Lead Opinion
Steve Rager, a teacher at Southport High School in Indianapolis, Indiana, had an affair with Heather Smith, then a senior at South-port, Heather sued Rager, the Metropolitan School District Perry Township, the Board of Metropolitan School District Perry Township, and the principal and assistant principal of Southport High School for,, among other things, violating Title IX’s prohibition against sex discrimination. The defendants unsuccessfully moved for summary judgment. We granted defendants permission to file an interlocutory appeal from that denial, and now reverse.
BACKGROUND
The following undisputed facts serve as background to this appeal. Heather Smith (Smith) was born on August 23, 1973. She first met defendant Steve Rager when she was a freshman at Southport High School. Rager taught physical education at Southport and also coached the boys’ swim team. Smith was a member of the girls’ swim team and often saw Rager at Southport’s .swim meets. Rager was also a friend of Smith’s parents.
The summer following her freshman year, Rager coached Smith through a community summer swimming program. Smith’s acquaintance with Rager continued during her sophomore and junior years at Southport and through her participation in the summer swimming program. Up to the summer before her senior year, Smith regarded Rager merely as her coach. But by her third year in the summer program, Smith came to regard Rager as “a very good friend” and “someone she could go to and talk.”
The following school year (1990-91) was 17-year-old Smith’s senior year. On the first day of classes Rager asked Smith to become his student assistant during her study hall period. Students at Southport had the option of serving as assistants to teachers during study hall, and approximately ten percent of the student body participated in this program. Student assistants usually typed, filed, or ran errands for the teacher. Smith obtained permission to become Rager’s student assistant and Rager cleared it with William Pickard, an assistant principal. Beginning in March of 1991, Smith also worked for Rager outside of school at his scuba shop.
In September 1990, shortly after Smith began as Rager’s student assistant, Rager made his first sexual advance on Smith: Rager asked Smith if, he. could give her a kiss, to which she responded with surprised silence. He then said, “You thought I was meaning the real thing,” and handed her a Hershe/s Kiss. He then said, “You wanted
Over the ensuing weeks, the kissing continued. Rager also began to put his hand up Smith’s skirt. Near the end of September, Rager took Smith into his office bathroom and they had sexual intercourse. On subsequent occasions, they had sex in the bathroom and in a “hospitality room” under the bleachers. Throughout the school year, Rag-er and Smith had sex about twice a week, always (except for two occasions) on school premises. Rager did not force himself on Smith and she did not resist his advances or tell him “no,” except with respect to oral sex, although she later complied with Rager’s initiations. Smith enjoyed the sexual relationship and found that she now trusted Rager more than ever. Rager told Smith that he loved her and Smith responded in kind. Smith told no one about the sexual relationship with Rager until it was over and no one ever saw them having sex together. During the school year, Rager and Smith concealed the relationship by engaging in sex quietly in locations where they would not be observed.
As time passed, Smith began to feel confused and disturbed. She was afraid to tell Rager “no” and worried that if she told her parents they would be disappointed. She also worried that she might get in trouble if she told school officials. She decided that while she would rather not engage in sex, in order to maintain the relationship and keep Rager happy, she- would have to continue to do so. In January 1991, Smith questioned Rager for the first time about discontinuing the sex. On that and later occasions, she asked him whether he would understand and remain her friend if they stopped having sex. Rager said he would. Smith nonetheless continued to have sex with Rager. In fact, their sexual relationship continued after Smith graduated from Southport High School. Finally, on July 12,1991, Smith told Rager that she wanted to stop. He asked her for “one last time,” and she agreed. After that, they engaged in sex once more on July 18,1991. There are other sordid details that occurred during the relationship, but because they add nothing to the legal analysis at issue in this ease, and only serve to further embarrass Smith, we need not elaborate.
On July 28, 1991, Smith told a male friend (whom she later dated and then married) about her relationship with Rager. The next day, at her friend’s urging, she told her parents about her sexual relationship with Rager. She and her parents then reported it to the sheriffs office and school officials. Two days later, school officials suspended Rager and advised him that if he did not resign he would be fired and lose his teaching license. Rager resigned the following day. The school district then sent a letter to the State Board of Education recommending that Rager’s teaching license be revoked.
Almost two years later, in May 1993, Smith and her parents filed a multi-count complaint against the Metropolitan School District Perry Township (“School District”), the Board of Metropolitan School District Perry Township (“School Board”), Lloyd Bodie, the principal of Southport High, Larry Hensley-Mars-hand, the assistant principal of Southport High School, and Rager. (Other defendants were originally named, but later voluntarily dismissed.) In Count I, Smith alleged a claim of sex discrimination under Title IX against the School District, School Board, Bodie and HensleyMarshand. Count II was brought by both Smith and.her parents under 42 U.S.C. § 1983 and alleged claims against the School District, School Board, Bodie and Hensley-Marshand and Rager for various alleged constitutional violations. Count III was a state law negligence claim brought against the School District, School Board, Bodie, HensleyMarshand and Rager. Counts IV and V- were state law claims against Rager for intentional infliction of emotional distress and seduction.
The School District, School Board, Bodie, and Hensley-Marshand moved for summary judgment. (Rager did not join in the motion for summary judgment and is not a party on appeal.) The district court granted their motion on the § 1983 claim alleged in Count II, but denied summary judgment on the Title IX claim alleged in Count I and the
ANALYSIS
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____” 20 U.S.C. § 1681(a). In Cannon v. University of Chicago,
I. Appropriate Defendants Under Title IX
Although the district court did not address the issue, this case presents an initial question concerning the appropriate defendant in a Title IX action. Because Smith’s lawsuit sought recovery against the principal and assistant principal of Southport High School, in both their official and individual capacities, before we consider the propriety of the district court’s ruling on the summary judgment motion, we must determine whether a claim under Title IX can be stated against such defendants.
First we consider the language of Title IX: “[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.” By its terms, Title IX prohibits discrimination only by a “program or activity” receiving federal funding. Accordingly, in Lipsett v. University of Puerto Rico,
The majority of courts considering this issue also has concluded that only a grant recipient can violate Title IX. Burrow By and Through Burrow v. Postville Comm. Sch. Dist.,
A. Individual Capacity Liability
Because Title IX only protects against discrimination under any education program or activity receiving federal financial assistance, we agree with the First Circuit’s conclusion in Lipsett that a Title IX claim can only be brought against a grant recipient and not an individual. While the Supreme Court has not directly addressed this issue, such a premise underlies many of its decisions; “[t]he Supreme Court has repeatedly stated that the purpose of Title IX is. to prevent discrimination by grant recipients.” Rowinsky,
As an exercise of Congress’s spending power, Title IX makes funds available to a recipient in return for the recipient’s adherence to the conditions of the grant. While it is plausible that the condition imposed could encompass ending discriminatory behavior by third parties, the more probable inference is that the condition prohibits certain behavior by the grant recipients themselves.
Id. at 1012-13. “The legislative history of Title IX also supports limiting the statute to the practices of grant recipients ... [since] [throughout the legislative history, both supporters and opponents of the amendment focused exclusively on acts by the grant recipients.” Id. at 1013-14. Finally, “[t]his conclusion is reinforced by the statutory provision for administrative enforcement, which refers only to actions federal agencies may take against institutions.” Petaluma City,
B. Official Capacity
Whether the claims against Bodie and HensleyMarshand, officially, also fail is a more difficult question. It requires us to determine whether a principal or an assistant principal constitutes a grant recipient. Title IX prohibits discrimination in a “program or activity.” Section 1687 of Title IX defines “program or activity” to “mean all of the operations of — (B) a local educational agency (as defined in § 8801 of this title), system of vocational education, or other school systems,” 20 U.S.C. § 1687, and § 8801 in turn defines “a local education agency” as:
(A) a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, . township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools.
(B) The term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school.
Because § 8801 directs us to state law to determine the public authority within the school system, we look to Indiana law to determine whether a school district, school board, principal or assistant principal has administrative control over Southport High. Indiana law provides that
[i]t shall be the duty of the metropolitan school district to conduct the educational activities of all the schools in said district in harmony with state law and in general conformity with the laws of the state of Indiana with reference to public education. The control and administration of the schools of the metropolitan school district shall be vested in a metropolitan board of education whose composition, duties, manner of election, and powers are herein prescribed.
Ind.Code § 20-4-8-13. Indiana law further provides that it is “the duty of the board to act upon the recommendations of the metropolitan superintendent of schools and to make all other such decisions and perform all other such duties as fall within the general framework of the laws of the state.” Ind. Code. § 20-4-8-19. Thus, under Indiana law, the school board and school district have administrative control over educational “programs or activities.” Cf. Partee v. Metropolitan Sch. Dist. of Wash. Tp.,
On the other hand, Indiana law does not provide principals and assistant principals with administrative control over educational “programs or activities.” Indiana law defines a principal to mean “an administrator in a public school located in Indiana.” Ind. Code § 20-1-1.6-3. It gives a principal the authority to “take any action concerning his school or any school activity within his jurisdiction which is reasonably necessary to carry out or prevent interference with an educational function or school purposes.” Ind. Code § 20-8.1-5.1-5. While a principal has some authority over the activities within his school, the above statutes place institutional control over “program or activities” with the school district and school board. Indiana law also does not give assistant principals administrative control over educational programs or activities; absent is any administrative authority or control over the school itself.
II. Sexual Harassment
Smith’s Title IX claim against the School Board and School District remains. Her claim alleges discrimination on the basis of sex, premised on alleged sexual harassment by Rager. Smith does not allege sexual harassment of the quid pro quo nature; rather her claims are in the nature of a hostile environment claim.
In Franklin v. Gwinnett County Public Schools,
III. Standard for Institutional Liability
With this conclusion that Rager’s treatment of Smith constitutes sex discrimination under Title IX, the next and even more difficult question is: what standard governs institutional liability of a school district for a teacher’s sexual harassment of a student? This is an issue of first impression in this circuit.
A. Agency Principles
Smith claims that the School Board and School District, who are the grant recipients, are liable under Title IX because Rager was an employee of the recipients, and his actions are imputed to the grant recipients. Smith then proposes two alternative standards for imputing Rager’s actions to the School Board or School District, one based on Title VII’s “knew or should have known” standard, and the other based on common law agency principles, -specifically § 219 of the Restatement (Second) of Agency:
(2) A master is not subject to liability for the torts of his servant acting outside the scope of their employment, unless:
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
As just noted, Smith proposes two alternative standards: one based on Title VII and one based on common law agency principles. While “[cjourts sometimes conflate these theories,” there is a difference — § 219 of the Restatement is a pure agency theory, while Title VU’s “knew or should, have known” standard is an agency-like theory. Rosa H. v. San Elizario Indep. Sch. Dist.,
In proposing that the School Board and School District should be hable for Rager’s actions based on agency principles, Smith relies extensively on Title VII case law in arguing that “[b]ecause Title VII prohibits the identical conduct proscribed by Title IX, Title VII is the most appropriate guide to follow in defining Title IX’s substantive liability standards.” She claims that the Supreme Court adopted this approach in Franklin by stating “sexual harassment by a teacher falls within the framework of Meritor because a teacher is an employee of the grant recipient.”
Initially, we note that Franklin did not consider, much less hold, whether the “knew or should have known” standard of Title VII or agency principles in general should apply in Title IX cases; the Franklin decision did not address, the standard for institutional liability under Title IX. Although the Court drew on its Title VII decision.in Meritor to conclude that sexual harassment is intentional discrimination, it made no reference to Mentor’s (or ány other Title VII case’s) discussion on the standard for institutional liability. Nor did it have to, because in Franklin the school defendants knew of the teacher’s alleged harassment and instead of acting to stop it, dissuaded the plaintiff from pressing charges. Thus, institutional liabili-' ty rested on the institution’s actions, and the Supreme Court was not faced with creating a standard for institutional liability based on a teacher’s actions.
Case law since Franklin also has recognized- that Franklin- left unanswered the
Smith is correct that Title VII and Title IX both prohibit sex discrimination, which includes discriminatory sexual harassment. That is the significance of Franklin’s reference to Meritor. Franklin,
Moreover, while Title VII and Title IX both prohibit sexual harassment as a form of sex discrimination, the statutes differ as to who is prohibited from engaging in that conduct. Title IX prohibits recipients of funds for a “program or activity” from discriminating on the basis of sex, while Title VII prohibits employers from discriminating on the basis of sex. Title VII, however, goes even further — it defines employers to include “any agent of such a person.” 42 U.S.C, § 2000e(b). “In Title IX, in contrast. Congress defined ‘program or activity’ to mean, among other things, ‘operations of ... a school system.’ This definition does hot include agents of such an entity.” Floyd,
Smith ignores this important distinction. But this void is significant, especially in light of the development of the “knew or should have known” standard and agency principles under Title VII. In Meritor, while the Court had not yet definitively set out the “knew or should, have known” standard, it concluded that lower courts should look to agency principles to .determine whether an employer is liable for sexual harassment of an employee by another employee. The Supreme Court reasoned in Meritor that Congress wanted courts to look at agency principles because Congress explicitly defined “employer” to include any “agent”- of an employer. Meritor,
Similarly, the “knew or should have known” standard has been applied in suits under the ADA and the ADEA because those statutes define employer to include “any agent of such a person.” In Equal Employment Opportunity Commission v. AIC Security Investigations, Limited,
Title IX lacks any similar statutory basis for applying agency principles. The language of Title IX does not define a program or activity to include employees working for that program or activity. In fact, it does just the opposite — it defines “program or activity” to include only those who have administrative control of the school. A teacher has no such control. See supra, at 1020-21. Thus, no basis exists under the statutory language to hold grant recipients liable based on agency principles. See Rosa H,
In response, Smith cites numerous cases which held, stated- in dicta, or implied that an educational institution could be liable under Title IX based on agency principles.
Unquestionably, Title IX placed on [such institutions] the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminatefs]’ on the basis of sex.” Meritor Sav[ings] Bank, FSB v. Vinson,477 U.S. 57 , 64,106 S.Ct. 2399 , 2404,91 L.Ed.2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe.
Murray, 57 F.3d at 249.
Based on Franklin’s citation to Meritor, the Second Circuit in Murray concluded that a Title IX suit for sex discrimination based on sexual harassment should use the same standards as those applied in cases under Title VII, including common-law agency principles. Murray, 57 F.3d at 249. Similarly, in Lipsett,
These decisions place inordinate reliance on Meritor while ignoring its rationale.
Cases holding to the contrary, that agency principles do not apply in the Title IX context-Rosa H.,
This conclusion is further supported by Supreme Court precedent. Where Congress failed to provide a statutory basis for the application of agency principles, the Supreme Court has refused to adopt a federal law incorporating common-law agency principles. Monell v. Dept. of Soc. Serv. of City of N.Y.,
Title IX’s language also provides no basis for creating a standard of liability based on agency principles. Just as the municipality must “cause” the discrimination, and not merely a municipal employee, so too must a “program or activity” “cause” the discrimination, and not merely an employee of the program or activity. See Floyd,
B. Spending Clause Legislation
Not only does the statutory language for Title VII and Title IX differ as to who is prohibited from discriminating, but the constitutional source of the statutes also differs, and this difference further supports our conclusion that agency principles cannot be applied to a Title IX suit. Congress passed Title VII under the auspices of the Commerce Clause, while Title IX was passed pursuant to Congress’ Spending Clause power. Rosa H.,
Smith claims that “[i]ntentional sexual harassment by a teacher for which a school is responsible satisfies the proof of intentional misconduct required for violations of statute enacted under Congress’ spending power.” Initially we note that this argument begs the questions of “when the school is responsible.” Nonetheless, Smith seems to be arguing that the intent necessary for liability in Spending Clause eases is satisfied because Rager’s conduct was intentional and that intent is imputed to the School Board and School District.
While Smith contends that imputing a teacher’s intent to the school district limits institutional liability to intentional actions, this argument improperly shifts the focus from the “program or activity,” which must have acted'intentionally, to the teacher, who in abusing a child clearly acts intentionally, including his intent to keep his unwarranted conduct secret. “We do not agree that a plaintiff can evade Title IX’s intent requirement so easily.” Rosa H.,
, First, Smith argues that Title VII's “knew or should have known” theory imputes a teacher’s intent to a school. Under this standard the School District and School Board would be liable to Smith if. they either “knew” of the alleged sexual harassment, or “should have known,” but failed to respond. While a School District or School Board that “knew” and failed to respond to sex discrimination would act with the intent required to suffer a monetary judgment under the Spending Clause, see infra at 1033-34, the
The second standard Smith proposes is a pure agency theory based on § 219(2)(d) of the Restatement (Second) of Agency.' As excerpted earlier, this section provides that an employer is liable “for the torts of his servants acting outside the scope of their employment, ... [if] the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.”
Section 219(2)(d) of the Restatement is of no avail for two reasons. First, Smith’s allegations do not fall within the narrow factual circumstances covered by the “or he was aided in accomplishing the tort by the existence of the agency relation,” clause of § 219(2)(d). As “[t]he commentary to the Restatement suggests ... this exception embraces a narrower concept that holds the employer liable only if the tort was ‘aceomplished by an instrumentality, or through conduct associated with the agency status.’” Gary v. Long,
Smith’s reliance on § 219(2)(d) is misplaced for another reason — it.creates strict liability and strict liability cannot form the basis for a monetary award in a suit brought pursuant to Spending Clause legislation. If we were to adopt Smith’s broad reading of § 219(2)(d), we would in effect create strict liability for school districts because “in virtually every case in which a teacher harasses, seduces, or sexually abuses a student,” the teacher’s status as a teacher often enables
That was the Fifth Circuit’s holding in Canutillo,
Congress must be unambiguous in expressing to school districts the conditions it has attached to the receipt of federal funds. Nothing in the statute, however, places a school district on notice that it will be strictly liable for its teachers’ criminal acts. In fact, the conditions Congress imposed on Title IX recipients are limited to those anti-discrimination factors found in its sparse wording; there is no mention of liability standards, such as intent, actual knowledge, gross negligence, or lack of due diligence, let alone the imposition of liability without fault.
Id. at 398-99.
We agree with Canutillo that an education institution cannot be held strictly hable under Title IX.
[Tjhere is no sound policy reason to hold a school district financially accountable, through strict liability, for the criminal acts of its teachers.... [0]ne reason courts and state legislatures have so allocated risk to product manufacturers is because they are better able to spread liability costs among consumers by raising the price of their products. A school district should not be required to perform a comparable task, even if it could. A school district’s “products” are its students; there is no “price” to raise. Instead, public schools are funded typically by a combination of federal and state funds and property taxes levied by the local governing body. We refuse to impose the necessity of a “Title IX assessment” in order to spread the risk of million-dollar verdicts. As horrible a crime as child abuse is, we do not live in a risk-free society; it contorts “public policy” to suggest that communities should be held financially responsible in*1031 this manner (strict liability) for such criminal acts of teachers.
As the Fifth Circuit noted, “another reason behind product manufacturer strict liability is that the manufacturer is in a better position than a consumer to search for and discover defects in design or manufacture.” Canutillo,
teacher-student sexual abuse is conducted in secret making it difficult, if not impossible to detect without being told about it. Obviously, immediate and adequate notice is one of the best means of stopping abuse and removing (and convicting) the abuser. In fact, as a matter of public policy, it may well be that requiring knowledge by the school district, often acquired by being told about such abuse, as a condition to recovery of damages will result in much quicker and greater protection not only to the person being abused and providing notice, or on whose behalf it is given, but will also better protect or otherwise benefit those who may then be undergoing abuse from that, or another, teacher.
Canutillo,
Moreover, as we noted in Konradi,
Not only does the policy underlying the imposition of strict liability weigh against applying strict liability in a Title IX suit, the policy concerns involved in Spending Clause legislation compel the conclusion that agency principles have no place in Title IX litigation because “there is nothing to give notice to the recipient of federal funds that the funds carry the strings of such liability.” Rosa H.,
While Guardians involved Title VI rather than Title IX, the rationale provided in Guardians for denying monetary damages for violations of Spending Clause legislation is equally applicable here and is worth stating at length:
This is because the receipt of federal funds under typical Spending Clause legislation is a consensual matter: the State or other grantee weighs the benefits and burdens before accepting the funds and agreeing to comply with the conditions attached to their receipt. Typically, before funds are advanced, the appropriate federal official will determine whether the grantee’s plan, proposal, or program will satisfy the condition of the grant or other extension of federal funds, and the grantee will have in mind what its obligations will be. When in a later private suit brought by those for whose benefit the federal money was intended to be used is determined, contrary to the State’s position, that the conditions attached to the funds are not being complied with, it may be that the recipient would rather terminate its receipts of federal money than assume the unanticipated burdens.
Thus, the Court has more than once announced that in fashioning remedies for violations of Spending Clause statutes by recipients of federal funds, the courts must recognize that the recipient has “alternative choices of assuming the additional costs” of complying with what a court has announced is necessary to conform to federal law or not using federal funds and withdrawing from the federal program entirely. Although a court may identify the violation and enjoin its continuance or order recipients of federal funds, prospectively to perform their duties incident to the receipt of federal money, the recipient has the option of withdrawing and hence*1032 terminating the prospective force of the injunction.
Guardians,
As this excerpt demonstrates, courts “must respect the privilege of the recipient of federal funds to withdraw and terminate its receipt of federal money rather than assume the further obligations and duties that a court has declared are necessary for compliance.” Id. at 597,
The policy against awarding monetary damages for unintentional violations of Spending Clause legislation which was summarized in Guardians and relied on in Franklin also “militate[s] against the imposition- of agency principles” under Title IX. Rosa H.,
As a statute enacted under the Spending Clause, Title IX should not generate liability unless the recipient of federal funds agreed to assume the liability. In this case, forcing the school district to pay for the unauthorized acts of [a teacher] would be using a federal spending statute to create a private cause of action without regard to whether the recipient of the federal funds knew anything about the violation. When the school board accepted federal funds, it agreed not to discriminate on the basis of sex. We think it unlikely that it further agreed to suffer liability whenever its employees discriminate on the basis of sex. Adopting the customary tort paradigm utilized by the district court would compromise Franklin’s principle that “legislation enacted pursuant to the spending power is much in the nature of a contract.”
Rosa H.,
“Congress did not enact Title IX in order to burden federally funded educational institutions with openended negligence liability.” Rosa H.,
Smith responds again by citing Franklin. She contends that because the Court in Franklin held that the school district could be held liable for the teacher’s sexual abuse, and in doing so noted that liability only arises where the conduct is intentional, the Court must have believed that a teacher’s intent could be imputed to the school. However, in Franklin the defendants knew of the alleged harassment but took no action to halt it, and in fact dissuaded the plaintiff from pressing charges. The school itself acted intentionally; the intent of the teacher was not imputed to the school. In short, “[w]e can find nothing in Franklin to support the trial court’s theory that Title IX can make school districts hable for monetary damages when the district itself engages in no intentional discrimination.” Rosa H.,
Although the parties did not raise it, in deciding that agency principles should apply to Title IX cases, other courts have relied on the Department of Education’s Office of Civil Rights’ view. In its “Final Policy Guidance,” issued on March 13, 1997, the OCR registered its disagreement with the Fifth Circuit’s interpretation of Title IX in Rosa H. and Rowinsky, and stated that its long-recognized policy has been that sexual harassment (including same-sex sexual harassment) of students by school employees, other students, or third parties is covered by Title IX and that agency standards govern institutional liability. In the view of the OCR, a school is always liable for quid pro quo harassment of a student even if the school did not approve, know of, or could not have reasonably known of the harassment. For hostile environment harassment by school employees, other students, or third parties, the OCR advises that the school is liable under Title IX for negligence. In the case of school employees the school is also automatically liable if the employee acted with what the OCR terms “apparent authority,” or was aided in carrying out the sexual harassment of the student by his position. Under the Guidelines’ discussion of apparent authority, even employees such as'janitors or cafeteria workers may have apparent authority to sexually harass a student if the student believed the employee had authority over them. Whether the student’s subjective view of “apparent” authority was reasonable depends, among other things, upon the age of the student. “[I]n some cases the younger a student is, the more likely it is that he or she will consider any adult employee to be in a position of authority.” 62 Fed.Reg. 12034, 12039. Under this construct, a very young child’s subjective belief may create strict liability for school districts under Title IX for an employee’s criminal sexual molestation of that child. Id. See also Rosa H.,
While this recently elaborated Policy Guidance may represent the longstanding view of the OCR, the application of agency principles has no foundation in the language of Title IX. Yet this Policy Guidance includes a comprehensive discussion of numerous examples of situations where school systems would, be exposed to liability under various agency theories. In concluding that agency principles apply in the Title IX context, the Policy Guidance fails to examine the statutory language of Title IX, its Spending Clause source, and the significant differences between it and Title VII. Concisely put: the Guidance provides no rationale for applying agency principles and thus no basis for the greatly expanded exposure to liability for educational institutions. The Department of Education also completely failed to consider the financial impact its policy — including the adoption of strict liability — would have on school districts that accept federal funds under Title IX. Moreover, the Policy Guidance is neither a regulation, nor an interpretation of regulations promulgated by the OCR or DOE. See Policy Guidance, 62 Fed.Reg. 12034 (“the Guidance provides educational institutions with information regarding the standards that are used by the Office of Civil Rights.”). And while the OCR sought public comment before issuing the Policy Guidance, it “did not request substantive comments” on its policy views. Policy Guidance, 62 Fed. Reg. 12035. Under these circumstances we cannot defer to the OCR’s Policy Guidance. See Rowinsky,
The question remains: What is the appropriate standard for institutional liability under Title IX? The Fifth Circuit in Rosa H. concluded that the appropriate standard was an actual knowledge standard: “We hold that a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.”
We find Rosa H. persuasive and today join the Fifth Circuit in holding that under Title IX, a ■ school district is liable for teacher-student sexual harassment “only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.” Id. at 660. In this case, there is no evidence that the defendants knew of the sexual harassment and failed to respond. For whatever reason Smith (and of course Rager) made every effort to hide their ongoing relationship that lasted the entire school year and beyond. Apparently they were successful. Once Smith reported Rager’s behavior, the undisputed facts demonstrate that the school took swift and decisive action: Rager was immediately suspended and told to resign and he was reported to the state board of education. While Smith claims there is a factual question in this ease as to whether the defendants should have known of the sexual relationship between her and Rager, she does not contend that they actually knew of the relationship and failed to respond, as had been the case in Franklin. Nor do the facts support any such inference. Where a grant recipient has no knowledge of alleged discrimination, it cannot be said to have intentionally discriminated against the plaintiff.
CONCLUSION
Title 'IX' prohibits discrimination on the basis of sex by a “program or activity.” Thus, the appropriate defendant is the “program or activity” itself — -in other words, the grant recipient. Because Title IX only prohibits discrimination by the “program or activity,” it must be the “program or activity” and the institution that operates it that discriminate, not merely one of its employees. Agency principles, either pure or the agency-like principles of Title VII, cannot impute discriminatory conduct of an employee to the “program or activity” because Title IX contains no language indicating that Congress intended agency principles to apply. Rather, “a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.” Rosa H.,
ReveRSed and Remanded.
Notes
. Mennone v. Gordon,
. In Mennone, the court recognized the language of Title IX demands that a defendant exercise control over the "program or activity” to be liable under Title IX. The court then concluded that a teacher has such control.
. Even if a principal or assistant principal',' in their official capacity, maintained administrative control over the program or activity, an official capacity suit " ‘generally represent^] only another way of pleading an action against an entity of which an officer is an agent.’ ... As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Nelson v. Temple Univ.,
. Murray involved a situation of alleged sexual harassment by a patient át- the teaching institution, rather than someone employed by the educational institution. The court in Murray declined to address liability of an educational institution for hostile environments created by a third party.
. 42 U.S.C. § 2000e(b) states:
The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....
(Emphasis added.)
. As we explained in Guess v. Bethlehem Steel Corp.,
. We have also noted that the Federal Tort Claims Act creates vicarious liability. Sterling v. United States,
. At least four circuits have applied agency principles to Title IX cases. While that force of numbers may seem impressive at first glance, a careful examination shows that the cumulative reasoning in those cases is very limited and con-c'lusory. Judge Higginbotham writing for the Fifth Circuit in Rosa H. concludes otherwise with a much more thorough analysis, which underscores that in numbers there is not necessarily strength. The other circuits' opinions offer minimal legal analysis in adopting the "knew or should have known" standard employed in Title VII cases.
. Without considering the specific question of agency principles, the Tenth Circuit noted in Mabry v. State Board of Community Colleges and Occupational Education,
. They likewise read too much into Franklin's citation to Meritor. See supra at 1022-23.
.In fact, the district courts are hopelessly at odds in adopting a standard for a school district’s liability for sexual harassment by teachers against students under Title IX. See Kinman,
. Oiling a law review article, the dissent also claims that the Supreme Court in Meritor viewed Title VII’s use of the word "agent” as a term meant to avoid strict liability by limiting Title VII liability to that found under agency principles. But the choice in Meritor was not between agency principles and strict liability. It was between strict liability and the “knew or should have known” (negligence) standard the Court adopted. • Agency principles define the relationship between principals and their agents, as well as establish rules for a principal’s liability to third parties. Some of those rules create strict liability, and others create liability only for negligence. In fact, the dissent itself applies some agency principles (abuse of authority and apparent authority) which create strict liability. Thus, the choice presented is not between agency principles and strict liability, but between different agency principles, some of which result in strict liability and some of which result in liability only for negligence.
This- creates several problems. While this theory disclaims strict liability', in fact some of the agency principles it adopts create strict liability. Because Title IX is Spending Clause legislation, grant recipients receive federal funds by agreement. Tiile IX cannot create strict liability for grant recipients (see infra at 1028-33). Yet certain agency applications would do just that. For obvious good reasons Congress did not incorporate agency law in its mandate under Title IX. If Title VII did not include "agents" in its definition of employer, the Supreme Court in Mentor would not have had a statutory basis for adopting agency principles. See discussion of Monell infra at 1027-28. This obvious distinction between Title VII and Title IX cannot be rationalized into extinction in order to arrive at a conclusion Congress did not direct.
. The Fifth Circuit has since reaffirmed its holding in Rosa H. in Doe v. Lago Vista Indep. Sch. Dist.,
. The dissent claims that this interpretation of Title DC is narrow and even contrary to the Supreme Court’s directive that Title IX be accorded "a sweep as broad as its language." But without any statutory language indicating that agency principles should apply, there is nothing to sweep.
For several reasons we also cannot rely on a House Report cited by the dissent as evidence of Congress' intent that Title VII's "knew or should have known" standard should apply to Title IX cases. First, "the plain language of a statute is the most reliable indicator of congressional intent,” Baker v. Runyon,
. The dissent seems to assert that because Title IX was written in the passive voice, the only question is whether an individual was subjected to discrimination under a covered program or activity (post at 1047). If the answer is "yes” the program pays. This goes well beyond the "knew or should have known” standard of Title VII. If all that is required is that the discrimination occur under a covered program or activity, then there would be no need to adopt a standard’for institutional liability — liability would be absolute. Not only has no court adopted such an approach, but it would be impermissible: Title IX is Spending Clause legislation, and as such supports a
. Smith also argues that the School Board and School District are liable under Title IX because they failed to train the faculty and students on what constitutes “sexual harassment," and to inform teachers that teacher/student relationships are prohibited. Because a grant recipient cannot be held liable under Title IX for negligence, we need not consider these additional claims of negligence, other than to say that teachers, who have acted in loco parentis since time immemorial, are well aware that parents and guardians have entrusted them with the care of their children and that they must never, under any circumstances, use this position of trust and authority to gratify themselves sexually or for any other improper purpose. In light of this common knowledge concerning the role of teachers, the mere absence of formal procedures and policies against sexual harassment (i.e., failing to state the obvious) cannot constitute negligence.
. Smith correctly notes that “[a] teacher is not going to be acting within the course of his employment when sexually harassing a student,” and therefore does not rely on § 219(1) of the Restatement which creates vicarious liability for torts committed within the scope of employment.
. While the standard to state a claim under Title IX and the standard to recover damages are "analytically distinct,” Franklin,
Concurrence Opinion
concurring.
I concur in Judge Manion’s analysis of the lave I agree that absent a textual basis in Title IX for the application of “agency principles,” the proper legal standard for institutional liability under Title IX is the “actual knowledge” standard set forth in Rosa H. v. San Elizario Independent School Dist.,
As an initial matter, it is clear that the dissenting opinion premises its argument on factual, as opposed to legal, grounds in framing the issue in this case as whether the school district “should have known” of Rag-er’s harassment of the plaintiff, Heather Smith.
As the majority opinion points out, Rager did not force himself on Smith,
The dissent goes on to note a number of facts that fall short of establishing that the school authorities “actually knew” of the harassment. For example, it states that Rager was a “constant presence at school swim meets in which Heather participated” in an attempt to make his presence at swim meets sound sinister, even though Rager had been Smith’s swim coach for the previous three summers, assisted at the girls’ swim meets (score keeping, etc.) and served as the coach of the boys’ swim team at the same high school. . I have a hard time comprehending how it could be considered unusual for a boys’ swim team coach to attend a girls’ swim meet competition, or for the girls’ swim team coach to attend a boys’ swim meet competition. Indeed, one can only assume that school officials welcomed Rager’s active role in attending, supervising and assisting in student activities, and probably even encouraged it. The dissent also makes a point of the fact that “[i]n the presence of Heather’s [other] coaches and teammates, Rager would rub down Heather’s shoulders.” It neglects to state that this “shoulder rubbing” occurred in the presence of Smith’s parents, and her parents never found it unusual enough to warrant a question, much less a comment or an objection. ■
My dissénting colleague further claims that “[w]e do not learn from the majority opinion ... that Rager and Smith were consistently seen together on school grounds” and that “[t]he District Court referenced [this] ... fact[ ], among others, in finding that a factual question was raised on summary judgment as to what Southport officials knew or reasonably should have known.” Rovner Op. at 1045. At the outset, I fail to understand how this evidence was supposed to put the school ,on notice that Rager was sexually harassing Smith. Since when is it so out of the ordinary for students and their instructors to be seen together regularly on school grounds-, after all, is not that where pupils and teachers are required to be during school hours? While the portion of the record to which the dissent cites does not even mention the fact that Smith and Rager were “consistently seen together,” I can only assume that the dissent was referring to the deposition testimony of the plaintiff-appellant Smith, who stated that Charles Robbins, the
The dissent mentions that “some members of the swim team wondered, and discussed amongst themselves, why Rager and Smith spent so- much- time together.” Why should gossip of this type or mere speculation among teenaged students on the swim team have any bearing on the knowledge of school officials concerning the relationship? Is there one iota of evidence in the record to suggest that this gossip was ever related to the school authorities? The answer is “no.” The dissenter’s minute and added detail of the facts goes beyond the requirement of Rule 56 and, thus, does little to contribute to the establishment of the law in this most troubled area of sexual harassment. ■
Turning to the dissenting judge’s analysis of the law, I make the following observations:
The dissent states that the court’s opinion today “buck[s] the clear weight of circuit authority” by failing to adopt “agency principles” (i.e., the “knew or should have known” standard) as the standard for determining institutional liability under Title IX. The dissent would follow the lead of some other circuits and analogize Title IX (education) to Title VII (employment). However, this line of reasoning is not only deeply flawed, but, as the majority opinion makes clear, it is also unpersuasive, for it fails to account for the absence of statutory language in Title IX comparable to Title VII’s explicit use of the term “agents.”
I acknowledge that there may be room for argument over the meaning and scope of “agency principles,” but it is beyond dispute that “agency principles” apply in Title VII cases, because, as the Supreme Court explained in Meritor, the text of Title VII specifically defines “employer” to include “agents of the employer.” Meritor Savings Bank v. Vinson,
---- Congress’ decision to define “employer” to include any “agent” of an employer surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability.
Meritor,
In short, I agree with the majority opinion that the decisions relied upon by the dissent “place inordinate reliance on Meritor [and “agency principles”] while ignoring [Mentor’s] rationale,” which is rooted in the text of Title VII. Maj. Op. at p. 1025. In contrast with those authorities the dissent cites, the majority ^opinion carefully delineates the textual differences between Title VII and Title IX (i.e., the inclusion of the term “agents” in the former statute and its omission in the latter). In view of these differences, I believe it is proper that we reject the flawed logic of those circuits who have reached out and, based on a foundation of quicksand, treated these two entirely separate and distinct statutes as “analogous.” For the same reason, I likewise disagree with the dissent and think it is obvious that we are not “eschew[ing] the more widely-accepted negligence or ‘knew or should have known’ standard traditionally applied in hostile environment sexual harassment eases under Title VII.” , Rovner Op. at 1045. After .all, let us not lose sight of the fact that this is not a “sexual harassment case[ ] under Title VII.”
I am also unpersuaded by the dissent’s reliance on Title IX’s prohibition of sexual harassment “under any education program
The dissent criticizes the majority for failing to give proper deference to the Department of Education’s interpretation of institutional liability standards under Title IX, as set forth by that agency’s Office of Civil Rights (“OCR”). Initially, I do not dispute that “legislative rules” which the OCR promulgates pursuant to its administrative authority under Title IX are entitled to deference from this Court, at least “more than mere deference or weight.” Batterton v. Francis,
The courts may find [agency interpretations] persuasive and may treat them as if they were binding, but the courts have the reserve of power to substitute their own judgment on all questions of statutory interpretation. The preliminary power of interpretation is in the agency, but the final power of interpretation is in the courts.
Id. (quoting 2 K. Davis, Administrative Law Treatise § 7:11, at 55 (1979)). The OCR “final policy guideline” in this case appears to be neither an “administrative rule” nor an agency “interpretation.” In. Rowinsky v. Bryan Independent School DisL, the Fifth Circuit implied as much when it explained that “legislative regulations] ... are accorded far greater deference than are interpretive regulations____ The [OCR] Policy Memorandum deserves more deference [than interpretive regulations] because it represents a deliberate policy statement by .the agency....” Rowinsky v. Bryan Independent School Dist.,
In light of the question as to the amount of deference we are to give to the OCR pohey guidelines, I think it is only appropriate that we approach them cautiously. Indeed, while our case law “demónstratela] loyal adherence” to the principle that we defer to agency interpretations which evidence an attempt to “implement the will of Congress” through the regulatory process, “we have never interpreted this principle as a direction to approach our review of all government positions with a rubber stamp.” Pennington v. Didrickson,
Just as this court must be extremely cautious before giving statutory language retroactive effect, we must likewise refrain from giving retroactive effect to agency policy guidelines. As late as June of this year (1997), less than four months ago, the Supreme Court emphasized the “presumption against retroactivity” and the “traditional rule requiring retroactive application to be supported by a clear [statutory] statement” in Lindh v. Murphy, — U.S.-,-,
[W]e cannot apply these guidelines retroactively. ... [Recipients of Title IX funds are bound by their agreement with the federal government. The government can add strings to the Title IX funds as it disburses them. But it cannot modify past agreements with recipients by unilaterally issuing guidelines through the Department of Education. ,
In an attempt to buttress its argument, the dissent cites a brief passage from the legislative history of Title IX, which it believes is somehow an “expression of legislative intent” that the “knew or should have known” standard ought to govern the liability of educational institutions for teacher-student harassment. Of course, as the majority opinion makes plain, the clearest indicator of congressional intent is the plain language of the statute itself, and Title IX does not even refer to “agents” in the definition of “program or activity” (in contrast with Title VII’s definition of “employer,” which does include such terminology).
The mere morsel of legislative history quoted by the dissent pre-dates Meritor’s holding that “agency principles” apply in Title VII eases and thus cannot be construed as endorsing the extension of Mentor’s holding to the Title IX context (the argument implicit in the dissent). The quoted passage says nothing about sexual harassment, for the focus of congressional concern in 1972 was on the issue of discrimination in hiring/firing and advancement (i.e., glass ceiling). There was a paucity of recognition, compared with today’s acceptance, that sexual harassment is a form of sex discrimination. Far from stating that “agency principles” should be used
One of the single most important pieces of legislation which has prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act of 1964.... Title VII, however, specifically excludes educational institutions from its terms. [Title IX] would remove that exemption and bring those in education under the equal employment provision.
H.R.Rep. No. 554, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 2462, 2512. This brief passage merely reflects the considered view of Congress (some twenty-five years ago) that the equal employment provisions of Title VII ought to be extended to employees in educational settings. It provides not a scintilla of evidence of congressional intent on the issue before this Court (i.e., the standard of institutional liability under Title IX), and certainly should not be used in an attempt to circumvent the inescapable fact that the text of the statute does not refer to “agents” and thus provides no basis for the use of agency principles. So when my dissenting colleague declares that “today’s majority ignores that expression of congressional intent in construing Title IX,” she would do well to remember that “only the most extraordinary showing of contrary intentions from [legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language.” Garcia v. United States,
I wish to emphasize that I am unalterably opposed to sexual harassment, which is both intolerable and wrong. I am particularly sympathetic to those unfortunate young persons in our society who are or have been sexually abused or harassed by people senior to them in age, and supposedly wiser, who should know better than to engage in such reprehensible activity. Sadly, as Rosa H. observes, “it is increasingly evident ... that sexual harassment and molestation of students by teachers is not uncommon.”
Because Title IX, unlike Title VII, does not refer to “agents,” the majority on this panel today has wisely concluded that “agency principles” do not apply in determining whether an educational institution should be held liable for alleged acts of harassment by
a school district can be liable for teacher-student sexual harassment under Title IX only if a school official who had actual knowledge of the abuse was invested by the school board with the duty to supervise the employee and the power to take action that would end such abuse and failed to do so.
Id. at 660 (emphasis added).
It is certainly worth noting some of the pitfalls that we will avoid by adopting the reasoned approach set forth in the majority opinion. If we were to open the “Pandora’s box” of “agency principles” in the Title IX context — without a basis in the statute or Supreme Court ease law for doing so — I am certain that the myriad agency concepts set forth in the Restatement (2d) of Agency would soon be' enlisted in the cause and ever-increasing drumbeat of making educational institutions strictly liable for sexual harassment (and at what expense to taxpayers?). As noted in Rosa H., agency principles could be interpreted by the courts to create liability for school districts “in virtually every case in which a teacher harasses, seduces, or sexually abuses a student.”
. I shall refer to the plaintiff, Heather Smith, as "Smith” throughout the duration of this opinion.
. With the exception of one incident in which he allegedly suggested fellatio.
. When I refer to the language of Title VII and Title IX being "similar,” I do so in a very general sense. No one will dispute that the text of the two statutes differs with respect to the use of the term "agents” in Title VII and the absence thereof in Title IX.
. The differences between the regulations promulgated under Title VII and Title IX, .respectively, are also significant. As the Rosa H. Court noted:
Title VII regulations state forthrightly that “an employer ... is responsible for its acts and those of its agents and supervisory employees with respect'to sexual harassment....” 29 C.F.R. § 1604.11. Title IX, by contrast, does not create any administrative body to regulate private claimants' rights, and the regulations promulgated under Title IX make no mention of ■sexual harassment. See 34 C.F.R. §§ 106.1— 106.71 (Title IX regulations).
Dissenting Opinion
dissenting.
At the outset of Heather Smith’s senior year at Southport High School, gym teacher Steve Rager persuaded Heather to serve as his student assistant during her study hall period. That meant that Heather would work exclusively for Rager in his private office near the school’s gymnasium. At the time Rager made his proposal, Heather already was assigned to work as a student assistant for another Southport teacher, and Rager therefore arranged through an assistant principal for the switch to be made. Although most student assistants at South-port were given general typing and filing responsibilities, Rager had other things in mind for Heather. September had not yet passed when Rager made the first of many advances on his student assistant, asking Heather whether he could give her a kiss. When Heather met Rager’s question with stunned silence, he handed her a Hershey’s Kiss and joked “You thought I was meaning the real thing.” Having thus gained the upper hand, Rager told Heather ‘You wanted the real thing, didn’t you?” and kissed her. This episode, like those that would follow it, occurred in Rager’s office during the class period that Heather was assigned to work as his student assistant.
In the ensuing weeks, Rager became increasingly bold with Heather, putting his hand up her skirt, and telling her that he wanted to be her teacher, that he wanted to teach her everything he could about sex. Near the end of September, 'Rager took Heather into the bathroom of his private office and had intercourse with her. Prior to that encounter, the" seventeen-year-old Heather had had no sexual 'experience. Thereafter, Rager had intercourse with Heather approximately twice a week during the class period she was assigned to work as his student assistant. As the majority points out, Heather did not initially resist Rager’s advances, but she did refuse to perform oral sex, pulling away when he pushed her head downward. His confident response to her reluctance was: “eventually you will do it,” and eventually she did.
Yet as October approached, Heather became disturbed and confused about these initial sexual experiences. She felt dirty when she was required to go to her next class, but she was afraid to spurn Rager’s advances. Rager realized that Heather was upset, and at one point, he even called her at a swim team practice to make sure that everything was alright.
In January of the following year, Heather finally summoned the courage to discuss with Rager her desire to discontinue their sexual relationship. Concerned that they remain friends, Heather asked Rager whether he would understand and still be her friend if they stopped having sex. Rager assured her that he would. After that conversation, however, Rager still initiated sexual intercourse with Heather, and the relationship therefore continued into July, when Heather told Rag-er that she wanted it to stop. Although she agreed to “one last time” at Rager’s urging, the relationship ended shortly thereafter.
No one at Southport High School ever saw Rager and Heather having sex, but the two were frequently seen together on school grounds. For example, they frequently left
Finally, Rager was a constant presence at school swim meets in which Heather participated. In the presence of Heather’s coaches and teammates, Rager would rub down Heather’s shoulders. He also would work individually with Heather after practice on her swimming strokes. Some members of the swim team wondered, and discussed amongst themselves, why Rager and Smith spent so much time together.
These are the relevant facts when, construed in the light most favorable to Smith, and it should come as no surprise that the district court found these facts sufficient to raise a genuine issue on summary judgment as to whether Smith had been sexúally harassed in violation of Title IX. After first rejecting defendants’ astonishing argument that the harassment in this case was “not unwelcome,” the district court explained that:
A reasonable jury could conclude that Rager’s actions were facilitated by his authority as a teacher and coach at South-port High School. The evidence is that he hand-picked Smith for the position of student assistant, assigned her no work, and used the time they spent together for seduction and sex. His private office and bathroom were instrumental to his designs. He wrote notes to excuse Smith’s late arrival to her sixth period class. He even played up his position of authority by styling himself a “teacher” of sex.
A reasonable jury could also find that the School Defendants were negligent. The evidence is that Rager was allowed to select a female senior as his student assistant and have her spend fifth period alone with him in his private office with the door closed. No one monitored this- situation. Rager also made comments in front of other teachers and [Southport’s assistant principal] indicating an inappropriate personal interest in Smith. He hugged her in their presence. He favored her with special attention at swim practice and meets. No one reported, or even questioned, this conduct. For most of the school year, there was no sexual harassment policy in place, and no person identified for the benefit of students and employees as the Title IX coordinator. See 34 C.F.R. § 106.8. These facts could support the conclusion that the School Defendants should have known about the sexual harassment and taken prompt action to stop it.
(R. 116 at 16-17.)
A.
Before addressing the legal issue presented in this case, I must first respond to the
B.
With those matters behind me, I turn, finally, to the important legal question raised in this appeal. As I said, the district court, having construed the evidence in the light most favorable to Smith, found that a jury must decide whether Southport officials were negligent, and thus what those officials knew or reasonably should have known. The majority, however, rejects that court’s conclusion and deprives Smith of a trial because it finds no evidence that any official at South-port High School with supervisory authority over Rager had “actual knowledge” of his disturbing misconduct. (Ante, Maj. Op. at 1034.) Yet in opting for that “actual knowledge” standard, my colleagues eschew the more widely-accepted negligence or “knew or should have known” standard traditionally applied in hostile environment sexual harassment cases under Title VII. See Jansen v. Packaging Corp. of Am.,
Much ink has already been spilled addressing the issue of the appropriate standard for institutional liability under Title IX, and because the Supreme Court must ultimately resolve the division amongst the circuits, I shall attempt to be brief. The rationale for applying Title VII’s “knew or should have known” standard in a hostile environment sexual harassment ease under Title IX has been set forth in the decisions I have cited, as well as in the vacated panel decision of the Eleventh Circuit in Davis v. Monroe County Bd. of Educ.,
First, in addition to its citation of Meritor in Franklin v. Gwinnett County Pub. Sch.,
The majority clearly believes that the omission of “agent” from Title IX makes the statute narrower in scope than it would be if that term were included. But in Meritor, the Supreme Court viewed “agent” as a limiting term, explaining that “Congress’ decision to define ‘employer’ to include any ‘agent’ of an employer surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible.” Meritor Sav. Bank, FSB v. Vinson,
Even more importantly, however, the majority’s “agency” argument also misapprehends the language and structure of Title IX itself. Although a casual reader of the majority opinion may be left with the impression that Title IX outlaws diseriminafion by a program or activity receiving .federal funds (see, e.g., ante, Maj. Op. at 1023 & 1026), the statutory language actually prohibits sex discrimination “under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added). Unlike Title VII, then, which focuses on the discriminator, making it unlawful for an employer to engage in certain prohibited practices (see 42 U.S.C. § 2000e-2(a)), Title IX is drafted from the perspective of the person discriminated against. That statute names no actor, but using passive verbs, focuses on the setting in which the discrimination occurred.. In effect, the statute asks but a single question — whether an individual was subjected to discrimination under a covered program or activity.
One of the single most important pieces -of legislation which has prompted the cause of equal employment opportunity is Title VII of the Civil Rights Act of 1964.... Title VII, however, specifically excludes educational institutions from its terms. [Title IX] would remove that exemption and bring those in education under the equal employment provision.
H.R.Rep. No. 554, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 2462, 2512. Several circuits have highlighted this statement in concluding that the standard of liability employed in a hostile environment ease under Title VII must also apply in a hostile environment case under Title IX. E.g., Lipsett,
Finally, the majority emphasizes that because Title IX was enacted pursuant to Congress’ spending power, the statute applies only to intentional discrimination. And the discrimination here fails to qualify, we are told, because it involved Rager alone, without the actual knowledge or participation of school officials. (See ante, Maj. Op. at 1028.) With all due respect, however, I would have thought that argument foreclosed by Franklin itself. There, the Supreme Court explained that:
The point of not permitting monetary .damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. This notice problem does .not arise in a case such as this, in which intentional discrimination is alleged. Unquestionably, Title IX placed on the Gwinnett County Public Schools the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Meritor Sav. Bank, FSB v. Vinson,477 U.S. 57 , 64, 106 SUt. 2399, 2404,91 L.Ed.2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought to proscribe. '
For these reasons, as well as for the additional reasons given in the circuit opinions I have cited, I would employ the negligence or “knew or should have known” standard traditionally applied to hostile environment sexual harassment claims under Title VII to Heather Smith’s claim under Title IX. As the district court determined, Smith is plainly entitled to a trial under that standard, and I must therefore respectfully dissent from the majority’s decision to deprive her of that trial.
. On the issue of welcomeness, the district court concluded that a reasonable jury could find that Rager's conduct was unwelcome:
At the time of the events in question, Smith was seventeen years old, an unemancipated minor subject on school days to the supervi, sion and control of school officials. Rager, on the other hand, was a teacher at Southport High School, and had been one for as long as Smith had been alive. Prior to making any sexual advances, Rager convinced Smith to become his student assistant, with the result that she was solely at his disposal for one class period every school day. He then launched what a reasonable jury could view as a carefully planned seduction. He employed every available advantage to get what he wapted, including his greater knowledge and experience, his position of trust and authority, and his private office and bathroom. Instead of using Smith to assist him with his professional duties, he used her to satisfy his desire for quick, secret sex between classes.
(Id. at 10-11 (citation & footnote omitted).) The summary judgment record fully supports the district court’s view; Heather Smith was a child of
. Although' my concurring colleague and I certainly view the summary judgment record in this case differently (cf. Concurring Op. at 1035-36), I do not read Judge Coffey's opinion, or Judge Manion’s for that matter, as suggesting that a reasonable juiy would be unable to find from the record here that Southport officials were negligent or that they “should have known" of Rag-er’s misconduct. (See id. at 1035; Maj. Op. at 1034.) Indeed, if that were the majority's position,. it would have had no need to explain at such length why it believes that actual knowledge is required.
. Two additional circuits have more generally observed that Title VII provides "the most appropriate analogue when defining Title IX’s substantive standards.” Mabry v. State Bd. of Community Colleges and Occupational Educ.,
. See Murray,
. The differences are apparent once the two statutes are considered side by side. Title VII provides that:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....
42 U.S.C. § 2000e-2(a). Title IX, by contrast, provides that:
No 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 ....
20 U.S.C. § 1681(a).
. As the district court in this case astutely observed:
*1048 The absence of the word "agent" from Title IX is not dispositive. Sex discrimination is prohibited in all programs, activities- and operations of covered educational entities. These programs, activities and operations will be supervised by agents. If only the "authorized” behavior of such agents is actionable, then the prohibition loses a great deal of its force. Concern about the scope of liability and its impact on school systems is quite legitimate, but such concern must yield to the sweep of Title IX's language and the Supreme Court’s holding in Franklin that all appropriate relief.is available.
(R. 116 at 14.) See also Kadiki v. Virginia Commonwealth Univ.,
The-majority’s analysis of the language of Title IX also takes no account of the fact that a private cause of action like the one we consider .here is not provided for in Title IX itself, but was implied by the Supreme Court in Cannon v. University of Chicago,
. I am not persuaded that this expression of congressional intent may be ignored simply because it predates the Supreme Court's Meritor decision. • (See ante, Maj. Op. at 1027 n. 14; see also ante, Concurring Op. at 1040-41.) If Congress intended Title VII and Title IX to provide similar protection against sex discrimination in the settings to which each statute is addressed, then I do not understand how the Mentor decision would alter that .intent. Indeed, the Supreme. Court was true to Congress’ intent in Franklin when it recognized that hostile environment sexual harassment is actionable as sex discrimination under Title IX as well as under Title VII. See.
The concurring opinion, in addressing my reliance on this portion of the legislative history, notes as well that "Title IX has been on the books for more than twenty years (since 1972), [and] our Nation's legislature has not seen fit in that period of time to amend the law by inserting language that would even suggest that agency principles govern.” (Ante, Concurring Op. at 1040-41.) As I have explained, that sort of argument ignores the structure of Title IX. Yet even taking Judge Coffey’s premise to be valid, I submit that there would have been no reason for Congress to so alter the statute, because prior to February 17, 1997, when the Fifth Circuit decided Rosa H., no circuit court in the country had held that Title VII principles are inapplicable to a sex discrimination suit under Title IX. Instead,
. Despite citing the OCR’s position in Rosa H., the Fifth Circuit declined to apply what merely were “proposed guidelines” at the time of its decision:
In general, "[w]hen interpreting title IX we accord the OCR’s interpretations appreciable deference.” Rowinsky,80 F.3d at 1015 n. 20. See also Leija,101 F.3d at 406 (Dennis, J., dissenting) (urging adoption of the OCR’s proposed guidelines). But we cannot apply these guidelines retroactively. As we have explained, recipients of Title IX funds are bound by their agreement with the federal government. The government can add strings to the Title IX funds as it disburses them. But it cannot modify past agreements with recipients by unilaterally issuing guidelines through the Department of Education. As far as this case is concerned, the proposed guidelines do not apply. We make no comment on how these guidelines might affect cases in which a school district accepts Title IX funds after the guidelines’ promulgation date.
Rosa H.,
My concurring colleague further suggests that my reliance on the "final policy guidance” runs afoul of the traditional “presumption against retroactivity” that the Supreme Court recently reaffirmed in Lindh v. Murphy, - U.S. -,