearly on one side of this legitimate divide and I am on the other. As I havе lost this round, I might ask for reconsideration—a proper thing to do, in my opinion, but only when you lose.
Yolanda S. Wu (Martha F. Davis and Julie Goldscheid with her on the brief) of NOW Legal Defense and Education Fund, New York, New York, for Amici Curiae NOW Legal Defense and Education Fund, ACLU Women‘s Rights Project, Connecticut Women‘s Education and Legal Defense Fund, Equal Rights Advocates, National Women‘s Law Center, Northwest Women‘s Law Center, Texas Civil Rights Project, Title IX Advocacy Project, Women‘s Legal Defense Fund on behalf of Plaintiffs-Appellants.
Patrick B. Mooney (Martin Semple with him on the brief) of Semple & Mooney, P.C., Denver, Colorado, for Defendants-Appellees.
Isabelle Katz Pinzler, Acting Assistant Attorney General; and Dennis J. Dimsey and Seth M. Galanter, Attorneys, Department of Justice, Washington, DC, filеd a brief for Amicus Curiae United States of America.
Beatrice Dohrn, Legal Director; and David S. Buckel and Ruth E. Harlow of Lambda Legal Defense and Education Fund, Inc., New York, New York, filed a brief for Amici Curiae National Association of School Psychologists, National Association of Social Workers, and Lambda Legal Defense and Education Fund, Inc.
Before SEYMOUR, Chief Judge, ANDERSON and LUCERO, Circuit Judges.
SEYMOUR, Chief Judge.
Penelope C. Murrell brought this action on her own behalf and as guardian ad litem for her daughter, Penelope C. Jones, against School District Number 1, Denver, Colorado (the School District). In her complaint, Ms. Murrell asserted that the School District violated Title IX of the Education Amendments of 1972,
I.
In reviewing the grant of a motion to dismiss, we are bound to construe as true the facts presented in the plaintiff‘s complaint. See Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir.1996). Thus construed, the complaint presents the following series of events.
Penelope Jones began attending classes at GWHS on or about October 25, 1993. Ms. Jones was born with spastic cerebral palsy, which severely impairs her ability to use and control the right side of her body. She is also deaf in her left ear. Testing conducted by the School District established that Ms. Jones was also developmentally disabled. According to an Educational Assessment performed in December 1993, Ms. Jones functioned intellectually and developmentally at the level of a first-grader.
Upon enrolling Ms. Jones at GWHS, Ms. Murrell informed the principal of GWHS, Vivian Johnston, and special education teachers Kathleen Brady and Nelia Hicks, that Ms. Jones had been sexually assaulted at her previous school. Ms. Murrell expressed her fear that her daughter‘s mental and physical disabilities would place her at continued risk. Ms. Murrell asserts that the principal and the teachers assured her Ms. Jones would be properly supervised. The complaint also alleges that these officials had a duty to supervise and ensure the safety of all GWHS students.
GWHS assigned Ms. Jones to the special education program taught by teachers Brady and Hicks. There Ms. Jones encountered another special education student, “John Doe,” who was known to have significant disciplinary and behavioral problems which included engaging in sexually inappropriate conduct. According to the allegations in the complaint, the School District was well aware of Mr. Doe‘s history. Indeed, Mr. Doe‘s mother had specifically cautioned the teachers and the principal of the need to keep a watchful eye on him and had informed them that Doe was receiving professional treatment for his problems. Despite Mr. Doe‘s known behavioral problems, the School District appointed him to a position as a “janitor‘s assistant,” through which he gained access to cеrtain unsupervised areas of the school.
In early November 1993, the teachers became aware that Mr. Doe was engaging in aggressive, sexually inappropriate conduct toward Ms. Jones. At about that same time, Ms. Murrell informed the teachers that Mr. Doe had been making harassing phone calls to Ms. Jones at her home. According to the complaint, it was also during this time that Mr. Doe sexually assaulted Ms. Jones on multiple occasions. Sometime in November, Mr. Doe took Ms. Jones to a secluded area and sexually assaulted her. Ms. Jones, who was menstruating at the time, bled and vomited during the course of the assault and battery. Upon discovering Mr. Doe and Ms. Jones, a janitor told them to clean up the mess, returned them to class, and advised the teachers where he had found them. Although the teachers allegedly knew that Mr. Doe had sexually assaulted Ms. Jones on this occasion, they did not so inform Ms. Murrell. Ms. Murrell learned that Ms. Jones had gotten menstrual blood on her clothing and that the teachers had tied
Because of these incidents and because she had begun to engage in self-destructive and suicidal behavior, Ms. Jones left school and entered a psychiatric hospital. Only then did Ms. Murrell learn about the sexual assaults and the batteries of her daughter by Mr. Doe. Although Ms. Murrell immediately contacted the teachers to advise them of what she had learned from Ms. Jones, the teachers denied the incidents could have occurred, told Ms. Murrell to send Ms. Jones back to school, and refused to discuss the matter further. Ms. Murrell asked that the information be provided to Principal Johnston in order that shе might investigate Ms. Jones’ allegations. Ms. Murrell then telephoned the principal herself and left a message on her answering machine. The principal neither returned Ms. Murrell‘s call nor undertook any investigation of the alleged incidents.
Following her release from the hospital, Ms. Jones attempted to return to school on December 6, 1993, but stayed for only one day because she was once again battered by Mr. Doe and ridiculed by other students for Mr. Doe‘s earlier sexual attacks on her. After making several unsuccessful attempts to contact the principal, Ms. Murrell eventually learned from the teachers and Mr. Doe‘s mother that a meeting had been scheduled to discuss Mr. Doe‘s sexual conduct with Ms. Jones. That meeting took place on December 10 at GWHS and was attended by the prinсipal, Mr. Doe‘s mother, the teachers, Ms. Murrell and her husband, and Ms. Jones. The teachers and the principal were hostile towards Ms. Jones and Ms. Murrell. Indeed, the principal allegedly suggested that the sexual contact between Mr. Doe and Ms. Jones might have been consensual, although she knew Ms. Jones was legally incapable of consenting and that Mr. Doe had admitted assaulting Ms. Jones after she had resisted his advances. The principal declined to investigate the incident, and when Ms. Murrell suggested that both students be suspended pending an investigation, the principal responded by suspending only Ms. Jones for “[b]ehavior which is detrimental to the welfare, safety, or morals of other pupils or school personnel.” Aplt. App. at 14.
In the meantime, the School District neither notified appropriate law enforcement officials of the alleged sexual assaults by Mr. Doe nor disciplined him in any way. Not only did Mr. Doe continue to attend GWHS after the December 1993 meeting, he retained his job as a janitor‘s assistant with the same access to all parts of the school he had previously enjoyed.
II.
We review de novo the grant of a motion to dismiss for failure to state a claim under
A.
We begin by addressing the Schoоl District‘s argument that dismissal is required because educational institutions are not liable under Title IX for peer sexual harassment. In dismissing the action, the district court concluded Ms. Murrell failed to establish institutional liability based on the Fifth Circuit‘s opinion in Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1011, n. 11, 1012 (5th Cir.1996), which held that agency principles do not apply under Title IX and a school district is not liable for the conduct of a harassing student because the student is not an agent of the school, id.
After oral argument on appeal, we abated this case pending the Supreme Court‘s review of Davis v. Monroe County Bd. of Educ., 120 F.3d 1390 (11th Cir.1997), cert. granted, 524 U.S. 980 (1998). The Court has now handed down an opinion in that case addressing “whether a recipient of federal education funding may be liable for damages under Title IX under any circumstances for discrimination in the form of student-on-student sexual harassment.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 1669 (1999). Specifically, the Court considered “whеther a district‘s failure to respond to [such] harassment can support a private suit for money damages.” Id. The Court decided that it could, holding:
funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
Id. at 1675. Because Davis directly addresses many of the issues here, we analyze Ms. Murrell‘s claim in light of this recent precedent, having received supplemental briefing from the parties on the effect of Davis.
In Davis, the Supreme Court considered whether the Monroe County Board of Education could be held liable for its failure to respond to LaShondа D.‘s numerous complaints that a fellow student, G. F., was sexually harassing her. LaShonda was a fifth grader at a Monroe County elementary school. She alleged that from December 1992 to May 1993, G.F. engaged in a course of sexually harassing conduct during which he, inter alia, attempted to touch her breasts and genital area, made vulgar comments to her, and rubbed his body against hers in a sexually suggestive manner. Id. at 1667. LaShonda reported some of these incidents to classroom teachers, and reported others to her mother, Aurelia Davis, who then contacted the teachers. Id. At least one teacher assured Ms. Davis that the principal had been informed of the harassing incidents. Id. In addition, LaShonda and other female students unsuccessfully requested a meeting with the principal to discuss G. F.‘s behavior. In mid-May, Ms. Davis met with the principal, who was unsympathetic to the problem. Id. At no time did the school discipline G.F. and only after more than three months of reported harassment did it permit Lashonda to change her classroom seat so she was no longer seated next to G.F. Id. G. F.‘s conduct interfered with LaShonda‘s school attendance and performance, which was evidenced by a drop in her grades over the relevant time period. Ms. Davis sued the school district for monetary and injunctive relief under Title IX.
Title IX provides in relevant part, “[n]o person ... 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.” Id. at 1669 (quoting
Davis affirmed that “a recipient of federal funds may be liаble in damages under Title IX only for its own misconduct.” Id. at 1670; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (rejecting the application of vicarious liability and agency principles as bases for holding school districts liable under Title IX). Applying this principle, the Court found Ms. Davis had a viable claim because she “attempt[ed] to hold the Board liable for its own decision to remain idle in the face of known student-on student harassment in its schools.” Davis, 526 U.S. at 1670 (emphasis added). She did not assert the school district was liable for G. F.‘s (or any other third party‘s) inappropriate conduct. Title IX permits liability in such a case.
In order to confine Title IX liability to those cases in which the school district itself acted improperly, Davis imposes liability only if the district remains deliberately indifferent to acts of harassment of which it has actual knowledge. Id. at 1672. That standard makes a school district liable only where it has made a conscious decision to permit sex discrimination in its programs, and precludes liability where the school district could not have remedied the harassment because it had no knowledge thereof or had no authority to respond to the harassment. After all, “[d]eliberate indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action.” Id. This rationale and the plain language of Title IX “limit a recipient‘s damage liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.” Id.
Davis also recognizes the difference between children and adults, and between school and workplaces. The Court emphasized that
[d]amages are not available for simple acts of teasing and name-calling among school children ... even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are only available where the behavior is so severe, pervasive, and objectively offensive that it denies victims the equal access to education that Title IX is designed to protect.
In sum, a plaintiff must allege four factors to state a claim of school district liability under Title IX. She must allege that the district (1) had actual knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe, рervasive and objectively offensive that it (4) deprived the victim of access to the educational benefits or opportunities provided by the school. Id. at 1671-72. This limited rule imposes liability only on those school districts that choose to ignore Title IX‘s mandate for equal educational opportunities.
We now consider Ms. Murrell‘s claim in light of Davis and other relevant authority. The School District‘s argument and the district court‘s order dismissing the case both rest on the premise that an educational institution cannot be held liable under Title IX for conduct not attributable to the institution itself. The School District frames the question before us as whether Title IX imposes “an affirmative duty on educational institutions receiving federal financial assistance to prevent stu-
The Court in Davis did not expressly set out the standard for determining when a school board has sufficient notice that harassment is taking place to be liable for failing to respond appropriately. Nonetheless, in contrasting a school district‘s liability for its own failure to act with liability improperly based on agency princiрles, the Court held that liability properly attaches when the misconduct “takes place while the students are involved in school activities or otherwise under the supervision of school employees.” Id. at 1672-73. In so doing, the Court cited with approval Doe v. University of Ill., 138 F.3d 653, 661 (7th Cir.1998). Doe in turn held that a school district is liable if “a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the [harasser] and the power to take action that would end such abuse and failed to do so.” Id. at 668 (internal quotation omitted); see also Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th Cir.1997). Accordingly, we believe the first two prongs of the Davis analysis require that a school official who possessed the requisite control over the situation had actual knowledge of, and was deliberately indifferent to, the alleged harassment.
We decline simply to name job titles that would or would not adequately satisfy this requirement. “[S]chool districts contain a number of layers below the school board: superintendents, principals, vice-principals, and teachers and coaches, not to mention specialized counselors such as Title IX coordinators. Different school districts may assign different duties to these positions or even reject the traditional hierarchical structure altogether.” Rosa H., 106 F.3d at 660. Because officials’ roles vary among school districts, deciding who exercises substantial control for the purposes of Title IX liability is necessarily a fact-based inquiry. Davis makes clear, however, that a school official who has the authority to halt known abuse, perhaps by measures such as transferring the harassing student to a different class, suspending him, curtailing his privileges, or providing additional supervision, would meet this definition.
Turning to Ms. Murrell‘s complaint, we conclude she has sufficiently alleged actual knowledge and deliberate indifference. Ms. Murrell alleged that she telephoned Principal Johnston to discuss Mr. Doe‘s harassing conduct, and therefore that the principal had actual knowledge of the assaults at least as of the time Ms. Jones was in the hospital. Nevertheless, Principal Johnston failed to take any action to remedy the situation when Ms. Jones returned to school. Indeed Principal Johnston allegedly refused to investigate the matter or discipline Mr. Doe, and instead suspended Ms. Jones and suggested that the sexual conduct was consensual.
We find little room for doubt that the highest-ranking administrator at GWHS exercised substantial control of Mr. Doe and the GWHS school environment during school hours, and so her knowledge may be charged to the School District. See Davis, 119 S.Ct. 1661 (finding а basis for Title IX liability when principal allegedly had actual knowledge of sexual harassment and failed to respond to ameliorate the situation).4 The Denver Public Schools’ sexual harassment policy, which prohibits
Ms. Murrell also asserts that the teachers had a duty to supervise and ensure the safety of all GWHS students including Ms. Jones. They allegedly had actual knowledge of Mr. Doe‘s conduct toward Ms. Jones from almost the moment it began to occur, and not only refused to remedy the harassment but actively participated in concealing it, including telling Ms. Jones not to inform her mother of Mr. Doe‘s actions and refusing to infоrm her mother themselves when presented with myriad opportunities to do so. It is possible that these teachers would also meet the definition of “appropriate persons” for the purposes of Title IX liability if they exercised control over the harasser and the context in which the harassment occurred. Where the victim is complaining about a fellow student‘s action “during school hours and on school grounds,” id. at 1672, teachers may well possess the requisite control necessary to take corrective action to end the discrimination. See Gebser, 118 S.Ct. at 2004 n. 8 (Stevens, J., dissenting) (“If petitioner had been the victim of sexually harassing conduct by other students during those classes, surely the teacher would have had ample authority to take corrective measures.“). At this stage in the proceedings we must accept as true the allegation that Ms. Jones‘s teachers were invested with the authority to halt Mr. Doe‘s known sexually assaultive behavior. If they were, their alleged response quite plainly amounts to deliberate indifference.
We next consider whether the harassment inflicted upon Ms. Jones was sufficiently “severe, pervasive, and objectively offensive” to satisfy Davis, 119 S.Ct. at 1676. Ms. Murrell has alleged that over the course of about a month, Mr. Doe repeatedly took Ms. Jones to a secluded area and battered, undressed, and sexually assaulted her. Although Mr. Doe‘s behavior did not last as long as the harassment in Davis, we easily conclude that Ms. Murrell has alleged wrongdoing “sufficiently severe, pervasive and objectively offensive” to state a claim.
Our final consideration under Davis is whether the school officials’ deliberate indifferencе deprived Ms. Jones of access to the educational opportunities or benefits provided by GWHS. Again, we have little difficulty concluding that it did under the allegations set forth here. After the assaults, Ms. Jones became a danger to herself and had to leave school to be hospitalized. Moreover, Principal Johnston suspended Ms. Jones when Ms. Murrell
Ms. Murrell‘s complaint satisfies the four factors necessary to impose Title IX liability on school districts for student-on-student harassment and she has therefore stated a claim on which relief can be granted. We reverse the district court‘s order dismissing Ms. Murrell‘s Title IX claim.
B.
We next address the district court‘s dismissal of Ms. Murrell‘s claim under
1. School district liability for sexual harassment under the Equal Protection Clause
The Fourteenth Amendment to the United States Constitution provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” Denials of equal protection by a municipal entity or any other person acting under color of state law are actionable under
In order to еstablish municipal, or in this case School District, liability for sexual harassment under the Fourteenth Amendment, a plaintiff must demonstrate that a state employee‘s discriminatory actions are representative of an official policy or custom of the municipal institution, or are taken by an official with final policy making authority. See Randle v. City of Aurora, 69 F.3d 441, 446-50 (10th Cir.1995). To subject a governmental entity to liability, “a municipal policy must be a ‘policy statement, ordinance, regulation, or decision officially adopted and promulgated by [a municipality‘s] officers.‘” See Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir.1996) (quoting Starrett, 876 F.2d at 818); see also Monell v. New York City Dep‘t of Social Servs., 436 U.S. 658 (1978). Absent such an official policy, a municipality may also be held liable if the discriminatory practice is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Lankford, 73 F.3d at 286 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168 (1970)).
We agree with the School District that even the most liberal construction of Ms. Murrell‘s complaint fails to reveal any allegation that the School District engaged in an official policy of deliberate indifference to sexual harassment. Acts that do not rise to the level of official policy may none-
In addition, plaintiffs’ complaint gives no indication that either the principal or the teachers possessed the “final policy-making authority” the Supreme Court requires for purposes of establishing municipal liability under section 1983 on the basis of a decision specific to a particular situation. See Randle, 69 F.3d at 447-50; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988). Ms. Murrell‘s section 1983 claim against the School District was therefore properly dismissed.6
2. Individual liability of the principal and teachers for sexual harassment under the Equal Protection Clause
By way of contrast to the institution itself, a governmental official or supervisory employee may be held liable under section 1983 upon a showing of deliberate indifference to known sexual harassment. Although conduct by a state actor is required in order to support a claim under section 1983 and the primary conduct in this case is that of a student, we have found the possibility of state action where “a supervisor or employer participates in or consciously acquiesces in sexual harassment by an outside third party or by co-workers.” Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994) (quoting Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir.1992) (emphasis added)). “[L]iability under § 1983 must be predicated upon a ‘deliberate’ deprivation of constitutional rights by the defendant” and not upon mere negligence. Woodward, 977 F.2d at 1399. In order to state a claim of “deliberate” discriminatory conduct, Ms. Murrell must state facts sufficient to allege “defendants actually knew of and acquiesced in” Mr. Doe‘s behavior. Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995). This is precisely Ms. Murrell‘s claim—that the principal and the teachers knew about Mr. Doe‘s harassment of Ms. Jones and acquiesced in that conduct by refusing to reasonably respond to it.7 Ms.
In an action under section 1983, individual defendаnts are entitled to qualified immunity unless it is demonstrated that their alleged conduct violated clearly established constitutional rights of which a reasonable person in their positions would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In order for the law to be clearly established, “there must be a Supreme Court or other Tenth Circuit decision on point, or the clearly established weight of authority from other circuits must have found the law to be as the plaintiff maintains.” Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). In this circuit, it has been clearly established since our holding in 1989 in Starrett, 876 F.2d at 814, that “sexual harassment ... can violate the Fourteenth Amendment right to equal protection of the laws.” See Woodward, 977 F.2d at 1398. Moreover, it has been clearly established since at least 1992 that a person who exercises the state‘s supervisory authority may be held liable for consciously acquiescing in sexually harassing cоnduct by a non-state actor over whom the state actor has authority. Id. at 1401. The events forming the basis for Ms. Murrell‘s claims in this case occurred in late 1993.
The School District asserts the individual defendants are entitled to qualified immunity because there has previously been no case holding an individual school employee liable for sexual harassment under the Fourteenth Amendment. This argument carries the concept of “clearly established” to an extreme we decline to adopt. We have never said that there must be a case presenting the exact fact situation at hand in order to give parties notice of what constitutes actionable conduct. Rather, we require parties to make reasonable applications of the prevailing law to their own circumstancеs:
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in light of pre-existing law the unlawfulness must be apparent.
Id. at 1398 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40 (1987)) (emphasis added). Applying this test, the fact that we have said other supervisory municipal employees may be held liable under the Fourteenth Amendment for deliberate indifference to the discriminatory conduct of third parties was sufficient to make apparent the unlawfulness of such deliberate indifference by a school employee exercising supervisory authority over students.8
III.
We REVERSE the district court‘s order dismissing Ms. Murrell‘s Title IX claim, as well as its order dismissing Ms. Murrell‘s section 1983 equal protection claim as to the individual defendants, and REMAND for further proceedings consistent with this opinion. We AFFIRM the district court‘s order dismissing the section 1983 equal protection claim against the School District.
STEPHEN H. ANDERSON, Circuit Judge, concurring in part and concurring in the judgment:
The majority wisely “decline[s] ... to name job titles that would or would not adequately satisfy” Davis’ requirement that the school have control over the harassing student for a finding of Title IX liability. Maj. op. at 1247. Davis did not answer this question precisely, leaving liability limited in general terms to cases involving “an official decision by the [Title IX] recipient not to remedy the violation.” Davis, 119 S.Ct. at 1671 (quoting Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 290 (1998)); see also Davis, 119 S.Ct. at 1688 (Kennedy, J., dissenting) (“[T]he majority says not one word about the type of school employee who must know about the harassment before it is actionable.“).
I write separately to point out that given the facts of this case, some of the language in the majority‘s Title IX analysis is unnecessarily broad. After concluding that Principal Johnston‘s alleged deliberate indifference and actual knowledge are enough to trigger liability under Title IX, the majority proceeds to state that “teachers may well possess the requisite control necessary to take corrective action to end ... discrimination.” Maj. op. at 1248. So stating, the majority implies that a single teacher‘s inaction may in some circumstances be enough to trigger Title IX liability. That question is not before us in this case, at least not at this juncture. There is simply no need for such employee-by-employee analysis, given that the facts alleged clearly amount to an “official decision” by Principal Johnston, the highest-ranking school official, “not to remedy the violation.” Davis, 526 U.S. at 1671. A single teacher‘s sexual misconduct was not enough to subject a recipient to liability in Gebser, and I believe it is still an open question after Davis whether a single teacher‘s indifference is ever sufficient for recipient liability, notwithstanding the Davis dissent‘s characterization of the opinion, see Davis, 119 S.Ct. at 1689 (Kennedy, J., dissenting) (postulating that a district might “be held liable for a teacher‘s failure to remedy peer harassment.“).
Moreover, with respect to Ms. Murrell‘s Equal Protection Clause claim against the principal and the teachers individually, I emphasize that the “deliberate indifference” standard provides a high hurdle for plaintiffs. Such a high hurdle is necessary, given the myriad contacts which occur daily in this country between teachers and students and between students and their peers. The allegations in this case are so egregious, however, that I agree that Ms. Murrell has stated a claim against the principal and the teachers under the Equal Protection Clause. Whether less egregious facts will suffice in future cases remains to be seen.