UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50791
_____________________
CANUTILLO INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant,
versus
MARTHA LEIJA and JERRY LEIJA
as next friends of ROSEMARIE LEIJA, a minor,
Plaintiffs-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
November 16, 1996
Before GARWOOD, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This interlocutory appeal by the Canutillo Independent School
District turns on whether, under Title IX of the Education
Amendments of 1972, 20 U.S.C. §§ 1681 et seq., a school district is
strictly liable for its teacher’s sexual abuse of a student; and,
if not, whether another teacher’s being told about the abuse is
sufficient notice to the school district for possible liability
under some other standard. We REVERSE the denial of the school
district’s motion for judgment as a matter of law on the Title IX
claim and REMAND.
I.
The school district is located in Canutillo, Texas, and
receives federal financial assistance. At the Canutillo Elementary
School, Rosemarie Leija was assigned in 1989 to the second-grade
homeroom class of Pam Mendoza and the physical education/health
class of Tony Perales.
Perales’ classes were a part of the daily curriculum. Once a
week, he taught health, which consisted primarily of showing movies
to his students in a darkened classroom. Throughout the 1989-90
school year, Perales sexually molested Leija during these showings.
One of Leija’s classmates testified that, during this same time
period, she was also molested in a similar manner by Perales.
In early 1990, Leija and the other student told Mendoza about
some of Perales’ actions. Mendoza spoke with each of the girls
individually and told them to avoid Perales. Mendoza talked to
Perales about the accusations, but she did not advise anyone else,
such as the superintendent or principal. Later that spring, Leija
told her mother that Perales had been touching her. Leija’s mother
discussed the matter with Mendoza at one of the regularly scheduled
parent-teacher conferences, and Mendoza told her that she would
look into the matter. Leija’s mother did not discuss this with
anyone other than her husband. According to Leija, Mendoza
confronted her after the conference and threatened her with
“trouble” if she was lying about her accusation.
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Afterwards, Leija did not speak with anyone about the abuse
until she began counseling sessions in 1993. Her parents, as next
friends, then filed this action against the school district (CISD)
and Perales under Title IX and under 18 U.S.C. § 1983. Summary
judgment was granted CISD on the § 1983 claim.
During the trial of the Title IX claim, at the close both of
Leija’s case and of all the evidence, CISD moved for judgment as a
matter of law on the basis that, inter alia, Leija had not produced
evidence of discriminatory intent on its part. Both motions were
denied, and the special interrogatories given the jury premised
CISD’s liability instead on a “negligent agent” theory:
Did Pam Mendoza, as an agent of [CISD], know
or, in the exercise of reasonable care, should
she have known, of the sexual harassment or
abuse by Tony Perales against Rosemarie Leija?
Did Pam Mendoza take the steps a reasonable
person would have taken under the same or
similar circumstances to halt the sexual
harassment or abuse by Tony Perales against
Rosemarie Leija?
The jury returned a verdict for Leija, awarding $1.4 million in
compensatory damages.
Post-verdict, CISD again sought judgment as a matter of law
and moved, in the alternative, for remittitur. Among other things,
it again maintained that Leija had not shown intentional
discrimination on its part. In denying the motion, the district
court changed course and held, in a most comprehensive opinion,
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that its instructions on liability were unnecessary because CISD
was instead strictly liable for Perales’ actions. 887 F. Supp.
947, 953 (W.D. Tex. 1995). However, because the court was
concerned that Title IX strict liability might expose school
districts to “potential insolvency”, it held also that damages
should be limited to expenses for medical and mental health
treatment and for special education. Id. at 956. And, because the
damages special interrogatory was not so limited, the court treated
CISD’s remittitur motion as one for a new trial on damages and
granted it. Id. at 957. The court later certified its order under
28 U.S.C. § 1292(b) for immediate appeal, and this court granted
CISD leave to do so.
II.
Although CISD presents several points, this interlocutory
appeal turns on whether the liability standard under Title IX for
teacher-student sexual abuse is strict liability; and, if it is
not, whether the notice to Mendoza, a teacher, is sufficient to
hold the school district liable. In so deciding, we review de novo
the denial of CISD’s motion for judgment as a matter of law, using
the same standards as those applied by the district court. E.g.,
Conkling v. Turner, 18 F.3d 1285, 1300-01 (5th Cir. 1994). Such
judgment is appropriate if, after viewing the record in the light
most favorable to the nonmovant, there is no “legally sufficient
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evidentiary basis” for a reasonable jury to have found for the
prevailing party. Id. (quoting FED. R. CIV. P. 50(a)).
Title IX provides in relevant part: “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). There is an implied right of
action under Title IX in favor of victims of discrimination on the
basis of sex, Cannon v. University of Chicago, 441 U.S. 677, 709
(1979), and monetary damages may be awarded for its intentional
violation, Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 74-
76 (1992).
For purposes of this appeal, we assume that discrimination “on
the basis of sex” includes sexual abuse of a student by a teacher.
See id. at 75. CISD, unlike the amici, does not contend otherwise.
See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 477 (5th Cir.)
(en banc) (Jones, J., dissenting) (citing Franklin for proposition
that school accepting federal funds “render[s] itself potentially
liable” to Title IX claims for teacher-student sexual harassment),
cert. denied sub nom. Lankford v. Doe, 115 S. Ct. 70 (1994). But
see Franklin, 503 U.S. at 62-63 (limiting question presented to
“whether the implied right of action under Title IX ... supports a
claim for monetary damages”); Rowinsky v. Bryan Indep. Sch. Dist.,
80 F.3d 1006, 1011 n.11 (5th Cir. 1996) (“[A]ny language in
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Franklin regarding teacher-student sexual harassment is pure
dictum.”), cert. denied, 65 U.S.L.W. 3033 (U.S. Oct. 7, 1996) (No.
96-4).
A.
The district court was the first to adopt strict liability as
the standard for school district Title IX liability for teacher-
student sexual abuse. Three other standards have been utilized.
We summarize them briefly before addressing, and rejecting, strict
liability.
1.
The three approaches generally followed are those used for
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et
seq.; for Title VII of that Act, 42 U.S.C. §§ 2000 et seq.; and
pursuant to Restatement (Second) of Agency § 219.
a.
CISD urges that Leija must prove that the school district
itself engaged in intentional sex-based discrimination. Its basis
is the statement in Cannon that Title IX was “patterned” after
Title VI. Cannon, 441 U.S. at 694. As the Court noted, “the two
statutes use identical language to describe the benefited class”,
id. at 694-95. Title VI provides: “No person in the United States
shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
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Federal financial assistance.” 42 U.S.C. § 2000d. Both statutes
also utilize a similar “administrative mechanism” to terminate
financial assistance to recipients “engaged in prohibited
discrimination”. Cannon, 441 U.S. at 695-96.
Moreover, our court recently described Title VI as the “model”
for Title IX. Rowinsky, 80 F.3d at 1012 n.14. And, in Chance v.
Rice University, 984 F.2d 151, 153 (5th Cir.), reh’g denied, 989
F.2d 179 (5th Cir. 1993), a district court’s application of Title
VI standards to a Title IX claim was not held erroneous. Chance,
however, involved a claim of discrimination in the promotion and
compensation of professors at a university, not teacher-student
sexual abuse; furthermore, an imputed liability standard was not at
issue. 984 F.2d at 152.
To receive compensatory damages, a Title VI plaintiff must
prove discriminatory intent. Guardians Ass’n v. Civil Serv. Comm’n
of the City of New York, 463 U.S. 582, 584 (1983); id. at 608 n.1
(Powell, J., concurring); see Franklin, 503 U.S. at 70.
Consequently, CISD asserts that it cannot be liable absent proof
that it actually participated in Perales’ discriminatory conduct.
See, e.g., Seamons v. Snow, 864 F. Supp. 1111, 1117 (D. Utah 1994),
aff’d in part and rev’d in part, 84 F.3d 1226 (10th Cir. 1996);
R.L.R. v. Prague Pub. Sch. Dist. I-103, 838 F. Supp. 1526, 1534
(W.D. Okla. 1993).
b.
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Leija also disclaims the district court’s strict
liability/limited damages approach. Leija asserts that Title VII
liability principles should govern instead. The basis for this
approach is the Franklin Court’s reliance on Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57 (1986), a Title VII case, in stating
that
[u]nquestionably, Title IX placed on the
Gwinnett County 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 Savings Bank, FSB v. Vinson,
477 U.S. 57, 64 (1986). We believe the same
rule should apply when a teacher sexually
harasses and abuses a student.
Franklin, 503 U.S. at 75.
Under Title VII, the standard for an employer’s liability for
an employee’s conduct depends on the type of sexual harassment at
issue. Courts have held an employer strictly liable for “quid pro
quo” harassment (receipt of a benefit conditioned on submission to
sexual conduct). See Meritor, 477 U.S. at 70-71; Henson v. City of
Dundee, 682 F.2d 897, 910 (11th Cir. 1982). However, for “hostile
environment” harassment (sexual conduct which, inter alia, creates
an intimidating working environment), an employer is liable only if
it knew, or should have known, of that conduct and did not take
appropriate remedial action. Nichols v. Frank, 42 F.3d 503, 508
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(9th Cir. 1994); Hall v. Gus Constr. Co., 842 F.2d 1010, 1016 (8th
Cir. 1988).
The district court instructed the jury only on a hostile
environment theory; it refused to instruct on a quid pro quo
theory. We agree that the abuse in issue is the former, not
latter, type. Under these principles for hostile environment
claims, CISD could be liable if, inter alia, it had actual or
constructive notice of Perales’ actions. See Kinman v. Omaha Pub.
Sch. Dist., 94 F.3d 463, 469 (8th Cir. 1996); Preston v.
Commonwealth of Va. ex rel. New River Community College, 31 F.3d
203, 206-07 (4th Cir. 1994).
c.
As a variation on respondeat superior, the Restatement
(Second) of Agency § 219 provides a third possible liability
standard: a master is not liable for his servant’s torts committed
outside the scope of employment unless “the master was negligent or
reckless”. Restatement (Second) of Agency § 219(2)(b) (1957).
Under this standard, and because the sexual abuse was not within
the scope of Perales’ employment as a teacher, CISD would be liable
for his actions only if it failed to use reasonable care in
preventing, or failing to remedy, a problem that it knew, or should
have known, existed. Hirschfeld v. New Mexico Corrections Dep’t,
916 F.2d 572, 577 (10th Cir. 1990) (interpreting § 219 in Title VII
case); see Rosa H. v. San Elizario Indep. Sch. Dist., 887 F. Supp.
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140, 142-43 (W.D. Tex. 1995); Hastings v. Hancock, 842 F. Supp.
1315, 1319 (D. Kan. 1993).
2.
Rejecting the foregoing approaches, the district court adopted
strict liability as the Title IX liability standard for teacher-
student sexual abuse. 887 F. Supp. at 954. As noted, it did not do
so until after the jury rendered its extremely large compensatory
damages verdict. Id. at 948. No court had previously adopted this
approach in imputing liability to a school district for a Title IX
hostile environment claim. Moreover, subsequent to the district
court rendering its opinion, only one other court has followed
suit. Bolon v. Rolla Pub. Sch., 917 F. Supp. 1423, 1427-28 (E.D.
Mo. 1996). That court also certified its order for interlocutory
appeal. Id. at 1433-34.
In the case at hand, the district court opined that a student
would have difficulty meeting any of the usual liability standards
because most sexual abuse “occurs or at least is attempted under
cover of secrecy”; and that, “unless the acts of the employees of
the district are fully and strictly imputed to the district, Title
IX becomes potentially inoperative.” 887 F. Supp. at 953. Because
of this proof problem, and because “the risk of harm is better
placed on a school district than on a young student”, the court
held CISD strictly liable for Perales’ sexual abuse of Leija. Id.
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at 955. For the following reasons, we reach the opposite
conclusion.
Our court explained recently that “precedent strongly
suggests” that Congress enacted Title IX pursuant to its Spending
Clause power, U.S. CONST. art. I, § 8, cl. 1, and not § 5 of the
Fourteenth Amendment. Rowinsky, 80 F.3d at 1012 n.14. Although
the Franklin Court had earlier refused to decide this issue,
Franklin, 503 U.S. at 75 n.8, our court gave cogent reasons for
interpreting Title IX in the same way Title VI is interpreted, as
Spending Clause legislation, including the identical language of
the two statutes, the fact that Title IX was modeled after Title
VI, and the Supreme Court’s traditional hesitance to “attribut[e]
Congressional intent to act under its authority to enforce the
Fourteenth Amendment.” Rowinsky, 80 F.3d at 1012 n.14 (citing
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)).
In Pennhurst, 451 U.S. at 17, the Court described the typical
spending power statute as a contract: “[I]n return for federal
funds, the States agree to comply with federally imposed
conditions”. But, Congress must be clear and “unambiguous[ ]”
about any conditions or obligations it is imposing on the recipient
of such funds. Id. As the Pennhurst Court explained, “By
insisting that Congress speak with a clear voice, we enable the
States to exercise their choice knowingly, cognizant of the
consequences of their participation.” Id. Thus, in Pennhurst, a
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general statement of legislative findings characterized as a “bill
of rights” in the statute was insufficient to impose enforceable
obligations on participants in a Spending Clause program. Id. at
18-27.
Assuming, arguendo, that Title IX is a Spending Clause
statute, 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. 20 U.S.C. § 1681.
It would be difficult to conclude that Title IX, which
contains no whisper of strict liability, creates this enforceable
obligation, whereas the provision at issue in Pennhurst, which was
part of the text of the statute, did not. Pennhurst, 451 U.S. at
13-14, 18-27. And, if strict liability were the standard, it
cannot be that a school district that chooses to accept federal
monies can be said to have made a “knowing[ ]” choice, “cognizant
of the consequences of [its] participation”, when the statute
governing the receipt of those funds is completely silent about a
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financially devastating consequence of that participation. Simply
put, strict liability is not part of the Title IX contract.
In addition, there is no sound policy reason to hold a school
district financially accountable, through strict liability, for the
criminal acts of its teachers. As noted, in recasting an argument
frequently made in support of imposing strict liability on product
manufacturers, see, e.g., Greenman v. Yuba Power Products, Inc.,
377 P.2d 897, 901 (Cal. 1963); Escola v. Coca-Cola Bottling Co.,
150 P.2d 436, 440-41 (Cal. 1944) (Traynor, J., concurring), the
district court explained that “the risk of harm is better placed on
a school district than on a young student.” 887 F. Supp. at 955.
But, along this same line, one 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. E.g., Escola,
150 P. 2d at 441 (Traynor, J., concurring). 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
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suggest that communities should be held financially responsible in
this manner (strict liability) for such criminal acts of teachers.
Continuing with this product manufacturer analogy, 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. See, e.g., Escola,
150 P.2d at 440-41 (Traynor, J., concurring). But, there is no
product for a school district to design, test or inspect. Again,
its “products” are its students; they are not the offending item.
And, just as is a product manufacturer, a school district is
limited in what it can prevent through careful screening and
monitoring of its employees, both before and after hiring them.
Human beings are inherently unpredictable, making it impossible for
a school district to discover potential human “defects” the way,
for example, that a manufacturer, for its products, can design
against defects, or inspect for them on an assembly line. In
addition, the Constitution and state and federal law limit the
extent to which a school district can examine, inquire about, or
investigate its employees and their backgrounds and
characteristics.
Likewise, as the district court noted, 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
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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. This additional
benefit applies equally to those who might be otherwise subject to
abuse in the future from that teacher, as well as from others.
The district court suggests that strict liability will
“heighten[ ] the vigilance of the district and cause[ ] employees
at all levels of the system to be alert to the problem.” 887 F.
Supp. at 955. It is difficult to believe, following lengthy and
nationally publicized child abuse trials, the otherwise heightened
awareness of child abuse, and the increased filings of Title IX
actions for student abuse, that any school district or teacher is
not already extremely alert to the problem of teacher-student
sexual abuse. But in any event, as explained, such vigilance,
alertness, and awareness are insufficient to shield a school
district from potential financial ruin under the district court’s
strict liability approach, even with the limited damages it couples
to that standard. Strict liability converts the school district
from being the educator of children into their insurer as well.
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And, if it is their insurer, it is most arguable that its role as
educator -- needed now more than ever -- will suffer, and suffer
most greatly.
It is true that the Supreme Court has found an implied
private cause of action in Title IX, even though the statute is
silent. Cannon, 441 U.S. at 709. And, it is also true that the
Court discerned an intent on the part of Congress to provide all
appropriate remedies for a Title IX violation, although the statute
makes no mention of them. Franklin, 503 U.S. at 71-75. But,
strict liability is a step too far; we will not take it.
B.
As discussed infra, and based on the facts in this case
(especially because the only notice was to another teacher), it is
not necessary now to move beyond our rejection of strict liability
and adopt a liability standard for Title IX cases of the type at
hand. Leija’s Title IX claim fails under each of the three types
commonly applied.
1.
Of course, if the appropriate standard were analogous to Title
VI, even notice, absent direct involvement by the school district,
would not impute liability to the district. See R.L.R., 838 F.
Supp. at 1534. It is undisputed that there was no such involvement
by CISD. Therefore, the Title IX claim would fail under this
standard. We turn to how it would fare under a liability standard
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akin to Title VII or § 219 of the Restatement (Second) of Agency.
(Needless to say, the brevity of this Title VI analogy, especially
as compared to the length of the discussion that follows, should
not be understood to mean that, for purposes of this opinion, we
view it as having less validity than those other two standards.)
2.
Under the standard for Title VII or § 219, a school district
would be liable if it knew, or should have known, of the teacher’s
conduct and failed to take remedial action. See DeAngelis v. El
Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.) (Title
VII), cert. denied, 116 S. Ct. 473 (1995); Hirschfeld, 916 F.2d at
577 (§ 219). Restated, under either standard, actual or
constructive notice, inter alia, would constitute a sufficient
basis for Title IX liability. Both CISD and Leija agree on this
point.
a.
Therefore, under either standard, the question then becomes:
To whom must such notice be given? CISD asserts that, at the
least, a management-level employee must have notice of the
teacher’s actions. Leija counters that, as long as the student
reports the actions to someone “appropriate” to receive the
complaint, the notice element has been satisfied.
In the Title VII context, our court has explained that an
employer has actual notice of harassment when an employee complains
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to “higher management”. Waltman v. International Paper Co., 875
F.2d 468, 478 (5th Cir. 1989); see also Nash v. Electrospace Sys.,
Inc., 9 F.3d 401, 404 (5th Cir. 1993) (discussing failure of
plaintiff to complain to “company hierarchy”). A Title VII
plaintiff can show constructive notice by “showing the
pervasiveness of the harassment, which gives rise to the inference
of knowledge or constructive knowledge”. Waltman, 875 F.2d at 478
(quoting Henson, 682 F.2d at 905). (As discussed infra, there is
no evidence that, at the time of the assaults on Leija, Perales’
conduct was so pervasive that a reasonable juror could infer that
CISD had knowledge of the situation.)
Other circuits have adopted a similar definition for Title VII
actual notice. Nichols, 42 F.3d at 508 (“The proper analysis for
employer liability in hostile environment cases is what management-
level employees knew or should have known....”); Hall, 842 F.2d at
1015-16 (explaining that employer had actual notice because foreman
was told of harassment); Katz v. Dole, 709 F.2d 251, 255-56 (4th
Cir. 1983) (describing personnel that put employer on notice of
harassment as “supervisory”); Henson, 682 F.2d at 905 (“The
employee can demonstrate that the employer knew of the harassment
by showing that she complained to higher management....”).
Likewise, under § 219, courts require that a plaintiff notify
management-level employees before an employer can be said to have
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actual knowledge. See Hirschfeld, 916 F.2d at 577 (citing EEOC v.
Hacienda Hotel, 881 F.2d 1504, 1516 (9th Cir. 1989)).
There is no reason to define actual notice differently in the
Title IX context. In fact, the one Title VII case cited by Leija
to support her “appropriate employee” contention described the
personnel that the plaintiff notified as “supervisory”. Llewellyn
v. Celanese Corp., 693 F. Supp. 369, 380 (W.D.N.C. 1988).
Moreover, it makes little sense, on the one hand, to make liability
contingent, inter alia, on whether the employer (school district)
takes “prompt remedial action”, see DeAngelis, 51 F.3d at 593, yet,
on the other hand, define “employer” so broadly as to include
personnel who have no authority to take such action. Therefore,
before the school district can be held liable under Title IX for a
teacher’s hostile environment sexual abuse, someone in a
management-level position must be advised about (put on notice of)
that conduct, and that person must fail to take remedial action.
For purposes of this appeal, we need not decide, and thus
leave for another day, the question of whether the appropriate (or
lowest level) management-level person to be notified is a Title IX
coordinator, vice-principal, principal, superintendent, or school
board member. But cf. Rowinsky, 80 F.3d at 1021 (Dennis, J.,
dissenting) (student-student sexual harassment is actionable under
Title IX if “board had knowledge of the harassment and failed to
take appropriate corrective action”) (emphasis added). Obviously,
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that question is strongly linked to the facts and circumstances,
including applicable state law, of each case. It is clear,
however, that, to even begin to qualify as “management-level”, a
person must have some authority over employees, including, perhaps,
the power to hire, fire, or discipline. This condition stems from
case law and the language of Title VII itself.
Title VII defines an “employer” to include all “agent[s]”, but
not all “employees”, of the employer. 42 U.S.C. § 2000e(b). The
Supreme Court focused on this distinction in Meritor Savings Bank,
477 U.S. at 72: “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.” Our court is well
aware of this distinction. See Moham v. Steego Corp., 3 F.3d 873,
876 (5th Cir. 1993), cert. denied, 510 U.S. 1197 (1994).
Courts have interpreted the term “agent” to mean someone who
“serves in a supervisory position and exercises significant control
over ... hiring, firing, or conditions of employment”. Sauers v.
Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (quoting
Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989) vacated
in part, 900 F.2d 27 (4th Cir. 1990); see also Pierce v.
Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994). In
fact, the Fourth Circuit has explained, “[The agent] need not have
ultimate authority to hire or fire to qualify as an employer, as
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long as he or she has significant input into such personnel
decisions”. Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.
1989).
This definition of “employer” (including agents) is synonymous
with the understanding our court had of “employer” in DeAngelis v.
El Paso Municipal Police Officers Ass’n, when it listed as one of
the elements of a Title VII plaintiff’s prima facie case for
hostile environment that “the employer knew or should have known of
the harassment and failed to take prompt remedial action”.
DeAngelis, 51 F.3d at 593. Accordingly, the term “higher-
management personnel” includes only those individuals with some
degree of job-related authority over other employees.
Thus, in Nash v. Electrospace System, Inc., our court
explained that an employer did not know, and could not have known,
of the harassment “until [the plaintiff] complained to those with
authority to address the problem”. Nash, 9 F.3d at 404 (emphasis
added). And, in Hall v. Gus Construction Co., the Eighth Circuit
found that a construction company had actual notice of a hostile
environment when a foreman had witnessed and received complaints
about the sexually harassing conduct. Hall, 842 F.2d at 1016.
In sum, if Title VII or § 219 principles are applicable for
Title IX liability, the school district does not have actual
knowledge of hostile environment sexual harassment until someone
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with authority to take remedial action is notified. Again, it may
well be that that someone must be a member of the school board.
b.
In any event, it is clear that Mendoza, the teacher put on
notice, did not have the requisite authority. At the elementary
school, she served only in the capacity of a classroom teacher.
Mendoza did not serve on the school board or as a superintendent,
assistant superintendent, principal, or assistant-principal. And,
the CISD student handbook designated the assistant superintendent,
not Mendoza, as the CISD Title IX coordinator (and the person to
receive student complaints). Mendoza simply had no job-related
authority over Perales or, for that matter, any other teacher. As
a final indicator, we note that, when asked at trial whether she
was an appropriate person to receive a student’s complaint of
sexual abuse and harassment, Mendoza invoked her Fifth Amendment
rights.
c.
Accordingly, we apply these assumptions and conclusions to
this record to determine whether the school district had the
requisite actual or constructive notice. As stated, we hold that
it did not.
Leija was not in Perales’ gym/health class after the 1989-90
school year; and, in early 1991, during Leija’s third grade year,
she and her family left Canutillo. Perales, however, continued to
- 22 -
sexually abuse his students. In October 1990, a parent complained
to the assistant-principal at the elementary school that Perales
had sexually molested her daughter. The allegation was
investigated, and Perales was warned about his interaction with the
students. In February 1991, four more girls complained of sexual
abuse, this time to the principal, who promptly reported the
incidents to the CISD superintendent. CISD immediately suspended
Perales. Law enforcement officials investigated the matter, and
Perales was subsequently indicted and convicted of sexual abuse of
a child, whereupon CISD terminated him.
Therefore, concerning the time frame during which the sexual
abuse of Leija occurred, the record reflects the following:
neither Leija nor her mother told anyone at the school besides
Mendoza (a teacher) what Perales was doing; Mendoza was not at
management-level -- she did not have any authority over Perales or
other authority, including to take the requisite remedial action,
so that the notice to her did not constitute notice to CISD; no
member of the school board, the superintendent, the assistant
superintendent, the principal, the assistant-principal or any other
management-level personnel were notified of Perales’ actions; and,
there was no evidence that his conduct was then so pervasive that
a reasonable juror could conclude that CISD “should have known” of
the abuse. On these facts, CISD had neither actual nor
constructive notice of Perales’ sexual abuse of Leija.
Consequently, for the liability standards akin to Title VII or §
- 23 -
219, as with that discussed earlier for Title VI, the Title IX
claim was insufficient as a matter of law.
III.
For the foregoing reasons, the Title IX claim fails.
(Accordingly, we do not address the damages issues.) Therefore, we
REVERSE the denial of CISD’s motion for judgment as a matter of law
on that claim, and REMAND for entry of judgment in favor of the
school district.
REVERSED and REMANDED
DENNIS, Circuit Judge, dissenting:
I respectfully dissent.
First, I disagree with the majority’s failure to consider and
follow the substantial jurisprudential and regulatory
developments that have taken place under Title IX since this court
visited this fast changing legal area in Rowinsky v. Bryan ISD, 80
F.3d 1006 (5th Cir. 1996). I am persuaded by the new developments
that the substantive standards that have evolved under Title VII
should be applied in actions for monetary damages under Title IX
based on either the sexual harassment of a student by a school
employee or the sexual harassment of a student by his or her peers.
Second, I could have agreed with the majority’s result had
this case presented only the issue of whether a complaint of
hostile environment sexual harassment was made to management-level
school employees. However, the certified order appealed from
fairly includes other issues that should be addressed by this
court, viz., (1) whether the complaints by the second grader and
her mother to her primary or home room teacher about her sexual
molestation by her male health and physical education teacher
constituted sufficient notice because the school district failed to
provide an adequate complaint and grievance procedure as required
by Title IX regulations but instead issued a school booklet
directing students and parents to direct complaints to the child’s
primary or home room teacher; (2) whether a reasonable trier of
fact could have found from the evidence that the male teacher’s
conduct constituted quid pro quo harassment, as well as hostile
environment harassment, of the female second grader, for which the
school district is liable regardless of whether it knew or should
have known or approved of the harassment.
Finally, applying the recently developed sexual harassment
precepts, I conclude that (1) the plaintiffs-appellees presented
sufficient evidence from which a reasonable trier of fact could
conclude that the school district had notice of the sexual
harassment, which it failed to take adequate remedial steps to
arrest and prevent, and therefore could be held liable for damages
caused by hostile environment discrimination; and (2), in the
alternative, a reasonable trier of fact could find that the male
teacher’s conduct constituted quid pro sexual harassment of the
- 25 -
female second-grade student and, accordingly, if judgment is not
rendered at this level for the plaintiff-appellees, the case should
be remanded for further proceedings on the quid pro quo issue.
Moreover, in either event, this court should hold that the
trial court exceeded its authority in denying the plaintiff plenary
damages and in imposing restrictions upon their recovery not
provided by law.
JURISPRUDENTIAL DEVELOPMENTS
Title IX provides that “no person in the United States shall,
on the basis of sex, ... be subjected to discrimination under any
education program or activity receiving Federal financial
assistance....” 20 USC § 1681 (a). In Franklin v. Gwinnett County
Pub. Sch., 503 U.S. 60 (1992), the Supreme Court recognized that
Title IX affords an implied private cause of action for money
damages in cases of intentional sexual discrimination; and that a
teacher’s sexual harassment and abuse of a student because of the
student’s sex constitutes sexual discrimination. Id., 503 U.S. at
74-75, (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64
(1986)).
In reviewing claims of sexual discrimination brought under
Title IX, whether by students or employees, courts have generally
adopted the same legal standards that are applied to such claims
under Title VII. Student Claims: Kinman v. Omaha Public School
District, 94 F.3d 463, 467-68 (8th Cir. 1996); Seamons v. Snow, 84
- 26 -
F.3d 1226, 1232 (10th Cir. 1996); Davis v. Monroe County Bd. of
Educ., 74 F.3d 1186 (11th Cir. 1996), vacated, pending reh’g en
banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243
(2d Cir. 1995); Brown v. Hot, Sexy and Safer Productions, 68 F.3d
525 (1st Cir. 1995); Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.
1994); Roberts v. Colo. State Bd. of Agriculture, 998 F.2d 824,
832 (10th Cir.), cert. denied, ---U.S. ---, 114 S.Ct. 580 (1993);
Bosley v. Kearney R-1 Sch. Dist., 904 F. Supp. 1006, (W.D.Mo.
1995); Sharif by Salahuddin v. NYS Ed. Dep., 709 F.Supp. 345
(S.D.N.Y. 1989); Moise v. Temple Univ. Sch. Med., 613 F.Supp. 1360
(E.D.Pa. 1985), aff’d, 800 F.2d 1136 (3d. Cir. 1986); Employee
Claims: Brine v. Univ. of Iowa, 90 F.3d 271, 275-6 (8th Cir. 1996);
Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-98 (1st Cir.
1988); Preston v. Comm. of Va., 31 F.3d 203 (4th Cir. 1994); Mabry
v. State Bd. of Community Colleges and Occupational Educ., 813 F.2d
311 (10th Cir. 1987), cert. denied, 484 U.S. 849 (1987); cf. Doe v.
Taylor, 975 F.2d 137, 149 (5th Cir. 1992)(“[T]here is no meaningful
distinction between the work environment and school environment
which would forbid such discrimination in the former context and
tolerate it in the latter.”)
The circuits addressing the elements of a student’s sexual
harassment claim based on hostile educational environment agree
that the plaintiff must prove: (1) that the student belongs to a
protected group; (2) that the student was subject to unwelcome
- 27 -
sexual harassment; (3) that the harassment was based on sex; (4)
that the harassment was sufficiently severe or pervasive so as to
alter the conditions of the student’s education and create an
abusive educational environment; and (5) that some basis for
institutional liability has been established. Kinman v. Omaha
Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir. 1996); Seamons v.
Snow, 84 F.3d 1226, 1232 (10th Cir. 1996); Davis v. Monroe County
Bd. of Educ., 74 F.3d 1186 (11th Cir. 1996), vacated, pending reh’g
en banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243
(2d Cir. 1995).
A majority of those circuits have held that in order to
establish the fifth element--viz., that there is a basis for the
educational institution’s liability--Title VII principles apply:
(1) The plaintiff must show that the school knew or should have
known of the harassment in question and failed to take prompt
remedial action; and (2) the student can satisfy the “knew or
should have known” requirement by demonstrating that adequate
information concerning the harassment was communicated to
management-level school employees or by showing that the
pervasiveness of the harassment gives rise to a reasonable
inference of knowledge or constructive knowledge. Kinman v. Omaha
Sch. Dist., supra; Davis v. Monroe County Bd. of Educ., supra.;
Murray v. New York Univ. College of Dentistry, supra. Accord Doe
v. Petaluma City Sch. Dist., 1996 WL 432298 (N.D.Cal. 1996);
- 28 -
Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288
(N.D.Cal. 1993); Burrow v. Postville Community Sch. Dist., 929
F.Supp. 1193 (N.D. Iowa 1996); Bruneau v. South Kortright Central
Sch. Dist., 935 F.Supp. 162 (N.D.N.Y. 1996); Linson v. Trustees of
the Univ. of Penn., 1996 WL 479532 (E.D.Pa.). The court in Seamons
v. Snow, supra, disposed of the plaintiff’s claim solely on the
basis of his failure to allege facts constituting sexual
discrimination without addressing the notice issue.
That Title VII standards should be applied in analyzing a
Title IX sexual harassment claim by a student is also evident from
the decisions of the Supreme Court. Although the Court did not
expressly address the issue in Franklin v. Gwinnett County Public
Schools, 503 U.S. 60 (1992), in holding that Title IX authorizes
awards of compensatory damages to Title IX plaintiffs generally,
the Court invoked Title VII authority and principles. Franklin
involved a high school student’s allegations that she had been
sexually harassed and assaulted by a teacher and that school
officials with actual knowledge of the teacher’s misconduct had
failed to intervene. Id., 503 U.S. at 64-65. In rejecting the
argument that the specific language of Title IX did not give
educational institutions sufficient notice of their liability for
damages for such intentional discrimination, the Franklin Court
stated:
- 29 -
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 ’discriminate[s]’ on the
basis of sex.” Meritor Sav[ings] Bank, FSB v. Vinson, 477
U.S.57, 64 (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.
Id., 503 U.S. at 75. The Court’s citation to Meritor Savings Bank,
a Title VII case, in support of Franklin’s central holding
indicates that, in a Title IX suit for gender discrimination based
on sexual harassment of a student, an educational institution may
be held liable under standards similar to those applied in cases
under Title VII. See Murray v. New York Univ. College of
Dentistry, 57 F.3d at 248-49.
Furthermore, the Supreme Court has consistently, both before
and after Franklin, used the term “intentional” to distinguish
disparate treatment discrimination, including hostile environment
discrimination, from unintentional disparate impact discrimination.
Thus, by stating that money damages may be awarded only for
intentional violations of Title IX, the Supreme Court did not
intend to foreclose student victims from such recovery for sexual
harassment amounting to either quid pro quo or hostile environment
discrimination under principles modeled on the Title VII standards.
In Guardians Ass’n v. Civil Serv. Comm’s of New York, 463 U.S.
582 (1983), the Supreme Court held, in a Title VI action prior to
Franklin, that monetary damages should not be awarded under Title
- 30 -
VI for unintentional disparate impact discrimination. Justice
White, announcing the judgment of the Court, explicitly noted that
the holding that damages were not available for unintentional
discrimination based on disparate impact left open the issue of
whether money damages would be appropriate in cases of “intentional
discrimination.” Id. at 597. Thus, Justice White clearly implied
that “intentional discrimination” is discrimination other than that
based on disparate impact. This section of Justice White’s opinion
was joined by Justice Rehnquist. Additionally, the distinction
between intentional discrimination and unintentional disparate
impact discrimination was implicit in the concurring opinions and
dissents of Justices O’Connor, id. at 613, Marshall, id. at 616,
and Stevens, Brennan and Blackmun, id. at 645. Therefore, a
majority of the Guardians Court implicitly but clearly defined
“intentional discrimination” as discrimination other than disparate
impact discrimination. Doe v. Petaluma City Sch. Dist., 1996 WL
432298 at *3 (N.D.Cal. July 22, 1996).
Subsequent to Franklin, the Supreme Court in Landgraf v. USI
Film Products, 511 U.S. 244 (1994), confirmed the distinction it
draws between intentional discrimination (including hostile
environment sexual harassment) and unintentional disparate impact
discrimination. The Civil Rights Act of 1991 created a right to
recover compensatory damages in cases of “unlawful intentional
discrimination (not an employment practice that is unlawful because
- 31 -
of its disparate impact)” prohibited by Title VII. 42 U.S.C. §
1981(a). This amendment to Title VII sets up the same dichotomy as
did the Supreme Court in Franklin and Guardians, for it limits the
award of money damages to cases involving “intentional
discrimination.” In Landgraf the Supreme Court, in a Title VII
case involving a hostile work environment claim, held that the
provisions affording the right to such money damages do not apply
to a Title VII case that was pending on appeal when the statute was
enacted. The Supreme Court, in its discussion of whether the
amendment should be given retroactive application, clearly assumed
that “intentional discrimination” would include hostile work
environment discrimination based on co-worker harassment.
Landgraf, 511 U.S. at 249-50. The Court’s assumption evidently was
based on its own classification of hostile environment
discrimination as “intentional discrimination.” For example, the
Court stated that the amendment “confers a new right to monetary
relief on persons like petitioner who were victims of a hostile
work environment but were not constructively discharged.” Id. at
283. Thus the Guardians and Landgraf opinions indicate that when
the Supreme Court referred to “intentional discrimination” in
Franklin, it was referring to any form of discrimination other
than disparate impact discrimination. In other words, “intentional
discrimination” includes hostile work environment discrimination.
See Doe v. Petaluma City Sch. Dist., 1996 WL 432298 at *7-8 (N.D.
- 32 -
Cal. July 22, 1996) (citing also as earlier authority Henson v.
City of Dundee, 682 F.2d 897, 902-05 n.11 (11th Cir. 1982); Andrews
v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir.
1990)(“[T]he intent to discriminate on the basis of sex in cases
involving sexual propositions, innuendo, pornographic materials, or
sexual derogatory language is implicit, and thus should be
recognized as a matter of course”)).
This background explains why recent cases under the 1991
amendments to Title VII simply characterize hostile work
environment discrimination as a species of intentional
discrimination, without discussion. Petaluma, 1996 WL 432298 at
*10 (citing Townsend v. Indiana Univ., 995 F.2d 691 (7th Cir.
1993); Raney v. Dist. Of Columbia, 892 F.Supp. 283 (D.D.C. 1995);
Sassaman v. Heart City Toyota, 879 F.Supp. 901 (N.D.Ind. 1994);
Splunge v. Shoney’s, Inc., 874 F.Supp. 1258 (M.D.Ala. 1994);
Preston v. Income Producing Management, Inc., 871 F.Supp. 411
(D.Kan. 1994); Meadows v. Guptill, 856 F.Supp. 1362 (D.Ariz. 1993);
Powell v. Las Vegas Hilton Corp., 841 F.Supp. 1024 (D.Nev. 1992)).
“If there was ambiguity regarding whether hostile environment
claims were a species of intentional discrimination, this ambiguity
has now been resolved by the 1991 amendments and the cases applying
them.” Id.
Moreover, the recent draft guidances issued by the Office of
Civil Rights of the Department of Education discussed below
- 33 -
confirms that the majority of the courts are correct in applying
the standards developed under Title VII in the adjudication and
review of students’ claims based on Title IX violations involving
peer or school employee hostile environment discrimination.
REGULATORY DEVELOPMENTS
In Rowinsky we recognized that “[w]hen interpreting title IX,
we accord the OCR’s [Office of Civil Rights of the Department of
Education] interpretations appreciable deference.” 80 F.3d at 1015
n.20 (citing Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir.
1993)), which elaborated:
[W]e treat [the Department of Education], acting through its
OCR, as the administrative agency charged with administering
Title IX.
Recognizing the agency’s role has important practical and
legal consequences. Although [the Department] is not a party
to this appeal, we must accord its interpretation of Title IX
appreciable deference. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct.
2778, 2782, 81 L.Ed.2d 694 (1984); see also Udall v. Tallman,
380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616
(1965)(noting that the Supreme Court “gives great deference to
the interpretation given the statute by the officers or agency
charged with its administration”).
Nevertheless, the Rowinsky majority concluded that 34 C.F.R. §
106.311 cannot reasonably be read to prohibit a recipient from
1
Subpart D--Discrimination on the Basis of Sex
in Education Programs and Activities
Prohibited
§ 106.31 Education Programs and Activities.
(a) General. Except as provided elsewhere in this
part, no person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be
subjected to discrimination under any academic,
- 34 -
knowingly allowing peer sexual harassment of students. 80 F.3d at
1015. The majority inferred as much because the most definitive
statement by the OCR on sexual harassment at that time left
unresolved the issue of peer sexual harassment. Id.
Subsequent to the handing down of Rowinsky on April 2, 1996,
however, the OCR issued (1) on August 16, 1996, a draft document on
“Sexual Harassment Guidance : Peer Sexual Harassment [Guidance],”
providing educational institutions with information regarding the
standards used by OCR to investigate and resolve cases involving
extracurricular, research, occupational training, or
other education program or activity operated by a
recipient which receives or benefits from Federal
financial assistance.....
(b) Specific prohibitions. Except as provided in
this subpart, in providing any aid, benefit, or service
to a student, a recipient shall not, on the basis of sex:
* * *
(2) Provide different aid, benefits, or
services or provide aid, benefits, or services
in a different manner;
(3) Deny any person any such aid, benefit, or
service;
(4) Subject any person to separate or
different rules of behavior, sanctions, or
other treatment;
* * *
(6) Aid or perpetuate discrimination against
any person by providing significant assistance
to any agency, organization, or person which
discriminates on the basis of sex in providing
any aid, benefit or service to students or
employees;
(7) Otherwise limit any person in the
enjoyment of any right, privilege, advantage,
or opportunity.
- 35 -
claims that peer sexual harassment has created a hostile
environment in violation of Title IX. 61 Fed. Reg. 42,728 (August
16, 1996); and (2) on October 4, 1996, a draft document on “Sexual
Harassment Guidance: Harassment of Students by School Employees,”
providing educational institutions with information regarding the
standards used by the OCR to investigate and resolve cases
involving claims that sexual harassment of students by school
employees has created a hostile environment in violation of Title
IX. 61 Fed. Reg. 52,171 (October 4, 1996). (N.B. The OCR attached
both draft documents as appendices to 61 Fed. Reg. 52,171.) The OCR
invited interested parties to comment on the clarity and
completeness of the draft guidances. The periods for comment on
these draft documents have elapsed. The OCR is proceeding to
combine the substance of the two drafts in one Guidance that will
be issued in the very near future.
In effect, the new OCR Guidance will provide that, in
accordance with the OCR’s longstanding nationwide practice, the
legal principles developed under Title VII should be applied in
determining when a hostile environment discrimination violation has
occurred because of sexual harassment of a student by either peers
or a school employee. In the more recent draft document the OCR
stated:
Consistent with the Supreme Court’s decision in Franklin v.
Gwinnett County Public Schools, 503 U.S. 60 (1992)(holding
that a student may sue a school district for damages based on
sexual harassment by a teacher), OCR has applied Title IX to
- 36 -
prohibit sexual harassment of students by school employees.
The standards in the Guidance reflect OCR’s longstanding
nationwide practice and reflect well established legal
principles developed under Title VII of the Civil Rights Act
of 1964, which prohibits gender discrimination in employment.
61 Fed. Reg. at 52,172.
Below are highlights of the two Guidance drafts. The material
is lifted as almost verbatim excerpts from the drafts. Footnote
material has been merged with text material in many instances.
Citations of authorities have been selectively drawn from the
footnotes. This presents a quick, incomplete view of some of the
significant provisions.
School Employee Harassment
According to the OCR draft Guidance, sexual harassment of
students by a school employee is a form of prohibited sex
discrimination in the following circumstances:
Quid Pro Quo Harassment--A school employee explicitly or
implicitly conditions a student’s participation in an
education program or school activity or bases an educational
decision on the student’s submission to unwelcome sexual
advances, requests for sexual favors, or other verbal or
physical conduct of a sexual nature. Quid pro quo harassment
is equally unlawful whether the student resists and suffers
the threatened harm or submits and thus avoids the threatened
harm. [61 Fed.Reg. at 52,172].
- 37 -
Hostile Environment Harassment--Sexually harassing conduct by
an employee (that can include unwelcome sexual advances,
requests for sexual favors, and other verbal or physical
conduct of a sexual nature) is sufficiently severe,
persistent, or pervasive to limit a student’s ability to
participate in or benefit from an education program or
activity, or to create a hostile or abusive educational
environment. [61 Fed.Reg. at 52,172].
A school’s liability for sexual harassment by its employees is
determined by application of agency principles, see Franklin v.
Gwinnett County Public Schools, 503 U.S. 60, 75 (1992), i.e., by
principles governing the delegation of authority to or
authorization of another person to act on one’s behalf.
Accordingly, a school will always be liable for even one instance
of quid pro quo harassment by a school employee in a position of
authority, such as a teacher or administrator, whether or not it
knew, should have known, or approved of the harassment at issue.
See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 70-71 (1986);
see also Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 901 (1st
Cir. 1988); EEOC Notice N-915-050, March 1990, at 21; Kadiki v.
Virginia Commonwealth Univ., 892 F. Supp. 746, 752 (E.D. Va. 1995).
Under agency principles if a teacher or other employee uses the
authority he or she is given (e.g., to assign grades) to force a
student to submit to sexual demands, the employee “stands in the
- 38 -
shoes” of the school and the school will be responsible for the use
of its authority by the employee/agent. Kadiki, 892 F.Supp. at
754-55. [61 Fed.Reg. at 52,172-3].
A school will also be liable for hostile environment sexual
harassment by its employees, i.e., for harassment that is
sufficiently severe, persistent, or pervasive to limit a student’s
ability to participate in or benefit from the education program, or
to create a hostile or abusive environment if the employee--(1)
Acted with apparent authority (i.e., because of the school’s
conduct, the employee reasonably appears to be acting on behalf of
the school, whether or not the employee acted with authority); see
Restatement (2d) Agency § 219(2)(d); Martin v. Cavalier Hotel
Corp., 48 F.3d 1343, 1352 (4th Cir. 1994); or (2) was aided in
carrying out the sexual harassment of students by his or her
position of authority with the institution. EEOC Policy Guidance on
Current Issues of Sexual Harassment at 28; Martin v. Cavalier Hotel
Corp. 48 F.3d at 1352; Karibian, 14 F.3d at 780; Hirshfeld v. New
Mexico Corrections Dept., 916 F.2d 575, 579 (10th Cir. 1990). In
many cases the line between quid pro quo and hostile environment
discrimination will be blurred, and an employee’s conduct may
constitute both types of harassment. [Id. at 52,173].
Even in situations not involving (i) quid pro quo harassment,
(ii) creation of a hostile environment through an employee’s
apparent authority, or (iii) creation of a hostile environment in
- 39 -
which the employee is aided in carrying out the sexual harassment
by his or her position of authority, a school will be liable for
sexual harassment of its students by its employees if the school
has notice of the harassment (i.e., knew or should have known of
the harassment), but failed to take immediate and appropriate steps
to remedy it. Cf. Karibian, 14 F.3d at 780. Determining when a
school has notice of sexual harassment is discussed in the Peer
Harassment Guidance. [61 Fed.Reg. at 72,173] (discussed infra at
p. 18 et seq.).
Schools are required by the Title IX regulations to adopt and
publish grievance procedures providing for prompt and equitable
resolution of sex discrimination complaints, including complaints
of sexual harassment, and to disseminate a policy against sex
discrimination. 34 CFR 106.8(a) and (b)2. If a school fails to do
2
§ 106.8 Designation of responsible employee
and adoption of grievance procedures.
(a) Designation of responsible employee. Each
recipient shall designate at least one employee to
coordinate its efforts to comply with and carry out its
responsibilities under this part, including any
investigation of any complaint communicated to such
recipient alleging any actions which would be prohibited
by this part. The recipient shall notify all its
students and employees of the name, office address and
telephone number of the employee or employees appointed
pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient
shall adopt and publish grievance procedures providing
for prompt and equitable resolution of student and
employee complaints alleging any action which would be
prohibited by this part.
- 40 -
so, it will be liable for the lack of procedures regardless of
whether sexual harassment occurred. In addition, if OCR determines
that the harassment occurred, the school may be in violation of
Title IX as to the harassment, under the agency principles
previously discussed, because a school’s failure to implement
effective policies and procedures against discrimination may create
apparent authority for school employees to harass students. EEOC
Policy Guidance at p. 25 (“***in the absence of a strong, widely
disseminated, and consistently enforced employer policy against
sexual harassment, and an effective complaint procedure, employees
could reasonably believe that a harassing supervisor’s actions will
be ignored, tolerated, or even condoned by upper management.”)
[61 Fed.Reg. at 52,l73].
In all cases of alleged harassment by employees investigated
by OCR, OCR will determine whether a school has taken immediate and
appropriate steps reasonably calculated to end any harassment that
has occurred, remedy its effects, and prevent harassment from
occurring again. If the school has done so, OCR will consider the
case against that school resolved and will take no further action.
This is true in cases in which the school was in violation of Title
IX, as well as those in which there has been no violation of
federal law. However, schools should note that the Supreme Court
has held that, should a student file a private lawsuit under Title
IX, monetary damages are available as a remedy if there has been a
- 41 -
violation of Title IX. Franklin, 503 U.S. at 76. Of course, a
school’s immediate and appropriate remedial actions are relevant in
determining the extent and nature of damages suffered by a
plaintiff. [61 Fed.Reg. at 52,173].
Although generally, a plaintiff must prove that the sexual
harassment is unwelcome in order to state an actionable claim, if
elementary students are involved, welcomeness will not be an issue:
OCR will never view sexual conduct between an adult school employee
and an elementary school student as consensual. Because students
may be encouraged to believe that a teacher has absolute authority
over the operation of his or her classroom, a student may not
object to a teacher’s sexually harassing comments during class.
See Leija v. Canutillo ISD, 887 F. Supp. 947, 945 (N.D. Tex.
1993)(“young children, taught to respect their teachers and follow
their teacher’s request, often do not know what to do when abuse
occurs”). [61 Fed.Reg. at 52,173].
In determining whether an employee’s sexual harassment of a
student created a hostile environment, i.e., whether it was
sufficiently severe, persistent, or pervasive to limit a student’s
ability to participate in or benefit from the education program, or
create a hostile or abusive educational environment, OCR considers
the factors discussed in the Peer Harassment Guidance. [61
Fed.Reg. at 52,175-83].
Peer Harassment
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The Peer Harassment draft guidance discusses the analysis that
the OCR follows, and that recipients of federal funding should use,
when investigating allegations that sexual harassment of a student
or students by another student or group of students (peer
harassment) has created a hostile environment at an educational
institution that receives federal financial assistance. [61
Fed.Reg. at 52,175].
Under Title IX and its implementing regulations, no individual
may be discriminated against on the basis of sex in educational
programs receiving federal financial assistance. 20 USC § 1681 et
seq.; 34 CFR § 106.31(b), supra n.1. In analyzing sexual
harassment claims, the Department also applies, as appropriate to
the educational context, many of the legal principles applicable to
sexual harassment in the work place, developed under Title VII of
the Civil Rights Act of 1964, 42 USC § 2000e-2(a). See Franklin v.
Gwinnett County Public Schools, 503 U.S. 60, 75 (1992)(applying
Title VII principles in determining that a student was entitled to
protection from sexual harassment by a teacher in school under
Title IX); Murray v. New York Univ. College of Dentistry, 57 F.3d
243, 249 (2d Cir. 1995)(same); Doe v. Petaluma City Sch. Dist., 830
F. Supp. 1560, 1571-72 (N.D.Cal. 1993) (same), rev’d in part on
other grounds, 54 F.3d 1447 (9th Cir. 1995). [61 Fed.Reg. at
52,175].
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In addition, many of the principles applicable to racial
harassment under Title VI of the Civil Rights Act, 42 USC § 2000d
et seq., and Title VII also apply to sexual harassment under Title
IX. Indeed, Title IX was modeled on Title VI, Cannon v. Univ. of
Chicago, 441 U.S. 677, 694 (1979).3 [61 Fed.Reg. at 52,175 n.2].
Peer sexual harassment is a form of prohibited sex
discrimination where the harassing conduct creates a hostile
environment. See Franklin, 503 U.S. at 75; Bosley v. Kearney R-
1SD, 904 F.Supp. 1006, 1023 (W.D.Mo. 1995); Burrow v. Postville
CSD, 1996 U.S. Dist LEXIS 9147 at *34 (N.D. Iowa June 17, 1996);
Oona R.-S. v. Santa Rosa City Schools, 890 F.Supp. 1452 (N.D.Cal.
1995); Davis v. Monroe County Bd. of Ed., 74 F.3d 1186, 1193 (11th
Cir. 1996), vacated, reh’g granted; cf. Murray v. NYU, 57 F.3d at
249. Title IX does not make a school responsible for the actions
of the harassing student, but rather for its own discrimination in
failing to act and permitting the harassment to continue once a
school official knows that it is happening. [61 Fed. Reg. at
52,180 n.3].
A school will have notice of a hostile environment when it
knew or should have known of the harassment. Davis v. Monroe
County, 74 F.3d at 1194, and other authorities including Rosa H. v.
3
For information on racial harassment, see the Department’s
Notice of Investigative Guidance for Racial Harassment, 59 Fed Reg.
11,448 (1994).
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San Elizario ISD, 887 F.Supp. 140, 143 (W.D.Tex. 1995)(“[T]he
school district is in the best position to be on the lookout for
discriminatory conduct * * * A ‘knew or should have known’
requirement mandates that the school district monitor its employees
and students and prevents a situation where the district, through
its employees or policies, turns a blind eye toward discriminatory
conduct.”)]. Moreover, schools are required by the Title IX
regulations to have grievance procedures through which students can
complain of alleged sex discrimination by other students, including
sexual harassment. 34 CFR § 106.8(b). [61 Fed.Reg. 52,178-79].
A school will be liable for the conduct of its students that
creates a sexually hostile environment where (i) a hostile
environment exists, (ii) the school knows (“has notice”) of the
harassment, and (iii) the school fails to take immediate and
appropriate steps to remedy it. [61 Fed.Reg. at 52,177]. [Citing
again Franklin, Bosley, Doe, Burrow, Oona R.-S., Davis, and Murray,
cited above.]
A recipient can receive notice of peer sexual harassment
creating a hostile environment in many different ways. Because
schools are required to have Title IX grievance procedures, a
student may have filed a grievance or complained to a teacher about
fellow students sexually harassing him or her. A student, parent,
or other individual may have contacted other appropriate personnel,
such as a principal, campus security, bus driver, teacher, an
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affirmative action officer, or staff in the office of student
affairs. An agent or responsible employee of the institution may
have witnessed the harassment. The recipient may receive notice in
an indirect manner, from sources such as a member of the school
staff, a member of the educational or local community, or the
media. The recipient also may have received notice from flyers
about the incident[s] posted around the school. See Racial
Harassment Guidance, 59 Fed. Reg. at 11,450 (discussing how a
school may receive notice). [61 Fed.Reg. at 52,178].
Constructive notice exists when the school “should have” known
about the harassment--when the school would have found out about
the harassment through a “reasonably diligent inquiry.” See Yates
v. Avco Corp., 819 F.2d 630, 634-36 (6th Cir. 1987)(Title VII
case); Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983)(same);
Racial Harassment Investigative Guidance, 59 Fed. Reg. at 11,450.
In some cases, the pervasiveness of the harassment may be enough to
conclude that the school should have known of the hostile
environment--where the harassment is widespread, openly practiced,
or well-known to students and staff (such as sexual harassment
occurring in hallways, graffiti in public areas, or harassment
occurring during recess under a teacher’s supervision).[61 Fed.Reg.
at 52,177]
CONCLUSIONS
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I respectfully disagree with the majority opinion’s failure
to apply Title IX as impliedly interpreted by the Supreme Court in
Franklin v. Gwinnett County Public Schools, as implemented by 34
CFR § 106.1 et seq., and as interpreted by the OCR’s draft
Guidances on Harassment of Students by School Employees, 61
Fed.Reg. at 52171-52183 (October 4, 1996). In my opinion these
authorities strongly indicate that we should apply the standards
developed under Title VII in the adjudication and review of a
student’s claim of hostile environment sexual discrimination by a
school employee under Title IX. All of the other circuits which
have addressed this question have done so. Kinman v. Omaha Public
Sch. Dist., 94 F.3d 463 (8th Cir. 1996); Seamons v. Snow, 84 F.3d
1226 (10th Cir. 1996); Davis v. Monroe County Bd. of Educ., 74 F.3d
1186 (11th Cir. 1996), vacated, pending reh’g en banc; Murray v.
New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir. 1995).
The majority opinion does not offer any cogent legal reason for its
failure to recognize and follow these authorities. Furthermore,
although this court may not have been aware of the OCR’s draft
guidances when the case was argued, now that we aware of them we
should give great deference to the interpretations of the OCR as
the administrative agency charged with administering Title IX. See
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984); Udall v. Tallman, 380 U.S. 1 (1965); Rowinsky v.
Bryan ISD, 80 F.3d 1006 (5th Cir. 1996).
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Accordingly, in a Title IX action based on hostile environment
discrimination caused by a school employee’s sexual harassment of
a student, the plaintiff must establish a basis for the educational
institution’s liability. This requires the plaintiff to show that
the school knew or should have known of the harassment in question
and failed to take prompt remedial action. Ordinarily, the
plaintiff can satisfy the “knew or should have known” requirement
by demonstrating that information of the harassment was
communicated to management-level school employees or by showing
that the pervasiveness of the harassment gave rise to an inference
of actual or constructive knowledge. In the present case, because
it appears that the only school employee who received any
communication or information about the harassment was a teacher,
not a management-level school employee, the plaintiffs would have
failed to prove their hostile environment claim, had the school
district complied with its obligations under the Title IX
regulations.
Schools are required by the Title IX regulations, however, to
adopt and publish grievance procedures providing for prompt and
equitable resolution of sex discrimination complaints, including
complaints of sexual harassment, and to disseminate a policy
against sex discrimination. 34 CFR § 106.8(b); 61 Fed.Reg. at
52,173. If a school fails to do so, it will be liable under Title
IX for the lack of grievance procedures, regardless of whether
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sexual harassment occurred. Id. In addition, if OCR determines
that harassment occurred, the school may be in violation of Title
IX as to the harassment under agency principles because the failure
to implement effective policies and procedures against
discrimination may create apparent authority for school employees
to harass students. Id.; see also EEOC Policy Guidance at 25.
Because we owe accord great deference to the interpretation of
Title IX by the OCR due to its role as the administrative agency
charged with administering the statute, these principles should be
applied to the evidence in the present case to determine whether
notice of the harassment should be imputed to the school district.
The plaintiffs’ brief and the District Court’s order point to
evidence from which a reasonable trier of fact could conclude that
notice of the harassment should be attributed to the school
district. There was evidence that prior to the incidents in
question the school district had no policy directing students and
parents as to how to make a report of sexual harassment. The
Canutillo Elementary Student Handbook directed students or parents
who had any complaint to first take it up with the student’s
primary teacher. Rosemarie’s understanding was that she should
direct any complaints to her primary teacher. The evidence further
indicated that Rosemarie did not know where the office of the
superintendent was located or that there was a Title IX coordinator
ostensibly responsible for investigating allegations of child
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abuse. In its memorandum and opinion order the District Court
found that when Rosemarie Leija and her classmate Lizette reported
the molestations to their primary teacher, that teacher discounted
the girls’ story and took no action of any kind to address the
matter. When Leija’s parents later reported the harassment to the
same teacher, she advised against stirring up trouble and convinced
the parents nothing was happening.
Whether a school district can be charged with knowledge of a
student’s sexual harassment in a civil action because of its
failure to comply with its obligations under Title IX and CFR §
106.8 to establish adequate complaint and grievance procedures is
is a question within our jurisdiction. On consideration of an
interlocutory order certified for appeal by a district court
pursuant to 28 USC § 1292(b), a court of appeals may exercise
jurisdiction over any question that is included within the order
containing the controlling question of law and is not tied to the
particular question formulated by the District Court. Yamaha v.
Motor Corp. Calhoun, --- U.S.---, 116 S.Ct. 619 (1996). As the
Court explained:
[T]he appellate court may address any issue fairly included
within the certified order because “it is the order that is
appealable, and not the controlling question identified by the
district court.” 9 J. Moore & B. Ward, Moore’s Federal
Practice ¶ 110.25[1], p. 300 (2d 3d. 1995). See also 16 C.
Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice
and Procedure §, pp. 144-145 (1977)(“[T]he court of appeals
may review the entire order, either to consider a question
different than the one certified as controlling or to decide
the case despite the lack of any identified controlling
- 50 -
question.”); Note, Interlocutory Appeals in the Federal Courts
Under 28 USC § 1292(b), 88 Harv. L. Rev. 607, 628-629
(1975)(“scope of review [includes] all issues material to the
order in question”).
Id., 116 S.Ct. at 623.
By the same token, this court can exercise jurisdiction over
the question of whether the male health and physical education
teacher committed quid pro quo sexual harassment upon Rosemarie.
This is an issue that is material to and fairly included within the
certified order. The District Court recognized in its memorandum
opinion and order that quid quo pro abuse is a type of sexual
harassment actionable under Title VII in which the actions of the
employer’s agents or supervisory personnel are imputed to the
employer whether or not the employer knew, should have known, or
approved of the actions. That court further concluded that Title
IX cases are properly analyzed, in part, under these two types of
discrimination.
Similarly, the OCR draft Guidance provides that quid pro quo
harassment occurs when a school employee explicitly or implicitly
conditions a student’s participation in an education program or
school activity or bases an educational decision on the student’s
submission to unwelcome sexual advances, requests for sexual
favors, or other verbal or physical conduct of a sexual nature. 61
Fed. Reg. at 52,172, citing Alexander v. Yale Univ., 459 F.Supp. 1,
4 (D. Conn. 1977); Kadiki v. Va. Commonwealth Univ., 892 F.Supp.
746, 752 (E.D.Va. 1995); Karibian v. Columbia Univ., 14 F.3d 773,
- 51 -
777-79 (2d Cir. 1994). A school will always be liable for even one
instance of quid pro quo harassment by a school employee in a
position of authority, such as a teacher or administrator, whether
or not it knew, should have known, or approved of the harassment.
See Meritor Savings Bank v. Vinson, 477 U.S. at 70-71; Lipsett v.
Univ. of Puerto Rico, 864 F.2d 881, 901 (1st Cir. 1988); EEOC
Notice N-915-050, March 1990, Policy Guidance on Current Issues of
Sexual Harassment, at 21; Kadiki, 892 F.Supp. at 752; 61 Fed. Reg.
at 52,173.
The District Court found that Tony Perales taught Rosemarie
Leija health and physical education in the second grade during the
1989-90 school year. During that year, Coach Perales sexually
molested her while she was in his classroom. Most of the abuse
occurred while he was showing movies to the class in a darkened
classroom. He would instruct Rosemarie to come to the back of the
room and sit on his lap. He would then place his hands beneath her
undergarments and rub her chest, her buttocks, and between her
legs. The plaintiffs’ brief points to evidence in the record that
Perales referred to Rosemarie as “Princess,” although he did not
have pet names for the other students. He singled out Rosemarie
for special attention, allowing her to sit out physical education
exercises and to do favors and special tasks for him, such as
running errands. He also gave her candy and other gifts that he
did not confer on the other students.
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Consequently, a reasonable trier of fact could have found
that Rosemarie was placed in a situation, as has occurred in many
cases, in which the line between quid pro quo and hostile
environment discrimination was blurred. See 61 Fed.Reg. at 52,173.
At her young age Rosemarie reasonably could have believed that she
had to tolerate sexual touching, manipulating and petting by
Perales as the price he required for his gifts and special
treatment of her, his continued favoritism and goodwill, her
continued participation in his class and in the health film
viewing, and her avoidance of embarrassment and humiliation that
she might suffer had she challenged his advances. Consequently, if
this court does not affirm the judgment of liability against the
school district on the plaintiffs’ hostile environment sexual
discrimination claim, it should either do so on the grounds of the
school district’s liability for quid pro quo sexual harassment, or
it should reserve the latter issue for consideration by the
district court upon remand.
The District Court clearly erred in placing limits on damages
recoverable under Title IX. In Franklin the Supreme Court held
that plaintiffs may recover compensatory damages under Title IX.
The cornerstone to the Court’s analysis was that all appropriate
remedies are presumed available unless Congress has expressly
indicated otherwise. Franklin, 503 U.S. at 68. The Court noted
that the amendments to Title IX subsequent to its decision in
- 53 -
Cannon indicated that Congress did not intend to limit remedies
available in a suit brought under Title IX. Id. at 72-73. Based on
the amendments to Title IX and other legislative enactments, the
“traditional backdrop of a full panoply of rights,” and the Court’s
prior decisions, the Franklin Court concluded that a private right
of action under Title IX provides a full spectrum of remedies to a
successful plaintiff. Id. Accord Rodgers v. Magnet Cove Public
Schools, 34 F.3d 642 (8th Cir. 1994); Waldrop v. Southern Co.
Services, Inc., 24 F.3d 152 (11th Cir. 1994); Pandazides v.
Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994).
For the foregoing reasons I respectfully dissent from the
majority’s decision to reverse the District Court’s judgment in
favor of the plaintiffs holding the school district liable for
damages under Title IX and to remand the case for entry of judgment
in favor of the school district. Instead, for the reasons assigned
above, the district court’s judgment on liabillity on the basis of
hostile environment sexual discrimination should be affirmed and
its judgment placing limits on damages recoverable under Title IX
should be reversed. The case should be remanded to the district
court for further proceedingss in light of the reasons stated
herein.
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