F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CHASE BRYANT and CHARLES
BRYANT,
Plaintiffs-Appellants,
v. No. 02-6212
INDEPENDENT SCHOOL DISTRICT
NO. I-38 OF GARVIN COUNTY,
OKLAHOMA, also known as
Wynnewood Public Schools,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 01-CIV-375-C)
Garvin A. Isaacs (Nancy A. Zerr with him on the briefs) of Garvin A. Isaacs, Inc.,
Oklahoma City, Oklahoma, for Plaintiffs-Appellants.
Frederick J. Hegenbart (Jerry A. Richardson with him on the brief) of Rosenstein,
Fist & Ringold, Tulsa, Oklahoma, for Defendant-Appellee.
Before TACHA, Chief Circuit Judge, McKAY and HENRY, Circuit Judges.
McKAY, Circuit Judge.
Chase and Charles Bryant brought this action in the District Court for the
Western District of Oklahoma pursuant to Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d, et seq., (1994), alleging violations of their civil rights.
The Bryants appeal the United States District Court Order granting summary
judgment in favor of Independent School District No. I-38 of Garvin County,
Oklahoma (“the School District”).
Appellants were students at Appellee School. As a result of their
participation in two separate fights during the Spring 2000 term, the School
suspended Appellants for the remainder of the semester. In the district court,
Appellants stated three claims for relief: (1) the School District intentionally
discriminated against them on the basis of race for participating in the February 8,
2000, fight (by suspending Appellants for the remainder of the school year); (2)
the School District used a neutral procedure or practice (the “Fight Policy”) that
had a disparate impact on them because they are African Americans; and (3) the
School District created and contributed to a racially hostile educational
environment prior to the February 8, 2000, fight.
The district court granted summary judgment for the School District
because (1) Appellants failed to raise a factual dispute regarding the intentional
discrimination allegation and (2) the Supreme Court’s holding in Alexander v.
Sandoval, 532 U.S. 275 (2001), established that Title VI prohibits only intentional
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discrimination, and, therefore, there is no private right of action under Title VI to
remedy non-intentional forms of discrimination such as disparate impact and
permitting the existence of a hostile environment.
Appellants raise three issues on appeal: (1) whether there is a genuine
issue of material fact regarding whether the School District intentionally
discriminated against Appellants on the basis of race for participating in the
February 8, 2000, fight; (2) whether the trial court erred in holding that
Appellants’ claims of disparate impact racial discrimination fail because of
reliance upon a federal regulation promulgated under § 602 of Title VI; and (3)
whether the trial court erred in determining that Title VI does not provide a
private right of action or remedy for a racially hostile educational environment.
We review a district court’s grant of summary judgment de novo. Reynolds
v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995). A
motion for summary judgment is granted when the record demonstrates that “there
is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The first two issues raised by Appellants stem from the February 8, 2000,
fight which resulted in Appellants’ suspension for the remainder of the Spring
2000 semester. Because this is a “discharge” case, we must first apply the
burden-shifting paradigm found in Texas Department of Community Affairs v.
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Burdine to determine whether Appellants can withstand summary judgment. 450
U.S. 248 (1981). 1 The basic allocation of burdens in a Title VI case is as follows:
First, the plaintiff has the burden of proving by the preponderance of
the evidence a prima facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant to articulate some legitimate, nondiscriminatory
reason for [the discharge]. Third, should the defendant carry this
burden, the plaintiff must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by
the defendant were not its true reasons, but were a pretext for
discrimination. . . . The ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.
Burdine, 450 U.S. 248, 252-53 (1981) (internal quotations and citations omitted);
see also Guardians Ass’n v. Civil Serv. Comm’n of New York, 463 U.S. 582
(1983) (courts often use Title VII proof scheme for Title VI claims).
Appellants set forth a prima facie case of discrimination. They alleged that
they were suspended after the February 8, 2000, fight while Caucasian students
who participated in the fight were not suspended.
The School District rebutted the presumption of discrimination by showing
that Appellants were the only students involved in the fight that had violated the
prohibition against fighting for the second time during the Spring 2000 semester.
Pursuant to the Fight Policy which states that “[f]ighting, forcing another student
1
Courts often use Title VII proof scheme for Title VI claims. Guardians
Ass’n v. Civil Serv. Comm’n of New York, 463 U.S. 582 (1983).
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to fight to defend himself, and physically attacking another student cannot be
tolerated,” students guilty of a second offense are expelled for the balance of the
current semester. Rec., Vol. I, at 57. Additionally, Appellee demonstrated that
the School has consistently suspended all students that were involved in two
fights over the course of the same semester as Appellants were in this case. Of
approximately ten students that have been involved in two or more fights in the
same semester over the past ten years, four were African American (including
Appellants) and six were Caucasian. All were suspended.
We agree with the district court that Appellees adequately demonstrated
that the decision to suspend Appellants was free from any discriminatory intent or
purpose. As such, Appellants were required to offer evidence that could support a
finding that the School’s reasons for suspending them were pretextual. Our
review of the record reveals that Appellants failed to raise a factual dispute
regarding this allegation. Therefore, we hold that the district court did not err in
finding no genuine issue of material fact regarding whether the School District
intentionally discriminated against Appellants on the basis of race for
participating in the February 8, 2000, fight.
We further hold that because Appellants’ disparate-impact claim stems
from their suspensions for participating in the February 8, 2000, fight, Appellants
did not meet their burden of “prov[ing] by a preponderance of the evidence that
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the legitimate reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.” Burdine, 450 U.S. 248, 253 (1981). Because we
hold that Appellants did not meet their burden, we need not address whether
Appellants’ disparate-impact claim is foreclosed by Sandoval.
We finally address whether the trial court erred in determining that Title VI
does not provide a private right of action or remedy for a racially hostile
educational environment. Because we are reviewing a grant of summary
judgment, we must construe all facts and reasonable inferences in favor of the
non-moving party. Reynolds, 69 F.3d at 1531.
The hostile environment claim centers on events which occurred prior to
the February 8, 2000, fight. The claim does not derive from the fight itself or the
suspensions resulting therefrom. In support of the hostile environment allegation,
Appellants claim that the School allowed the presence of offensive racial slurs,
epithets, swastikas, and the letters “KKK” inscribed in school furniture and in
notes placed in African American students’ lockers and notebooks. Additionally,
Appellants claim that Caucasian males were allowed to wear T-shirts adorned
with the confederate flag in violation of the dress code prohibiting offensive and
disruptive clothing. Appellants further claim that, even though the School was
aware of the hostile environment because of complaints by students and parents, it
did nothing to remedy the situation prior to the February 8, 2000, fight.
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Title VI protects the right to be free from discrimination under a program
that receives federal funding. 42 U.S.C. § 2000d. Title VI provides in part that
“[n]o person . . . shall, on the ground of race, color or national origin, be
excluded from participation in, be denied the benefits of, or subjected to
discrimination under any program or activity receiving Federal financial
assistance.” Id. Section 601 prohibits intentional discrimination based on race,
color, or national origin in covered programs and activities. Sandoval, 532 U.S.
at 276. Section 602 authorizes federal agencies to effectuate § 601 by issuing
rules, regulations, or orders of general applicability which are consistent with
achieving the objectives of the statute. Id. at 288-89.
Section 601 prohibits only instances of intentional discrimination. Id. at
281. The Supreme Court has held that Congress intended to provide a private
cause of action for individuals to enforce § 601. Id. at 280. Section 602,
however, does not provide a private right of action to enforce or challenge rules
or regulations promulgated under that section. Id. at 293. In Sandoval, the Court
stated that “[n]either as originally enacted nor as later amended does Title VI
display an intent to create a freestanding private right of action to enforce
regulations promulgated under § 602. We therefore hold that no such right of
action exists.” Id.
Since only § 601 provides a private right of action and since the only types
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of discrimination that § 601 prohibits are instances of intentional discrimination,
the question in this case is whether the allowance of a hostile environment can
ever be “intentional.” We are aware of no reported cases that have directly
addressed the viability of a racially hostile environment claim in Title VI cases in
light of Sandoval’s direction that there is only a private right of action for
intentional discrimination. Sandoval itself dealt with the alleged disparate impact
of Alabama’s English-only driver’s license examination. The Sandoval Court
specifically dealt with disparate-impact discrimination under § 602 of Title VI.
Id. The scope of that decision, therefore, must be read in light of the complete
lack of an intentional act. Pryor v. National Collegiate Athletic Ass’n, 288 F.3d
548 (3d Cir. 2002), a decision interpreting Sandoval, similarly dealt with a
facially neutral policy that allegedly had a disparate impact on certain minorities.
Because Sandoval and Pryor did not address claims of a hostile environment, they
provide limited guidance in our case.
Monteiro v. The Temple Union High School District, 158 F.3d 1022 (9th
Cir. 1998), a case heavily relied upon by Appellants, is also of limited relevance
because it was decided before the Supreme Court’s decision in Sandoval. In
Monteiro, the Ninth Circuit relied on regulations promulgated by the Department
of Education to hold that allegations of a hostile racial educational environment
stated a claim under § 602 of Title VI. Since Sandoval holds that there is “no
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private right of action to enforce regulations promulgated under § 602,” Monteiro
is no longer good law. That said, we do find some guidance in the principles and
reasoning underlying that decision. “[V]erbal harassment of a young child by
fellow students that is tolerated or condoned in any way by adult authority figures
is likely to have a far greater impact than similar behavior would on an adult.”
Id. at 1034 (quoting 59 Fed. Reg. 11449 (1994)). Additionally,
[i]t does not take an educational psychologist to conclude that being
referred to by one’s peers by the most noxious racial epithet in the
contemporary American lexicon, being shamed and humiliated on the
basis of one’s race, and having the school authorities ignore or reject
one’s complaints would adversely affect a Black child’s ability to
obtain the same benefit from schooling as her white counterparts.
Monteiro, 158 F.3d at 1034. We agree that “[a] school where this sort of conduct
occurs unchecked is utterly failing in its mandate to provide a nondiscriminatory
educational environment.” Id.
We must stress that this is not merely a case of disparate impact. If it were,
Sandoval might foreclose a private cause of action. But see Sandoval, 532 U.S. at
298 (Stevens, J., dissenting) (“to the extent that the majority denies relief to the
respondents merely because they neglected to mention 42 U.S.C. § 1983 in
framing their Title VI claim, this case is something of a sport. Litigants who in
the future wish to enforce the Title VI regulations against state actors in all
likelihood must only reference § 1983 to obtain relief; indeed, the plaintiffs in
this case (or other similarly situated individuals) presumably retain the option of
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re-challenging Alabama’s English-only policy in a complaint that invokes § 1983
even after today’s decision.”). In disparate impact cases, there is no intent to act
or not act at all. Disparate impact cases usually deal with facially neutral policies
and procedures that, when applied, have an unintentional discriminatory effect on
certain individuals based on their race, color, or national origin.
This is a case where students, and possibly teachers, intentionally acted in a
racially discriminatory way toward other students. 2 This is a case where the
principal was aware of the racial slurs, graffiti inscribed in school furniture, and
notes placed in students’ lockers and notebooks. This is a case where Caucasian
males were allowed to wear T-shirts adorned with the confederate flag, swastikas,
KKK symbols, and hangman nooses on their person and their vehicles. This is a
case where students and parents complained to the principal about the racist
environment and the principal did not attempt to remedy the situation. The
principal affirmatively chose to take no action. 3
Choice implicates intent. It is inapposite that a court could hold that
These are the facts as alleged by Appellants. Since we are at the summary
2
judgment stage, we must assume the facts as adequately alleged by the non-
moving party are true. The veracity of these alleged facts will be tested at trial.
3
The record suggests that the principal did not begin to take affirmative
steps to remedy the instances of discrimination until after the February 8, 2000,
fight. Rec., Vol. I, at 38, 104-06, 116, 135, 138, 140-43, 169. The complaint
clearly frames the hostile environment claim as the time period leading up to the
fight.
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maintenance of a hostile environment is never intentional. Such a broad holding
would permit school administrators to sit idly, or intentionally, by while horrible
acts of discrimination occurred on their grounds by and to students in their
charge. School administrators are not simply bystanders in the school. They are
the leaders of the educational environment. They set the standard for behavior.
They mete out discipline and consequences. They provide the system and rules by
which students are expected to follow. As stated by Superintendent Jim Stark in
his affidavit, “[m]aintaining order and a positive educational environment in a
school is essential.” Rec., Vol. I, at 64.
We are not necessarily holding that school administrators have a duty to
seek out and discover instances of discrimination or risk being held liable for
intentional discrimination under § 601. However, we are holding that when
administrators who have a duty to provide a nondiscriminatory educational
environment for their charges are made aware of egregious forms of intentional
discrimination and make the intentional choice to sit by and do nothing, they can
be held liable under § 601. Students and parents complained to the teachers and
the principal at the School regarding “shameful student-to-student conduct which,
if proven, could be fairly characterized as racist and prejudicial.” Rec., Vol. I, at
303. The school administrators did not necessarily create the hostile environment.
However, from the facts as alleged in the record, it appears that they might have
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facilitated the hostile environment or, in the least, permitted it to continue.
The key inquiry for the Sandoval Court was whether the discrimination was
intentional or unintentional. As our discussion reveals, the question of intent in a
hostile environment case is necessarily fact specific. We must ascertain whether
Appellee School and its administrators intentionally discriminated against
Appellants. It is impossible to discern at the summary judgment stage whether
the principal and administrators of Appellee School intentionally allowed and
nurtured the racially hostile environment to the boiling point of the February 8,
2000, fight. It is for the trier of fact to determine if the principal and
administrators truly had notice of the “shameful student-to-student conduct which,
if proven, could be fairly characterized as racist and prejudicial.” Rec., Vol. I, at
303. The question is whether the events and inaction in this case reached a point
where it can be fairly said that the principal and administrators acted
intentionally.
In summary, we hold that Appellants have set forth facts which, if believed,
would support a cause of action for intentional discrimination for facilitating and
maintaining a racially hostile educational environment prior to the February 8,
2000, fight. However, we also hold that the district court did not err in granting
summary judgment to Appellees on whether the School District intentionally
discriminated against Appellants on the basis of race by suspending them for
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participating in the February 8, 2000, fight and on Appellants’ disparate-impact
claim. 4
On remand, the district court is instructed to apply the test from Davis v.
Monroe County Board of Education where the Supreme Court determined that, in
certain circumstances, “deliberate indifference to known acts of [student-on-
student] harassment” can constitute “an intentional violation of Title IX, capable
of supporting a private damages action.” 526 U.S. 629, 633 (1999). At issue in
Davis was whether Title IX adequately notified recipients of federal funds that
they might be subject to liability on a deliberate indifference theory. The Court
held that notice was adequate. Id. at 634-45. The Court’s reasoning in Davis
guides our resolution of the instant case because Congress based Title IX on Title
VI; therefore, the Court’s analysis of what constitutes intentional sexual
discrimination under Title IX directly informs our analysis of what constitutes
intentional racial discrimination under Title VI (and vice versa). See Sandoval,
532 U.S. at 279-80; Cannon v. University of Chicago, 441 U.S. 677, 694-95
(1979).
Because deliberate indifference to known instances of student-on-student
racial harassment is a viable theory in a Title VI intentional discrimination suit,
4
However, assuming Appellants prevail on the merits, we take no position
at this time on whether the suspension, as a consequence of the alleged racially
hostile environment, can be taken into account in the assessment of damages.
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the Supreme Court’s articulation of the test for making an evidentiary showing to
prove such a theory is instructive. We have previously recognized the Supreme
Court’s holding in Davis and interpreted the four-part standard necessary to
sustain a Title IV deliberate indifference claim. See Murrell v. School Dist. No.
1, Denver, Colo., 186 F.3d 1238 (10th Cir. 1999). In Murrell, we articulated the
four-part test: “[T]he plaintiff must allege that the district (1) had actual
knowledge of, and (2) was deliberately indifferent to (3) harassment that was so
severe, pervasive and objectively offensive that it (4) deprived the victim of
access to the educational benefits or opportunities provided by the school.” Id. at
1246 (internal citation omitted and emphasis supplied). On remand, the district
court is directed to apply to the Plaintiffs’ Title VI deliberate indifference claims
the standard for a Title IX deliberate indifference claim as previously articulated
and applied by the Supreme Court in Davis and in this court’s sole application of
Davis’s deliberate indifference test in Murrell.
For the foregoing reasons, the decision of the district court is AFFIRMED
IN PART, REVERSED IN PART, and REMANDED for proceedings consistent
with this opinion.
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02-6212, Bryant v. Independent School District No. I-38 of Garvin County,
Oklahoma
TACHA, Chief Circuit Judge, concurring.
I concur in the judgment. This case presents the question of whether a
principal’s deliberate indifference to known incidents of student-on-student racial
harassment can constitute intentional discrimination under § 601 of Title VI and
thereby ground a private suit for damages against a school district receiving
federal funds. I agree with the majority that, in certain circumstances, it can. I
also agree that plaintiffs have alleged facts sufficient to – narrowly – survive
summary judgment.
I write separately for two reasons. First, the district court erred in its
application of Sandoval to the plaintiffs’ theory of liability, which relied upon
evaluative criteria set forth in a regulation promulgated pursuant to § 602.
Because I think it important to clarify the relationship between such regulations
and the private right of action under § 601, I begin with a brief discussion of
Sandoval and its interaction with the Court’s prior holding in Davis. Second, I
write separately to emphasize to the district court that Davis painstakingly limits
the range of facts that, if proved, will support a finding of liability and an award
of damages under this theory.
A. Section § 601 Creates a Private Right of Action to Enforce Title VI’s
Prohibition on Intentional Discrimination.
In Alexander v. Sandoval, the Supreme Court reaffirmed that it is “beyond
dispute that private individuals may sue to enforce § 601” of Title VI and obtain
both damages and injunctive relief. 532 U.S. 275, 280 (2001). “[I]t is similarly
beyond dispute . . . that § 601 prohibits only intentional discrimination.” Id. The
Court went on to hold that, in contrast, § 602, which authorizes federal agencies
“to effectuate the provisions of [§ 601] . . . by issuing rules, regulations, or orders
of general applicability,” neither expressly nor impliedly creates a freestanding
private right of action to enforce such regulations. Id. at 288-93 (quoting 42
U.S.C. § 2000d-1). That is not to say, however, that regulations promulgated
under § 602 may never invoke the private right of action that exists to enforce
§ 601. Rather, the Court merely held that § 601, which only prohibits intentional
discrimination, determines the availability of a private right of action:
Language in a regulation may invoke a private right of action that
Congress through statutory text created, but it may not create a right
that Congress has not. Thus, when a statute has provided a general
authorization for private enforcement of regulations, it may perhaps
be correct that the intent displayed in each regulation can determine
whether or not it is privately enforceable. But it is most certainly
incorrect to say that language in a regulation can conjure up a private
cause of action that has not been authorized by Congress. Agencies
may play the sorcerer’s apprentice but not the sorcerer himself.
Id. at 291 (internal citations and quotation marks omitted).
In this case, because plaintiffs’ hostile environment claim “rel[ied] heavily
upon evaluative criteria established by a Department of Education regulation
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promulgated pursuant to § 602,” 1 the district court concluded that
Plaintiffs’ claim that the school district has permitted the existence
of a racially hostile environment in violation of Title VI must . . .
fail. Since this claim is for non-intentional discrimination under title
VI, which is permissible under § 601, by necessity it must arise under
§ 602. Therefore, it may not be remedied by a private right of action.
Dist. Ct. Order at 7-8. The district court correctly determined that § 601 – and
only § 601 – creates a private right of action, and that this action may enforce
only § 601’s prohibition on intentional discrimination. In granting the school
district’s motion for summary judgment on these grounds, however, the district
court erred in two respects. First, it was error to hold that plaintiffs’ reliance on
the evaluative criteria set forth in the regulation mandated summary judgment in
favor of the school district. As the foregoing discussion of Sandoval
demonstrates, language in a regulation promulgated under § 602 may invoke the
private right of action created by § 601. Thus, the question in all cases remains
whether a plaintiff’s complaint states a cognizable claim for intentional
discrimination, not whether it relies on a § 602 regulation for an articulation of
the circumstantial evidence the plaintiff offers to support her private action.
Second, as discussed infra, the district court erred in determining that deliberate
indifference to a racially hostile environment could not constitute intentional
1
Racial Incidents and Harassment Against Students at Educational
Institutions: Investigative Guidance, 59 F ED . R EG . 11448 (March 10, 1994).
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discrimination under § 601.
B. “Deliberate Indifference” to Known Acts of Discrimination Can
Constitute Intentional Discrimination Under Title VI.
While Sandoval sets forth the test for determining whether a statute
implies a particular private right of action, we are not called upon in this case to
consider – as a matter of first impression – whether Title VI can ever support a
private right of action for deliberate indifference to a racially hostile
environment.
Two years before Sandoval, in Davis v. Monroe County Board of
Education, the Supreme Court determined that, in certain circumstances,
“deliberate indifference to known acts of [student-on-student] harassment” can
constitute “an intentional violation of Title IX, capable of supporting a private
damages action.” 2 526 U.S. 629, 633 (1999). See also Murrell v. School Dist.
2
At issue in Davis was whether Title IX adequately notified recipients of
federal funds that they might be subject to liability on a deliberate indifference
theory.
[P]rivate damages actions are available only where recipients of
federal funding had adequate notice that they could be liable for the
conduct at issue. When Congress acts pursuant to its spending
power, it generates legislation much in the nature of a contract: in
return for federal funds, the States agree to comply with federally
imposed conditions. In interpreting language in spending legislation,
we thus insist that Congress speak with a clear voice, recognizing
that there can, of course, be no knowing acceptance of the terms of
(continued...)
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No. 1, Denver, Colo., 186 F.3d 1238, 1245-46 (10th Cir. 1999) (applying Davis to
hold that deliberate indifference to known instances of sexual harassment can
support liability under Title IX). The Court’s reasoning in Davis, and ours in
Murrell, guide our resolution of the instant case because, as the Court has pointed
out more than once, Congress based Title IX on Title VI. Thus, the Court’s
analysis of what constitutes intentional sexual discrimination under Title IX
directly informs our analysis of what constitutes intentional racial discrimination
under Title VI (and vice versa). See Sandoval, 532 U.S. at 279-80; Cannon v.
Univ. of Chicago, 441 U.S. 677, 694-95 (1979) (“Title IX was patterned after
Title VI . . . . Except for the substitution of the word ‘sex’ in Title IX to replace
the words ‘race, color, or national origin’ in Title VI, the two statutes use
identical language to describe the benefitted class.”); see also Jackson v.
Birmingham Bd. of Educ., 309 F.3d 1333, 1339 (11th Cir. 2002) (“Because we . . .
read Titles VI and IX in pari materia, Sandoval’s interpretation of Title VI
powerfully informs our reading of Title IX.”). Because deliberate indifference to
known instances of student-on-student racial harassment is a viable theory in a
2
(...continued)
the putative contract if a State is unaware of the conditions imposed
by the legislation or is unable to ascertain what is expected of it.
Davis, 526 U.S. at 640 (quoting Pennhurst State School and Hosp. v. Halderman,
451 U.S. 1, 17 (1981)) (internal citations, alterations, and quotation marks
omitted). The Court held that notice was adequate. Id. at 634-45.
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Title VI intentional discrimination suit, I consider it important to discuss the
standards that guide our disposition of the instant motion and which, in my
judgment, must guide the district court’s inquiry on remand. 3
C. The Test: (1) Did Student-on-Student Conduct at Plaintiffs’ School
Constitute a Racially Hostile Educational Environment, to Which (2)
Defendant Was Deliberately Indifferent?
Plaintiffs in this case allege that Principal Jackson was deliberately
indifferent to known and pervasive acts of student-on-student racial harassment.
Properly phrased, then, the question before us – which we have answered in the
affirmative – is whether, in response to defendants’ Rule 56 motion, plaintiffs
have pointed to genuine issues of material fact as to the existence of a racially
hostile environment at their school, to which Principal Jackson was deliberately
indifferent. In answering this question, the Supreme Court’s analysis in Davis
determines what facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (when considering whether a genuine issue of material fact
exists, “the substantive law will identify which facts are material”).
3
For understandable reasons, defendant relies on Pryor v. NCAA for the
proposition that “applying [a] ‘deliberately indifferent’ standard to a Title VI
purposeful-discrimination case” would “eviscerate the Supreme Court’s ruling in
[Sandoval]” and “turn [Sandoval] on its head.” 288 F.3d 548, 568 (3d Cir. 2002).
Because I find the Pryor panel’s reasoning irreconcilable with Davis, defendant’s
reliance is, in my judgment, misplaced.
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In Murrell, we interpreted Davis as setting forth four factors a plaintiff
must allege to state a Title IX claim against a school district under the deliberate
indifference theory:
She must allege that the district (1) had actual knowledge of, and (2)
was deliberately indifferent to (3) harassment that was so severe,
pervasive and objectively offensive that it (4) deprived the victim of
access to the educational benefits or opportunities provided by the
school. This limited rule imposes liability only on those school
districts that choose to ignore Title IX’s mandate for equal
educational opportunities.
Murrell, 186 F.3d at 1246.
In applying this test to plaintiffs’ hostile environment claim in this case, the
district court on remand must remain mindful of the Court’s guidance as to when
harassment constitutes a hostile environment and when mere inaction constitutes
deliberate indifference. As Murrell indicates, the standard set forth by the Davis
Court, which must guide the district court’s inquiry on remand into whether
defendant’s alleged failure to act subjected plaintiffs to a “racially hostile
environment,” is quite high:
[F]unding recipients are properly held liable in damages only where
they are deliberately indifferent to [racial] harassment, of which
they have actual knowledge, that is so severe, pervasive, and
objectively offensive that it can be said to deprive the victims of
access to the educational opportunities or benefits provided by the
school.
Id. at 650 (emphasis added). The following principles, articulated by the Davis
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court, must guide the district court’s inquiry into whether Principal Jackson’s
alleged failure to act rose to the level of “deliberate indifference” and thereby
constituted intentional discrimination under § 601:
[F]unding recipients are deemed “deliberately indifferent” to acts of
student-on-student harassment only where the recipient’s response to
the harassment or lack thereof is clearly unreasonable in light of the
known circumstances. . . . [T]he recipient must merely respond to
known peer harassment in a manner that is not clearly unreasonable.
This is not a mere “reasonableness” standard. . . . In an appropriate
case, there is no reason why courts, on a motion to dismiss, for
summary judgment, or for a directed verdict, could not identify a
response as not “clearly unreasonable” as a matter of law.
Id. at 648-49 (emphasis added).
As the foregoing language demonstrates, the Court’s discussion – of both
the elements constituting a hostile environment and the degree of egregiousness
necessary to elevate inaction to “deliberate indifference” – is replete with
qualifications, caveats, and modifiers, to which the district court must remain
attentive. 4 As the dissent in Davis pointed out, “[t]he string of adjectives the
4
See id. at 644-53. In formulating its standards for “deliberate
indifference” and “hostile environment,” the Court noted, inter alia, the following
factors limiting the circumstances in which a funding recipient may be held liable
on this theory. First, the statutory language and the deliberately indifferent
standard combine to “narrowly circumscribe” the set of parties whose behavior
can subject the funding recipient to liability. For the deliberate indifference
theory to be available under Title IX, the funding recipient must have “some
control over the alleged harassment” and the “authority to take remedial action.”
Id. at 644 (citations omitted). Second, the language of the statute, combined with
the requirement that funding recipients have notice of their potential liability, also
(continued...)
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majority attaches to the word ‘harassment’ [does not] narrow the class of conduct
that can trigger liability” in such a way as to make resolution of such cases
simple. 5 I nonetheless discern in the number and complexion of those modifiers
at least one clear message: the compass of facts supporting liability under the
deliberate indifference theory is narrow and heavily qualified. See id. at 644-53.
D. Conclusion
As I have pointed out, we remand because genuine issues of material fact
exist as to whether pervasive student-on-student racial harassment at the school
gave rise to a hostile educational environment and whether the remedial action, or
lack thereof, taken by Principal Jackson constituted deliberate indifference. Maj.
4
(...continued)
“cabins the range of misconduct that the statute proscribes. . . . [A funding
recipient’s] deliberate indifference must, at a minimum, ‘cause [students] to
undergo’ harassment or ‘make them liable or vulnerable’ to it.” Id. at 644-45
(citations omitted) (emphasis added). Third, because the harassment must occur
“‘under’ ‘the operations of’ [the] funding recipient, the harassment must take
place in a context subject to the school district’s control.” Id. at 645 (internal
citations omitted) (emphasis added). Fourth, the Court also expressed concern
that school administrators should “continue to enjoy the flexibility they require”
to perform their jobs. Id. at 648.
A determination of whether particular conduct satisfies these factors
“‘depends on a constellation of surrounding circumstances, expectations, and
relationships.’” Id. at 651 (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 82 (1998)). Finally, the Court cautioned that “[p]eer harassment, in
particular, is less likely to satisfy these requirements than is teacher-student
harassment.” Id. at 653.
5
Davis, 526 U.S. at 678 (Stevens, J., dissenting).
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op., supra at 10 & n.3 (citing the record). In particular, there is a question as to
whether Principal Jackson’s response prior to the February 8, 2000, fight met the
standard set forth in Davis. 6 Thus, on remand, the district court must determine
whether Principal Jackson’s actions before the fight were “clearly unreasonable”
in light of known circumstances, such that they subjected plaintiffs to an
educational environment that was “so severe, pervasive, and objectively offensive
that it can be said to [have] deprive[d] the victims of access to the educational
opportunities or benefits provided by the school.”
Deanell Reece Tacha,
Chief Circuit Judge
6
Plaintiffs concede that race relations after the fight have improved
significantly as a result of Principal Jackson’s intervention.
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