Doe, Jane v. University IL

In the
United States Court of Appeals
For the Seventh Circuit

No. 96-3511

JANE DOE, a minor, JOHN DOE, individually and as
father and next friend of Jane Doe, and JANET DOE,
individually and as mother and next friend of
Jane Doe,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervening Appellee,

v.

UNIVERSITY OF ILLINOIS, a public corporation,

Defendant-Appellant.

No. 96-4148

JANE DOE, a minor, JOHN DOE, individually and as
father and next friend of Jane Doe, and JANET DOE,
individually and as mother and next friend of
Jane Doe,

Plaintiffs-Appellants,

v.

UNIVERSITY OF ILLINOIS, a public corporation,

Defendant-Appellee.

Appeals from the United States District Court
for the Central District of Illinois.
No. 96-1129--Michael M. Mihm, Chief Judge.

ARGUED SEPTEMBER 3, 1997--DECIDED MARCH 3, 1998

Before CUMMINGS, COFFEY and EVANS, Circuit Judges.*

CUMMINGS, Circuit Judge. Appellee/cross-appellant
Jane Doe was a student at University High School in
Urbana, Illinois./1 Although University High is a
public school, it is affiliated with the defendant
University of Illinois, which has responsibility
for overseeing the school’s administration. During
a period from January 1993 through early May 1994,
while a student at University High, Jane Doe was
the victim of an ongoing campaign of verbal and
physical sexual harassment perpetrated by a group
of male students at the school. Doe and her parents
complained on numerous occasions to officials of
both the high school (including two successive
school Principals, a counselor, the Assistant
Director, and the person appointed as intake
officer for sexual harassment complaints) and the
University of Illinois (including two Vice
Chancellors, two University police officials, the
Ombudsperson, and the liaison person between the
University and the high school), but those
officials allegedly did not do nearly enough to
combat the harassment.

Because the sufficiency of Doe’s allegations of
sexual harassment is not at issue on this appeal,
it is not necessary to describe in detail the
campaign of harassment and intimidation to which
she was subjected by the self-styled "posse" of
male students. It is enough to note here that
according to the Magistrate Judge’s Report and
Recommendations, the male students’ conduct
included unwanted touching, epithets, and the
deliberate exposure of one student’s genitals in
front of Doe. Although school officials did suspend
two of the male students for ten days and transfer
one student out of Doe’s biology class, Doe claims
that the school and the University took little or
no meaningful action to punish the sexual
harassment or to prevent further occurrences.
Indeed, the complaint alleges that some
administrators suggested to Doe that she herself
was to blame for the harassment, and that it was
she who ought to adjust her behavior in order to
make it stop. On one occasion, University High’s
Assistant Director told Doe and two of her friends
to start acting like "normal females" and scolded
them for making allegations of harassment that
might injure some of the male students’ futures.
Ultimately, Jane Doe’s parents removed her from the
school as a result of the campaign of harassment
and sent her to a private high school in another
state.

On May 24, 1995, Doe and her parents filed this
suit against the University of Illinois and various
individual officials of University High and the
University of Illinois. They alleged violations of
20 U.S.C. secs. 1681 et seq. (Title IX) and of
42 U.S.C. sec. 1983, and sought damages under the
Illinois Family Expense Statute, 750 ILCS 65/15.
After the plaintiffs voluntarily dismissed certain
claims, Magistrate Judge David G. Bernthal
entertained the defendants’ motion to dismiss all
of the remaining claims pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). In a
lengthy Report and Recommendations, he recommended
that all of the remaining claims be dismissed. He
further recommended that Jane Doe be granted leave
to refile her claim against the University of
Illinois for intentional sexual discrimination in
violation of Title IX, but that all other claims be
dismissed with prejudice.
 In an order dated March 29, 1996, Chief Judge
Mihm adopted the Magistrate Judge’s Report and
Recommendations and dismissed all claims, allowing
Doe leave to refile her individual Title IX claim
against the University.

On April 12, 1996, the University requested that
the district court reconsider its decision to allow
Doe to replead the Title IX claim, in light of the
United States Supreme Court’s decision in Seminole
Tribe of Florida v. Florida, 116 S. Ct. 1114, which
had been made public on March 27, 1996. The
University’s motion for reconsideration asserted
for the first time/2 that the Title IX claim
against the University was barred by the Eleventh
Amendment to the United States Constitution,
because Title IX did not validly abrogate the
States’ (and thus the University’s) sovereign
immunity from suit. The district court denied the
University’s motion for reconsideration on
September 25, 1996, holding that both Title IX and
the statute that expressly subjected States to suit
for violations of Title IX were enacted at least in
part pursuant to Congress’ powers under Section 5
of the Fourteenth Amendment, and therefore that
Congress validly abrogated the States’ sovereign
immunity with respect to Title IX suits.

The University appeals the district court’s
rejection of its Eleventh Amendment defense.
Plaintiff Jane Doe also appeals the court’s
dismissal of her Title IX claim against the
University pursuant to Federal Rule of Civil
Procedure 12(b)(6). On Doe’s motion, the two
appeals were consolidated. For the reasons set
forth below, this Court affirms the district
court’s holding with respect to the University’s
Eleventh Amendment defense and reverses the court’s
holding with respect to Jane Doe’s Title IX claim.

I. THE ELEVENTH AMENDMENT
IMMUNITY ISSUE

The Eleventh Amendment provides, "The Judicial
power of the United States shall not be construed
to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by
Citizens of another State, or by Citizens or
Subjects of any Foreign State." The University
argues that it is immune from federal court suits
under Title IX because it has not consented to such
suits, and Congress has not validly abrogated its
Eleventh Amendment immunity in the context of Title
IX. The district court disagreed, holding in its
denial of the University’s motion for
reconsideration that Congress, in enacting Title IX
and rendering it enforceable against the States
(via the Equal Rights Remedies Equalization Act
("Equalization Act"), 42 U.S.C. sec. 2000d-7), had
unequivocally and validly abrogated the States’
sovereign immunity with regard to suits under Title
IX./3

A. The Eleventh Amendment’s Application to Federal
Question Suits

Jane Doe argues in response to the University’s
immunity claim that the Eleventh Amendment does not
give States immunity from federal question suits.
Doe observes that the explicit text of the
Amendment mentions only suits brought against a
State by citizens of another State or of a foreign
country. Based on this literal reading of the
Amendment and a number of dissenting and concurring
Supreme Court opinions, Doe urges this Court to
hold that Eleventh Amendment immunity is not
present in this case, which involves a federal
question suit by a citizen of Illinois against the
University of Illinois. Even were this Court
inclined so to hold, however, it would not be free
to do so. In Seminole Tribe of Florida v. Florida,
116 S. Ct. 1114, 1122, the Supreme Court reiterated
its view that the Eleventh Amendment extends beyond
its literal language to give the States sovereign
immunity against all suits by individuals for
damages. See id. at 1122 (citing Hans v. Louisiana,
134 U.S. 1); but see Seminole Tribe, 116 S. Ct. at
1137 (Stevens, J., dissenting) (arguing that Hans
did not hold suits by citizens of the State to be
sued barred by the Eleventh Amendment); id. at 1146
(Souter, J., dissenting) (stating that Hans was
incorrectly decided and that the Eleventh Amendment
bars only diversity suits against States). Doe’s
contention that the Eleventh Amendment does not
apply in this case is therefore without merit.

B. Abrogation of Eleventh Amendment Immunity

Congress may abrogate States’ Eleventh Amendment
immunity if it both unequivocally expresses its
intent to do so and acts pursuant to a valid
exercise of power. Seminole Tribe, 116 S. Ct. at
1123. The University concedes, as it must, that
Title IX and the Equalization Act, read together,
unequivocally state Congress’ intent to abrogate
the States’ Eleventh Amendment immunity, so the
dispute centers around whether Congress acted
pursuant to a valid exercise of power.

In Seminole Tribe, the Supreme Court held that
the Indian Commerce Clause of the Constitution
(art. I, sec. 8, cl. 3) does not give Congress the
power to abrogate the States’ Eleventh Amendment
immunity. Id. at 1131. More broadly, the Court
expressly overruled its prior decision that the
Interstate Commerce Clause (art. I, sec. 8, cl. 3)
did give Congress the power to abrogate. Id. at
1128 (overruling Pennsylvania v. Union Gas Co., 491
U.S. 1). The Court stated that the powers granted
to Congress in Article I of the Constitution could
not be used to expand federal court jurisdiction
under Article III at the expense of the States’
Eleventh Amendment immunity. Id. at 1132. The Court
reaffirmed, however, the principle that Congress
may abrogate the States’ Eleventh Amendment
immunity when it acts pursuant to Section 5 of the
Fourteenth Amendment./4 Id. at 1125, 1128 (citing
Fitzpatrick v. Bitzer, 427 U.S. 445). Because the
Fourteenth Amendment was "adopted well after the
adoption of the Eleventh Amendment and the
ratification of the Constitution," it "operated to
alter the preexisting balance between state and
federal power achieved by Article III and the
Eleventh Amendment." Id. at 1128. When acting
pursuant to its powers under Section 5 of the
Fourteenth Amendment, therefore, Congress can
abrogate the States’ immunity from suit.

Neither the Supreme Court nor this Court has
resolved the question of whether Title IX was
enacted pursuant to Congress’ Section 5 powers. See
Franklin v. Gwinnett County Pub. Schs., 503 U.S.
60, 75 n.8 (declining to decide "which power
Congress utilized in enacting Title IX"); Smith v.
Metropolitan Sch. Dist. Perry Township, 128 F.3d
1014, 1028 (7th Cir. 1997) (holding that "Title IX
was passed pursuant to Congress’ Spending Clause
power" but not addressing possible alternative
basis in Section 5). The district court in the
present case held that Title IX, while it is
undoubtedly an exercise of Congress’ Article I
Spending Clause power, was also enacted pursuant to
Section 5 of the Fourteenth Amendment. The court
further held that the Equalization Act, which
expressly made the States subject to suits to
enforce Title IX, "was clearly enacted pursuant to
the Fourteenth Amendment." Relying upon this
Court’s decision in EEOC v. Elrod, 674 F.2d 601,
608 (7th Cir. 1982), the district court stated the
standard for determining whether a statute was
enacted pursuant to the Fourteenth Amendment as
"whether the objectives of the legislation are
within Congress’ power under the amendment." The
court then concluded that "since the objective of
Title IX is to prevent discrimination based on sex
in federally funded programs and preventing
discrimination is central to Congress’ power under
the Fourteenth Amendment, . . . Title IX was also
enacted pursuant to sec. 5 of the Fourteenth
Amendment."

The University of Illinois asserts here that
Seminole Tribe and other Supreme Court decisions
compel this Court to overrule Elrod and hold that
the proper inquiry is not whether the statute at
issue is within Congress’ power under the
Fourteenth Amendment, but rather whether Congress
in fact enacted the statute pursuant to that power.
Because neither Title IX nor its legislative
history unambiguously states that Congress intended
to act pursuant to Section 5 of the Fourteenth
Amendment,/5 the University reads the Supreme
Court’s holdings in Pennhurst State School &
Hospital v. Halderman, 451 U.S. 1, and Gregory v.
Ashcroft, 501 U.S. 452, as forbidding courts from
inferring such an intent.

The University quotes at length from Gregory
interpreting Pennhurst to hold that courts "should
not quickly attribute to Congress an unstated
intent to act under its authority to enforce the
Fourteenth Amendment." Gregory, 501 U.S. at 469.
The University argues that this principle from
Pennhurst means that this Court should only find
that Congress has enacted legislation pursuant to
Section 5 when Congress has stated unambiguously
that it intended to do so. This Court held in
Elrod, however, that Pennhurst was inapposite to
the inquiry into a statute’s constitutional
grounding in Section 5, primarily because it was a
case involving statutory construction, rather than
"congressional authority to legislate." Elrod, 674
F.2d at 608 n.8./6 In other words, the question in
Pennhurst was whether Congress intended a
particular result, regardless of the constitutional
grant of power under which it acted. In the present
inquiry, by contrast, the intended result (of
subjecting States to suit for violations of Title
IX’s substantive provisions) is clear, and the
grant of power under which Congress acted is at
issue.

Thus the University’s reliance upon the Gregory
Court’s reading of Pennhurst to the effect that,
"[b]ecause Congress nowhere stated its intent to
impose mandatory obligations on the States under
its sec. 5 powers, [the Court] concluded that
Congress did not do so," is misplaced. What the
Pennhurst Court held that Congress did not do was
"impose mandatory obligations," not "[act] under
its sec. 5 powers." The Supreme Court reached a
similar conclusion in EEOC v. Wyoming, 460 U.S.
226, 243 n.18, where it held that Pennhurst was
irrelevant "to the question of whether . . .
Congress acted pursuant to its powers under sec.
5," because, in terms of the substantive
obligations imposed by the statute, "there [was] no
doubt what the intent of Congress was."

The University identifies in the Supreme Court’s
decisions an "increasingly strict view of
congressional waivers of sovereign immunity." In
support of this proposition, it cites Pennhurst,
Gregory, and Seminole Tribe. The University’s
reliance upon the former two cases is curious,
given that neither decided an issue of sovereign
immunity. It is, on the other hand, clear that
Seminole Tribe contracted Congress’ power to
abrogate the States’ Eleventh Amendment immunity.
Neither that case nor any other, however, compels
this Court to abandon the analysis employed in
Elrod. Indeed, other courts of appeals, in
decisions reached after Seminole Tribe, have
adhered to an analysis very similar to that in
Elrod for determining whether Congress acted
pursuant to its Section 5 powers.

In Crawford v. Davis, 109 F.3d 1281 (8th Cir.
1997), the Eighth Circuit explicitly held, as this
Court does today, that Title IX was enacted
pursuant to Section 5. Id. at 1283. In so deciding,
the court articulated its inquiry as "whether
Congress could have enacted the legislation at
issue pursuant to a constitutional provision
granting it the power to abrogate." Id. The court
went on to state, "As long as Congress had such
authority as an objective matter, whether it also
had the specific intent to legislate pursuant to
that authority is irrelevant." Id.

Similarly, the Sixth Circuit recently reaffirmed
an earlier decision that the Equal Pay Act was
enacted pursuant to Section 5. Timmer v. Michigan
Dep’t of Commerce, 104 F.3d 833, 838-839 (6th Cir.
1997) (citing Marshall v. Owensboro-Daviess County
Hosp., 581 F.2d 116, 119 (6th Cir. 1978)). The
court recognized that Congress made no explicit
statement of the constitutional basis for its
legislation, but held that "[i]t was not necessary
for Congress to expressly rely on sec. 5 in
exercising its power because such power clearly
existed." Id. at 839 (citation omitted). The Sixth
Circuit in Timmer confronted the same arguments the
University raises in this case--that some
combination of the Supreme Court holdings in
Pennhurst and Seminole Tribe required a "clear
statement" from Congress before a court could find
that Congress acted pursuant to Section 5. The
Sixth Circuit rejected those arguments, and this
Court agrees with both its reasoning and its
conclusion. See also Clark v. California, 123 F.3d
1267, 1270 (9th Cir. 1997) (stating that for
Eleventh Amendment abrogation purposes, "a statute
is ’appropriate legislation’ to enforce the Equal
Protection Clause if the statute ’may be regarded
as an enactment to enforce the Equal Protection
Clause, [if] it is plainly adapted to that end and
[if] it is not prohibited by but is consistent with
the letter and spirit of the constitution’")
(quoting Katzenbach v. Morgan, 384 U.S. 641, 651).

Aside from the decisions of other circuits
utilizing an approach very similar to that in
Elrod, there is nothing odd in the proposition that
Congress may have acted pursuant to more than one
of its sources of power in enacting a single piece
of legislation. In Elrod itself, this Court
observed that the statute at issue there, the Age
Discrimination in Employment Act, "follows the
familiar pattern of contemporary civil rights acts
in grounding prohibitions against private parties
in the Commerce Clause, while reaching government
conduct by the more direct route of the Fourteenth
Amendment." Elrod, 674 F.2d at 604; see also
Fullilove v. Klutznick, 448 U.S. 448, 473 (finding
that Congress used an "amalgam" of its powers in
enacting minority business enterprise provision of
Public Works Employment Act of 1977), overruled on
other grounds by Adarand Constructors, Inc. v.
Pena, 515 U.S. 200. It is equally sensible that
Congress, in using federal educational funds as the
core of Title IX, should use its Spending Clause
powers to reach private actors and its Fourteenth
Amendment powers to reach the States.

This conclusion answers the argument of the Fifth
Circuit that Title IX’s use of federal funds as a
lever to insure compliance with its anti-
discrimination objectives indicates that Congress
could not have been acting under its Fourteenth
Amendment powers. See Rowinsky v. Bryan Indep. Sch.
Dist., 80 F.3d 1006, 1012 n.14 (5th Cir. 1996)
(noting that imposing Title IX liability on a
school that receives federal but not State funds
would "push the limits of the Fourteenth
Amendment"), certiorari denied, 117 S. Ct. 165. A
chronological perspective reinforces this view. It
is not at all unlikely that Congress, perceiving
the possible limits upon its Fourteenth Amendment
power over non-State actors, initially chose to use
its Spending Clause power to bind such actors to
the requirements of Title IX. When Congress
subsequently chose, via the Equalization Act, to
make those same strictures more readily enforceable
against State-run schools, it used the already
existing federal funds framework of Title IX.
Congress’ consistent use of federal funds as the
"trigger" for Title IX coverage, however, does not
mean that it did not also intend to act pursuant to
its acknowledged powers over State actors granted
by Section 5 of the Fourteenth Amendment. The Fifth
Circuit’s approach would turn a purely efficient
decision to utilize an existing statutory scheme
into a declaration that the Fourteenth Amendment
was not involved in an enactment that, at least as
it applies against the States, is squarely within
the purview of that Amendment.

This Court, therefore, reaffirms the analysis we
used in Elrod and applies it here. The appropriate
question is, were "the objectives of [Title IX] .
. . within Congress’ power under the [Fourteenth]
amendment?" See Elrod, 674 F.2d at 608. The answer
is, quite plainly, that they were. As the court
below noted (quoting Cannon v. University of
Chicago, 441 U.S. 677, 678), protecting Americans
against "invidious discrimination of any sort,
including that on the basis of sex," is a central
function of the federal government. Prohibiting
"arbitrary, discriminatory government conduct . .
. is the very essence of the guarantee of ’equal
protection of the laws’ of the Fourteenth
Amendment." Elrod, 674 F.2d at 604. Title IX
prohibits such discriminatory government conduct on
the basis of sex when it occurs in the context of
State-run, federally funded educational programs
and institutions. This Court holds, therefore, that
Congress enacted Title IX and extended it to the
States, at least in part, as a valid exercise of
its powers under Section 5 of the Fourteenth
Amendment. For that reason, Congress validly
abrogated the States’ Eleventh Amendment immunity
from suit when it passed the Equalization Act
expressly making States subject to suits to enforce
Title IX.

In light of the foregoing conclusion that
Congress validly abrogated the States’ immunity, it
is unnecessary to resolve Jane Doe’s alternative
claim that the University affirmatively waived its
Eleventh Amendment immunity by choosing to accept
federal funds under Title IX.

II. THE TITLE IX ISSUE

A. Standard for Reviewing Motion to Dismiss

In reviewing a grant of dismissal pursuant to
Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be
granted, this Court must take as true all factual
allegations in the plaintiff’s pleadings and draw
all reasonable inferences in her favor. Antonelli
v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995).
Such a motion may be granted only if it appears
beyond a doubt from the pleadings that the
plaintiff is unable to prove any set of facts that
would entitle her to relief. Moss v. Healthcare
Compare Corp., 75 F.3d 276, 279 (7th Cir. 1996). We
review the district court’s grant of a motion to
dismiss de novo. Sidney S. Arst Co. v. Pipefitters
Welfare Educ. Fund, 25 F.3d 417, 419 (7th Cir.
1994).

B. Title IX Background

Title IX provides that "[n]o person in the United
States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under any education
program or activity receiving Federal financial
assistance." 20 U.S.C. sec. 1681. As noted in Part
I above, the Civil Rights Remedies Equalization
Act, 42 U.S.C. sec. 2000d-7(a)(1), expressly made
the States subject to suits to enforce the
guarantees of Title IX.

It is well settled that sexual harassment of a
student in a federally funded educational program
or activity, if it is perpetrated by a teacher or
other employee of the funding recipient, can render
the recipient liable for damages under Title IX.
See Franklin v. Gwinnett County Pub. Schs., 503
U.S. 60, 63-64, 76; Smith v. Metropolitan Sch.
Dist. Perry Township, 128 F.3d 1014, 1021 (7th Cir.
1997). What is less clear, and what is before this
Court today, is whether a school (or other
educational fund recipient) can be liable for
failing to take prompt, appropriate action to
remedy known sexual harassment of one student by
other students. Three courts of appeals have
considered the question, with two finding no
liability, see Davis v. Monroe County Bd. of Educ.,
120 F.3d 1390 (11th Cir. 1997) (en banc); Rowinsky
v. Bryan Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.
1996), certiorari denied, 117 S. Ct. 165, and one
finding such liability if the school knew or should
have known that the harassment was occurring, see
Brzonkala v. Virginia Polytechnic Inst. & State
Univ., 132 F.3d 949 (4th Cir. 1997). Further, a
number of district courts have found such liability
to exist under Title IX. See, e.g., Doe v.
Londonderry Sch. Dist., 970 F. Supp. 64, 74 (D.N.H.
1997); Nicole M. v. Martinez Unified Sch. Dist.,
964 F. Supp. 1369, 1377 (N.D. Cal. 1997); Bruneau
v. South Kortright Cent. Sch. Dist., 935 F. Supp.
162, 173 (N.D.N.Y. 1996); Wright v. Mason City
Community Sch. Dist., 940 F. Supp. 1412, 1419-1420
(N.D. Iowa 1996); Bosley v. Kearney R-1 Sch. Dist.,
904 F. Supp. 1006, 1023 (W.D. Mo. 1995).

The district court in the present case, ruling
without consideration of any court of appeals
decisions on the issue,/7 held that the University
could be liable for failing to take action to
address Doe’s harassment, but only if Doe alleged
(as the court believed she had not done) that
school and University officials’ failure to respond
"resulted from the University’s sexual
discrimination against her." In other words, the
court held that the University’s allegedly
intentional failure to act in the face of knowledge
of the sexual harassment was not sufficient to
sustain Title IX liability; in the court’s view,
Doe needed to allege that the failure arose out of
an intent by the University to discriminate on the
basis of sex.

For reasons set forth below, this Court holds
that a Title IX fund recipient may be held liable
for its failure to take prompt, appropriate action
in response to student-on-student sexual harassment
that takes place while the students are involved in
school activities or otherwise under the
supervision of school employees, provided the
recipient’s responsible officials actually knew
that the harassment was taking place. We reject the
district court’s further requirement that
plaintiffs in such cases plead or prove that the
recipient, or any of its officials, failed to
respond as a result of sexually discriminatory
intent. The failure promptly to take appropriate
steps in response to known sexual harassment is
itself intentional discrimination on the basis of
sex, and so, once a plaintiff has alleged such
failure, she has alleged the sort of intentional
discrimination against which Title IX protects.

C. Title IX Liability

Because today’s holding is inconsistent with the
decisions of two of the three other courts of
appeals that have directly addressed the issue, it
is appropriate that this Court should explain the
grounds for its disagreement with those decisions.
The Fifth Circuit in Rowinsky, 80 F.3d at 1006,
held that a school’s alleged failure to respond
sufficiently to sexual harassment of a student by
other students could not incur liability under
Title IX. The court considered the pertinent
question to be whether the school could be held
liable for the acts of third persons (the harassing
students) who were not its agents. See id. at 1011
(noting that when a student is the harasser, "a
theory of respondeat superior has no precedential
or logical support"); id. at 1012 (stating that
Title IX’s language "does not support an inference
that the statute applies to the conduct of third
parties" and noting factors that weigh in favor of
imposing liability "only for the acts of grant
recipients").

As a result of this analysis, the Rowinsky court
concluded that the only way in which the plaintiff
could state a cause of action under Title IX based
on sexual harassment by other students would be by
showing "that the school district responded to
sexual harassment claims differently based on sex"
by, for instance, "treat[ing] sexual harassment of
boys more seriously than sexual harassment of
girls." Id. at 1016. Such a showing, the court
believed, would be sufficient to show that the
school itself discriminated on the basis of sex in
its response to the complaints.

With respect, the Fifth Circuit’s analysis
fundamentally misunderstands the nature of the
claim that plaintiffs in this kind of case advance.
See Doe v. Petaluma City Sch. Dist. (Petaluma II),
949 F. Supp. 1415, 1421 (N.D. Cal. 1996). Jane Doe
does not ask that the defendant be held liable for
the acts of the harassing students; rather, she
asks that it be held liable for its own actions and
inaction in the face of its knowledge that the
harassment was occurring. Were Doe in fact
requesting that the harassing students’ actions be
imputed to the University under agency principles,
then her claim would be properly dismissed. See
Smith, 128 F.3d at 1034 ("Agency principles . . .
cannot impute discriminatory conduct of an employee
to the ’program or activity’" under Title IX.).
Instead, Doe alleges that responsible school and
University officials knew of the harassment and
failed to take measures to address it. "Thus, [the
alleged] institutional liability rest[s] on the
institution’s actions" rather than those of the
harassers. Id. at 1022 (discussing Franklin, 503
U.S at 60). The Fifth Circuit’s agency-based
analysis, therefore, does not resolve the issue.

Moreover, the Rowinsky court’s demand that a
plaintiff such as Jane Doe, in order to state a
Title IX cause of action, allege and show that the
school reacted differently to sexual harassment
claims made by girls and boys misunderstands sexual
harassment itself. This Court has noted in the
Title VII context that the arguments underpinning
the Rowinsky requirement "interpret sex
discrimination in too literal a fashion." McDonnell
v. Cisneros, 84 F.3d 256, 260 (7th Cir. 1996). As
we recognized in that case, occasional exceptions
do not alter the rule that sexual harassment is an
evil that affects mostly women and girls. For this
reason, it must be exceedingly rare that a school
receives any complaints of sexual harassment from
its male students. The Fifth Circuit’s rule would
leave schools completely free to ignore the more
frequent complaints of sexual harassment from
girls, while imposing only the minimal cost that
such schools would be required likewise to ignore
any complaints they might receive from their male
students. See Petaluma II, 949 F. Supp. at 1421.

1. The Eleventh Circuit’s Spending Clause
Analysis

Apparently recognizing these fatal flaws of the
Rowinsky opinion, the Eleventh Circuit in its en
banc opinion in Davis took care not to characterize
the issue as one of liability for the acts of third
parties. It also did not echo the dictum that a
plaintiff could only state a claim by showing
differential treatment of complaints by boys and
girls. The court properly recognized that the
school’s allegedly discriminatory conduct lay in
"fail[ing] to take measures sufficient to prevent
a non-employee from discriminating against [the
plaintiff]." Davis, 120 F.3d at 1401. With this
understanding, the court proceeded to analyze
whether a school could properly face Title IX
liability for such a failure.

The Davis court began by finding that Title IX
was enacted pursuant to the Spending Clause of the
Constitution (art. I, sec. 8, cl. 1). See id. at
1398. From that premise, it next concluded that the
proper inquiry to determine whether the school
could be held liable was "whether Congress gave the
[school] Board unambiguous notice that it could be
held liable for failing to stop [the] harassment."
Id. at 1399. This Court held in Part I above that
Congress enacted Title IX and applied it to the
States pursuant to its powers under both the
Spending Clause and Section 5 of the Fourteenth
Amendment. While the Eleventh Circuit’s approach is
certainly relevant, it is not sufficient to
conclude the inquiry.

In its Spending Clause analysis, the Eleventh
Circuit correctly observed that "[w]hen Congress
enacts legislation pursuant to the Spending Clause,
it in effect offers to form a contract with
potential recipients of federal funding." Id.
(citing Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 17). As a general matter, the result of
this contractual analogy is that "if Congress
intends to impose a condition on the grant of
federal moneys, it must do so unambiguously."
Pennhurst, 451 U.S. at 17. In light of this
requirement, the Eleventh Circuit inquired whether
the defendant school board had been unambiguously
put "on notice" that it might be liable for failing
to respond to sexual harassment that it knew was
taking place.

By relying upon the unambiguous statement rule of
Pennhurst, the Eleventh Circuit ignored a more
recent Supreme Court holding on the matter. In
Franklin, 503 U.S. at 74-75, the Court held that
where the discrimination alleged to have violated
Title IX is intentional, the "notice problem does
not arise." See Davis, 120 F.3d at 1414 (Barkett,
J., dissenting). Title IX, the Supreme Court held,
placed on schools the duty not to discriminate on
the basis of sex; when a school violated that duty,
it could be held liable despite the fact that the
Court had not previously imposed a similar remedy
for the kind of Title IX violation at issue. See
Franklin, 503 U.S. at 75 (holding monetary damages
remedy against school district appropriate where
school officials knew about teacher’s sexual
harassment and abuse of student).

In the case before the Court today, Jane Doe
alleges that University High’s failure or refusal
to take prompt and appropriate action in response
to her complaints of sexual harassment was
intentional sexual discrimination. In other words,
the allegation assumes that the combination of
knowledge that sexual harassment is occurring in
activities under the school’s control and
intentional failure to take prompt, appropriate
action (such as investigation and, if warranted,
disciplinary measures) is presumably, perhaps even
necessarily, a manifestation of intentional sex
discrimination. See Smith, 128 F.3d at 1028 (noting
that "a School District or School Board that ’knew’
and failed to respond to sex discrimination would
act with the intent required to suffer a monetary
judgment under the Spending Clause"); id. at 1042
(Coffey, J., concurring) (same). After all, what
other good reason could there possibly be for
refusing even to make meaningful investigation of
such complaints, as Jane Doe alleges University
High officials did in this case?

School and University officials were
unquestionably aware that Title IX subjected the
school to liability for intentionally
discriminating against or denying educational
benefits to students on the basis of sex. There is
also no question that the campaign of harassment
that Doe alleges was sufficient to deny her the
full benefit of her education and subject her to
discrimination at the school. If, as alleged,
school and University officials knew about the
harassment and intentionally failed, and indeed
flatly refused in some instances, to take steps to
address it, then the plea that the institution was
not "on notice" that such failure could subject it
to Title IX liability rings hollow.

2. Fourteenth Amendment Analysis

Part I of this opinion held that Congress enacted
Title IX and extended it to the States in part
pursuant to Section 5 of the Fourteenth Amendment.
In so holding, this Court concluded that the
Supreme Court’s admonition in Pennhurst against
"quickly attribut[ing] to Congress an unstated
intent to act under its authority to enforce the
Fourteenth Amendment," Pennhurst, 451 U.S. at 16,
was not pertinent to resolving the question under
which of its powers Congress acted in passing and
extending Title IX. The warning in Pennhurst is,
however, most certainly relevant to the present
inquiry, which is whether Title IX imposes upon
recipients liability for certain types of actions
or inactions.

In Pennhurst, the Supreme Court declined to
conclude that Congress, in passing the
Developmentally Disabled Assistance and Bill of
Rights Act, had intended to use its Section 5
powers to impose an obligation on States to provide
and pay for certain kinds of treatment to the
mentally disabled. Id. at 15-17. The Court noted
that previous cases in which it had found that
Congress did create rights and obligations pursuant
to Section 5 involved express articulations of
intent by Congress. Id. at 16. The Court further
stated that "[t]he case for inferring intent [to
create enforceable rights] is at its weakest where
. . . the rights asserted impose affirmative
obligations on the States to fund certain services,
since we may assume that Congress will not
implicitly attempt to impose massive financial
obligations on the States." Id. at 16-17. The Court
contrasted such impositions of affirmative
obligations with statutes that "simply prohibit[]
certain kinds of state conduct." Id. at 16; see
Illinois Dep’t of Public Aid v. Sullivan, 919 F.2d
428, 434 (7th Cir. 1990) (finding that Pennhurst
did not bar imposition of prohibitions on State, in
part because "[t]he regulations in question . . .
imposed no new, affirmative obligations on [the
State]").

The right Jane Doe asserts in this case would
impose no affirmative funding obligations on the
States. It would merely prohibit States, in their
capacity as administrators of educational programs
receiving Title IX funds, from failing to respond
to sexual harassment that they knew was occurring.
Cf. Timmer v. Michigan Dep’t of Commerce, 104 F.3d
833, 840-841 (6th Cir. 1997) (inferring intent to
enact Equal Pay Act pursuant to Fourteenth
Amendment powers in part because it "simply
prohibit[s] certain kinds of state conduct," rather
than imposing financial obligations).

In any event, this Court does not read Pennhurst
to stand for the proposition that Congress may
never impose duties upon the States pursuant to
Section 5 of the Fourteenth Amendment in the
absence of a clear, unambiguous statement that it
is imposing those precise duties. Clarity in
legislative drafting is a goal to which this Court
willingly subscribes. Congress need not, however,
spell out in advance every situation to which it
wishes a statute to apply. As we observed nearly a
decade and a half ago, the question of whether
Congress created enforceable rights in the first
instance is very different from questions
concerning "the scope and interpretation" of those
rights. American Hosp. Assoc. v. Schweiker, 721
F.2d 170, 183 (7th Cir. 1983) (upholding community
service and uncompensated care requirements imposed
on federally funded hospitals by Department of
Health and Human Services regulations pursuant to
Hill-Burton Act), certiorari denied, 466 U.S. 958.
This Court noted in Schweiker that the defendant
hospitals conceded that the statute created
enforceable obligations; only the scope of the
obligations was at issue. See id. Similarly, no
party to the present case could seriously dispute
that Title IX imposes obligations upon schools that
receive federal funds to avoid discrimination on
the basis of sex, or that students such as Jane Doe
may sue to enforce those obligations. The issue is
whether those obligations’ scope is wide enough to
include the kind of liability Doe seeks to impose.
Pennhurst is not a bar to inquiry into that
question. If the language and history of Title IX
and its extension to the States fairly support
liability under the theory Jane Doe advances, then
this Court may conclude that Congress acted
pursuant to Section 5 of the Fourteenth Amendment
to impose such liability.

In its Spending Clause inquiry, the Eleventh
Circuit looked primarily to the express terms and
legislative history of Title IX. Finding no mention
in the legislative history of student-on-student
sexual harassment "or the related issue of school
discipline," Davis, 120 F.3d at 1397, the court
concluded that schools were not "on notice" that
they might be held liable for failing properly to
address sexual harassment by students, id. at
1401./8

Although we have concluded herein that Title IX
is not exclusively a Spending Clause enactment (and
that the notice issue does not arise, given the
intentional nature of the discrimination alleged),
the Davis court’s analysis of whether the statute
imposes liability provides a starting point for our
Fourteenth Amendment inquiry. Unfortunately, the
Eleventh Circuit made the mistake of focusing too
narrowly on the statute and the legislative
history, ignoring both case law and the meaning
attached to Title IX by the federal agency
responsible for its enforcement. As the dissenting
judges in Davis observed, the language and
legislative history of Title IX do not deal with
teacher-on-student sexual harassment, any more than
they do student-on-student harassment. See id. at
1413-1414 (Barkett, J., dissenting). Yet the
Supreme Court has explicitly recognized that Title
IX creates a cause of action based upon teacher-on-
student sexual harassment. See Franklin, 503 U.S.
at 60.

Indeed, the very principle that Title IX confers
a private right of action for any sort of violation
was not explicit in the text or legislative
history; it became law only when the Supreme Court
decided that Title IX implied such a right of
action. See Cannon v. University of Chicago, 441
U.S. 677, 688-689; see also Franklin, 503 U.S. at
71 (noting that, given fact that right of action
was inferred by Court in Cannon, prior legislative
history and statutory text were not helpful in
deciding whether money damages were available).
This Court must, therefore, look to judicial
decisions to help it determine whether Title IX
imposes liability for the University’s failure to
address appropriately sexual harassment by its
students.

The Supreme Court has declared that Title IX is
to be given "a sweep as broad as its language."
North Haven Bd. of Educ. v. Bell, 456 U.S. 512,
521. That language, in turn, speaks in terms of
safeguarding individual students’ rights: "No
person . . . shall be excluded . . . , be denied .
. . benefits . . . , or be subjected to
discrimination . . . ." 20 U.S.C. sec. 1681. As the
dissenting judges in Davis pointed out, "[t]he
absolute prohibition contained in the text is
framed solely in terms of who is protected." Davis,
120 F.3d at 1412 (Barkett, J., dissenting). Giving
this statutory language the "broad sweep" required
by North Haven certainly supports the proposition
that a school may be liable for refusing to act
upon its responsibility to operate a program in
which all persons are free from the kind of
exclusion and discrimination the statute forbids.

Beyond interpretation of the statutory language
itself, however, federal courts look to cases
decided under Title VII to inform analysis under
Title IX. See, e.g., Preston v. Commonwealth of
Virginia ex rel. New River Community College, 31
F.3d 203, 206 (4th Cir. 1994); Lipsett v.
University of Puerto Rico, 864 F.2d 881, 896-897
(1st Cir. 1988); Mabry v. State Bd. of Community
Colleges & Occupational Educ., 813 F.2d 311, 316
n.6 (10th Cir. 1987), certiorari denied, 484 U.S.
849. Although Title VII is most closely analogous
to Title IX actions involving discrimination
against educational employees, see Preston, 31 F.3d
at 206, Title VII cases are also helpful in
addressing other claims of sexual discrimination
under Title IX. See, e.g., Murray v. New York Univ.
College of Dentistry, 57 F.3d 243, 248-249 (2d Cir.
1995) (applying Title VII analysis to student’s
Title IX claim against school involving sexual
harassment by teacher). The very definition of
sexual harassment that is implicit in this
discussion and that of the other courts that have
addressed it in the educational context comes from
Title VII. See Meritor Savings Bank FSB v. Vinson,
477 U.S. 57, 67 (defining actionable sexual
harassment under Title VII). The Supreme Court, in
recognizing that sexual harassment of students by
teachers could give rise to a Title IX cause of
action against the school, cited Meritor, a Title
VII case. See Franklin, 503 U.S. at 75. Broadly
speaking, there is no reason why students such as
Jane Doe should be afforded a lesser degree of
protection against such "hostile environment"
discrimination than adult workers in the employment
setting regulated by Title VII.

This Court recently held that, because of
differences in the language and history of Title IX
and Title VII, cases decided under the latter
should not be construed to impose Title IX
liability upon schools for the acts of their
employees on the basis of agency principles. See
Smith, 128 F.3d at 1034. Jane Doe’s argument in
this case uses Title VII cases for a different
purpose, however--to support the conclusion that
schools may be held directly liable under Title IX
for their own failure to respond appropriately to
sexual harassment of which they have actual
knowledge. Such failure, Doe contends, renders the
University directly liable for its own intentional
discrimination on the basis of sex. Thus the
holding in Smith that Title VII agency-based
principles do not apply in Title IX cases does not
preclude our use of Title VII precedents here.
One problem with borrowing so liberally from
Title VII law in interpreting Title IX may be that
under Title VII prospective litigants are required
to proceed through a federal administrative agency,
the Equal Employment Opportunity Commission (EEOC),
before filing suit in federal court./9 See
Patterson v. McLean Credit Union, 491 U.S. 164,
180. This requirement is intended to promote the
resolution of unlawful employment practice claims
"through conciliation rather than litigation." Id.
Because no comparable administrative review
mechanism exists for suits filed under Title IX,
one might infer that Congress did not contemplate
that courts would recognize as broad a range of
causes of action under Title IX as under Title VII.
Perhaps the absence of agency review means that
this Court should not look to Title VII cases to
inform its analysis of Jane Doe’s Title IX claim.

On the other hand, private citizens have
possessed a right to bring suit under Title IX for
over eighteen years. See Cannon, 441 U.S. at 688-
689. For at least five of those years, students
have had a cause of action against schools based on
sexual harassment by school employees. See
Franklin, 503 U.S. at 63-64, 76. As noted above,
for much of that time courts, including the Supreme
Court, have been using Title VII precedent in
analyzing Title IX suits. In all those years,
Congress has not seen fit to institute a
requirement of administrative review or
conciliation for private suits under Title IX. Yet
nothing indicates that the federal courts have seen
an overwhelming flood of such suits. Nor does the
species of Title IX liability for which Jane Doe
asks in this case threaten to produce such a flood.
Courts are free to use the means provided by
Federal Rules of Civil Procedure 12 and 56, among
others, to dispose of suits that lack merit.
Congress, for its part, is free to impose a
requirement comparable to the one under Title VII
if it so desires. The absence of an administrative
review requirement does not discourage the use of
Title VII precedents in cases under Title IX.

Under Title VII standards, "an employer who has
reason to know that one of his employees is being
harassed in the workplace by others on grounds of
race, sex, religion, or national origin, and does
nothing about it, is blameworthy." Hunter v. Allis-
Chalmers Corp., Engine Div., 797 F.2d 1417, 1422
(7th Cir. 1986). So long as the harassment is such
that "the employer could have prevented [it] by
reasonable care in hiring, supervising, or if
necessary firing the [harasser]," the employer is
"directly liable (that is, independently of
respondeat superior)." Id. Translated to the Title
IX setting, this standard would mean that the
University is liable for harassment by its
students, regardless of the fact that students are
not agents of the school, so long as it knew or had
reason to know about the harassment and could have
prevented some or all of it by taking appropriate
action in response. The absence of an agency
relationship is simply irrelevant, given our
holding that the liability Jane Doe seeks is
direct, rather than agency-based. Although we do
not adopt, for the reasons given in Smith, 128 F.3d
at 1028-1029, the Title VII "knew or should have
known" standard articulated in cases such as
Hunter, we do borrow that case’s theory of direct
liability.

This view of Title IX liability also takes into
account the interpretations of the Department of
Education’s Office of Civil Rights (OCR), the
federal agency charged with enforcing Title IX.
Although OCR’s interpretation of Title IX is not
entitled to strict deference from this Court, see
id. at 1033-1034, it merits our consideration. The
OCR’s final policy guidance on the matter states:

[A] school’s failure to respond to the existence of
a hostile environment within its own programs or
activities permits an atmosphere of sexual
discrimination to permeate the educational program
and results in discrimination prohibited by Title
IX. Conversely, if, upon notice of hostile
environment harassment, a school takes immediate
and appropriate steps to remedy the hostile
environment, the school has avoided violating Title
IX. Thus, Title IX does not make a school
responsible for the actions of harassing students,
but rather for its own discrimination in failing to
remedy it once the school has notice.

Sexual Harassment Guidance: Harassment of Students
by School Employees, Other Students, or Third
Parties, 62 Fed. Reg. 12,034, 12,039-12,040 (1997).

The Eleventh Circuit’s opinion in Davis ignored
this policy statement (although Judge Tjoflat
addressed it in a footnote to the portion of the
opinion that is his alone, see Davis, 120 F.3d at
1404 n.23 (noting that the guidelines "issued after
the alleged harassment" in the case)). It is
certainly relevant that the OCR’s final Guidance
had not been issued at the time the harassment was
taking place. The Guidance, however, reflects
longstanding OCR policy, as demonstrated by
official Letters of Finding dating as far back as
1989. The Fifth Circuit in Rowinsky determined that
such Letters are not entitled to deference, as they
"are promulgated during investigations of specific
institutions, and their purpose is to compel
voluntary compliance by an offending institution."
Rowinsky, 80 F.3d at 1015. Where, as here, the
Letters of Finding consistently indicate that, in
the words of one of them, "[a] district which is
aware that its students are being subjected to
sexual harassment has a duty under Title IX to take
prompt and effective action to stop it," Letter of
Finding of John E. Palomino, Regional Civil Rights
Director, Region IX (May 5, 1989), Docket No. 09-
89-1050, there is no reason not to consider the
Letters as evidence that the later Policy Guidance
did indeed reflect long-existing OCR policy.

It is clear, then, that Title VII case law and
the interpretations of the responsible federal
agency support the imposition of Title IX liability
for the University’s failure to respond promptly
and appropriately to the sexual harassment of Jane
Doe. Furthermore, imposing such liability best
serves the anti-discrimination goal that Congress
indisputably had in mind when it enacted Title IX
and made it binding upon the States. Accordingly,
this Court holds that Title IX does make schools
liable for failure to respond promptly and
appropriately to known student-on-student sexual
harassment.

In holding that schools have a duty to take
prompt and appropriate action to remedy student-on-
student sexual harassment, this Court does not
imply that schools must be successful in completely
eradicating sexual harassment from their campuses
and programs. School officials faced with knowledge
of sexual harassment must decide how to respond,
but their choice is not a binary one between an
obviously appropriate solution and no action at
all. Rather, officials must choose from a range of
responses. As long as the responsive strategy
chosen is one plausibly directed toward putting an
end to the known harassment, courts should not
second-guess the professional judgments of school
officials. In general terms, it should be enough to
avoid Title IX liability if school officials
investigate aggressively all complaints of sexual
harassment and respond consistently and
meaningfully when those complaints are found to
have merit.

D. Proper Standard for Notice that Harassment
is Occurring

The holding that a school can be liable for
failing to respond appropriately to sexual
harassment makes it necessary to determine what
constitutes sufficient notice to the school that
such harassment is taking place. One court of
appeals and one district court, borrowing from the
Title VII context, have held that a school is
liable for failing properly to address harassment
that it actually knew or should have known was
occurring. Brzonkala, 132 F.3d at 949; Petaluma II,
949 F. Supp. at 1427. Several other district
courts, in contrast, have adopted a standard that
requires plaintiffs to allege and prove that the
school officials actually knew of the harassment
(rather than that they should have known). See
Londonderry Sch. Dist., 970 F. Supp. at 74;
Bruneau, 935 F. Supp. at 173; Wright, 940 F. Supp.
at 1419-1420; Bosley, 904 F. Supp. at 1023.

In Smith, this Court rejected Title IX liability
for teacher-on-student sexual harassment based on
a "knew or should have known" standard and adopted
instead a requirement of actual knowledge. Smith,
128 F.3d at 1034 (holding that school district can
be liable "only if a school official who had actual
knowledge of the abuse was invested by the school
board with the duty to supervise the employee and
the power to take action that would end such abuse
and failed to do so") (quoting Rosa H. v. San
Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th
Cir. 1997)). We see no reason to adopt a different
standard for cases, such as this one, in which the
alleged harassment is student-on-student.

The actual knowledge standard is sufficient to
resolve the case before the Court today, because
Doe alleged that the University actually knew of
the campaign of harassment against her. Indeed,
counsel for the University conceded at oral
argument that school officials knew of at least
some of the incidents of sexual harassment. The
parties agree that school officials on one occasion
suspended some of the male students involved and
took other actions in response to the harassment.
Such responses preclude any argument that the
officials did not have actual knowledge.

Furthermore, the requirement of actual knowledge
is an appropriate limitation upon the liability to
which suits based on student-on-student harassment
subject schools. It will prevent schools from being
blind sided by liability based upon events that
officials did not even know were taking place. Such
a requirement does not place too severe a burden on
potential plaintiffs. All that is required is that
they report the alleged harassment to responsible
school officials, thus giving the school a chance
to respond before it is hauled into court.

CONCLUSION

Jane Doe has alleged that she was subjected to
hostile environment sexual harassment. As noted
above, Doe also alleged (and the University
concedes) that school and University officials had
actual knowledge of that harassment. In addition,
Doe has alleged facts that would allow a jury to
find that the University failed to respond promptly
and appropriately to her complaints.

For the reasons set forth in Part I of this
opinion, the district court’s denial of the
University’s motion to reconsider on the basis of
Eleventh Amendment immunity is affirmed. Because
the plaintiff, Jane Doe, alleged facts sufficient
to support each element of her claim that the
University violated Title IX, the district court’s
dismissal of her Title IX cause of action against
the University pursuant to Federal Rule of Civil
Procedure 12(b)(6) is hereby reversed. The case is
remanded to the district court for further
proceedings consistent with this opinion.

FOOTNOTES

/* Because it conflicts with the decisions of other
Circuits, this opinion has been circulated among
all judges of this Court in regular active service
in accordance with Seventh Circuit Rule 40(e). A
majority of judges did not favor rehearing en banc.

/1 Because the district court dismissed Doe’s Title IX
cause of action pursuant to Federal Rule of Civil
Procedure 12(b)(6), this Court must take as true
all factual allegations in Doe’s complaint and draw
all reasonable inferences in her favor. See
Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.
1995). The facts stated in this opinion reflect
that requirement.

/2 The University’s Eleventh Amendment immunity
defense is a question of the federal courts’
subject matter jurisdiction over the action. The
University was therefore entitled to raise the
issue at any stage of the litigation. See Fed. R.
Civ. P. 12(h)(3) ("Whenever it appears by
suggestion of the parties or otherwise that the
court lacks jurisdiction of the subject matter, the
court shall dismiss the action.").

/3 The Equalization Act states in relevant part, "A
State shall not be immune under the Eleventh
Amendment . . . from suit in Federal court for a
violation of . . . title IX." 42 U.S.C. sec. 2000d-
7(a)(1).

/4 Section 5 of the Fourteenth Amendment provides,
"The Congress shall have power to enforce, by
appropriate legislation, the provisions of [the
Amendment]."

/5 In passing, however, it is worth noting that Jane
Doe’s briefs to this Court point out several
instances in the legislative history where members
of Congress refer to Title IX as an extension of
Fourteenth Amendment protections.

/6 Gregory, too, interpreted the substantive reach of
a statute, rather than divining the source of
Congress’ power. The question in Gregory was
whether Congress intended the Age Discrimination in
Employment Act to apply to appointed state court
judges. See Gregory, 501 U.S. at 455.

/7 The district court’s Order dismissing Doe’s Title
IX claim was issued on March 29, 1996. The Fifth
Circuit decided Rowinsky, 80 F.3d at 1006, four
days later, on April 2. The Eleventh Circuit’s
panel decision in Davis, 74 F.3d 1186 (11th Cir.
1996), which found liability without the necessity
of pleading that school officials were motivated by
discriminatory intent, was issued on February 14,
1996, but the district court did not mention the
case in its Order. The Davis panel decision was
subsequently vacated, 91 F.3d 1418 (11th Cir. 1996)
(granting rehearing en banc and vacating panel
decision), and the full Circuit reached the
contrary result discussed in the text.

/8 In sections of the en banc opinion not joined by
any other judge, the author of the majority
opinion, Judge Tjoflat, went on to state that the
possibility of schools’ being subject to what he
called "whipsaw liability" was a further indication
that Title IX did not put schools on notice that
they might face liability under the circumstances
of the case. Davis, 120 F.3d at 1401. By "whipsaw"
liability, Judge Tjoflat meant the danger that a
school might be sued by a harassed victim if it
failed to take action against the harasser, but
might then be sued by the harasser if it expelled
or otherwise punished him (or her). See id. at
1401-1406. As these statements do not represent the
opinion of the court, it is not necessary to
address them at length. It is worth pointing out,
however, that other Congressional enactments in the
anti-discrimination field subject parties to the
possibility of similar dual liabilities. Under
Title VII, for instance, an employer might face
suit from a harassed employee if it fails to take
steps to remedy a hostile environment, but might
also be sued by the harasser (for instance, for
wrongful termination) if it disciplines him.

/9 The EEOC reviews Title VII complaints of unlawful
employment practices to determine whether
reasonable cause exists to believe the charges are
true. 42 U.S.C. sec. 2000e-5(b). If it determines
that such cause does exist, the EEOC must "endeavor
to eliminate any . . . alleged unlawful employment
practice by informal methods." Id. The EEOC is
empowered to institute civil suits itself or refer
cases to the Attorney General for action. Id. sec.
2000e-5(f)(1). If the EEOC does not institute such
a suit or refer the case, or if it determines that
reasonable cause does not exist to support the
charges, it must dismiss the case and notify the
complaining party that he or she has the right to
sue in federal court. Id. In addition, the EEOC in
many cases is required to give State enforcement
agencies an opportunity to resolve the dispute. See
id. secs. 2000e-5(c)-(d).

Coffey, Circuit Judge, concurring in part and
dissenting in part. I concur in the majority’s
conclusion but not in its reasoning; I dissent from
the majority’s standard of liability. Title IX does
impose liability upon fund recipients for failing
to take prompt, appropriate remedial action in
response to complaints of student-on-student sexual
harassment, provided that responsible officials had
actual knowledge of such harassment. But only those
remedial actions which clearly evidence intentional
discrimination are actionable under Title IX. See
Smith v. Metropolitan Sch. Dist., 128 F.3d 1014,
1028 (7th Cir. 1997). Doe’s facts as pleaded are
sufficient to state a claim within this standard.
I write separately in an attempt to clarify certain
ambiguities in the majority opinion, and at the
same time raise several concerns about the analysis
set forth therein. As the majority notes, we are
only the second federal appellate court to date to
impose Title IX liability in the context of peer-
on-peer harassment; two other circuits, the Fifth
and Eleventh, have rejected the concept altogether,
see Davis v. Moore County Bd. of Educ., 120 F.3d
1390 (11th Cir. 1997) (en banc); Rowinski v. Bryan
Indep. Sch. Dist., 80 F.3d 1006 (5th Cir.), cert.
denied, 117 S. Ct. 165 (1996), and the "actual
knowledge" test we adopt today is markedly
different from the Fourth Circuit’s negligence-
based "knew or should have known" standard of
liability. See Brzonkala v. Virginia Polytechnic
Inst. & State Univ., 1997 WL 785529 (4th Cir. Dec.
23, 1997)./1 This is indeed a most contentious
area of the law, one deserving of great scrutiny
and forethought. I fear that the majority has
perhaps been too hasty in interpreting Title IX
when the financing of our nation’s public
educational institutions hangs in the balance due
to limited tax dollars.

The statutory language itself should be the
starting point in resolving any controversy arising
under a federal statute. Title IX states that "[n]o
person in the United States shall, on the basis of
sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination
under any education program or activity receiving
Federal financial assistance . . . ." 20 U.S.C.
sec. 1681(a) (1990). And while the peer-on-peer
harassment issue implicated in this case is one of
first impression for this Circuit, we have
previously been called upon to interpret Title IX
in a different context. In Smith v. Metropolitan
Sch. Dist. Perry Township, decided by this Court a
mere few months ago, we concluded that "a school
district can be liable for teacher-student sexual
harassment under Title IX only if a school official
who had actual knowledge of the abuse was invested
by the school board with the duty to supervise the
employee and the power to take action that would
end such abuse and failed to do so." 128 F.3d at
1034 (emphasis added) (quoting Rosa H. v. San
Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th
Cir. 1997)). Admittedly, teacher-on-student
harassment and student-on-student harassment are of
an entirely different species./2 Nevertheless,
Smith is helpful as a guide for determining when
and if a school district might be held liable for
one student’s sexual harassment of another.

In Smith, Steve Rager, a male teacher at
Southport High School in Indianapolis, Indiana,
engaged in a sexual relationship with Heather
Smith, then a seventeen-year-old female senior at
Southport. After graduating, Smith apprised her
parents of the affair and they, in turn, reported
it to school officials. Two days later, Rager was
suspended, informed that his services were no
longer desired, and told that his teaching license
would be terminated if he did not resign forthwith.
Rager promptly submitted his resignation.
Thereafter, the school district sent a letter to
the Indiana State Board of Education recommending
the revocation of Rager’s teaching license. In the
wake of these events, Smith brought suit against,
among other parties, the Metropolitan School
District Perry Township ("Metropolitan"), alleging
that the district discriminated against her in
violation of Title IX because school officials knew
or should have known that sexual harassment was
taking place and did nothing to prevent its
continuance. Metropolitan filed a motion for
summary judgment, which the trial court denied,
opining that teacher-on-student sexual harassment
under Title IX was to be measured pursuant to a
negligence standard, and that the "facts could
support the conclusion that the School Defendants
should have known about the sexual harassment and
taken prompt action to stop it." This Court
reversed, and in so doing, reasoned that insofar as
"Title IX was passed pursuant to Congress’ Spending
Clause power," monetary recovery was limited to
remedying acts of "intentional discrimination."/3
Id. at 1028; see also Guardians Ass’n v. Civil
Service Comm’n of New York, 463 U.S. 582, 599, 103
S. Ct. 3221, 3231 (1983). Such intent, we
concluded, is present only where the defendant-
school has "actual knowledge" of sexual harassment
and fails to take appropriate action to end it.
Smith, 128 F.3d at 1034. Because Metropolitan never
possessed actual knowledge of Rager’s and Smith’s
sexual liaison while it was taking place, there was
no need for us to consider what constituted
"appropriate action."

In my view, Smith’s "actual knowledge"
requirement is the very basis of Title IX
liability, and it transcends any differences that
might exist between the nature of teacher-on-
student and student-on-student sexual harassment.
Both demand that the plaintiff establish
intentional discrimination before Title IX
liability will attach, and school officials cannot
intend to discriminate against an individual unless
they have actual knowledge of harassment in the
first place./4 See id. at 1034 (explaining that
"[w]here a grant recipient has no knowledge of
alleged discrimination, it cannot be said to have
intentionally discriminated against the
plaintiff"). I join in that part of the majority
holding that recognizes this very significant
"actual knowledge" prerequisite to Title IX
liability, and make special note that it is clearly
reflected in the majority’s standard, which reads,
in part: "[A] Title IX fund recipient may be held
liable for its failure to take prompt, appropriate
action in response to student-on-student sexual
harassment . . ., provided the recipient’s
responsible officials actually knew that the
harassment was taking place." Maj. Op. at 15
(emphasis added). But while I agree with the
general spirit of Title IX liability as set forth
in the majority’s "actual knowledge" test, I
nevertheless have serious misgivings about other
facets of the standard it proposes.

Although this Court has issued but one decision
dealing with and defining the parameters of Title
IX liability, that single case, Smith, leaves no
doubt that Title IX forbids intentional
discrimination only. I fear that a casual reader of
today’s majority opinion might very well argue that
negligence concepts have somehow crept into our
Title IX jurisprudence. It may indeed be true that
"Doe has alleged facts that would allow a jury to
find that the University failed to respond promptly
and appropriately to her complaints" Maj. Op. at
30, but such a statement begs the question as to
what constitutes a "prompt and appropriate"
response--is it merely some action, however trite,
suspension (as was done here), or expulsion of the
harassing student? Of course, the answer thereto
must lie somewhere beyond a negligence rubric, and
hinges on the circumstances of the particular case.
The issue is not whether a given school did enough
to wipe out ongoing student-on-student sexual
harassment--that is a negligence inquiry/5--
rather, the proper question is whether the
responsive action taken was of such a nature that
it effectively evinced the school’s intent to
perpetuate a sexually-hostile environment./6 In
other words, if a school district acquired actual
knowledge of peer-on-peer harassment and undertook
measures that it believed would achieve their
desired result, but which fell short in doing so,
one could hardly suggest that school officials
intentionally discriminated against the complaining
student unless their response was so de minimis
that it evidenced an endorsement of the harassment,
they somehow treated female complaints differently
than male complaints, or vice versa,/7 or they
departed from established policies and practices
when punishing student harassers./8 This appears
to be what the majority is attempting to get at
when it states:

As long as the responsive strategy chosen is one
plausibly directed toward putting an end to the
known harassment, courts should not second-guess
the professional judgments of school officials. In
general terms, it should be enough to avoid Title
IX liability if school officials investigate
aggressively all complaints of sexual harassment
and respond consistently and meaningfully when
those complaints are found to have merit.

Maj. Op. at 28. I think a "meaningful" response, as
Judge Cummings uses the term, can and should be
interpreted very broadly to include any remedial
action which is not so de minimis that it
demonstrates an intent by school officials to
discriminate against the complaining student on an
improper basis. I would, therefore, prefer to raise
the level of deference we should accord schools’
remedial actions even beyond Judge Evans’
observation that "[c]onsiderable deference . . .
must be given to schools in meeting these demands,
and a wide range of reasonable responses should be
permitted" Evans Op. at 50 (emphasis added), and
emphasize the word "considerable." Alternatively,
if a school fails to take prompt remedial steps
after having received actual notice of student-on-
student harassment taking place during a school-
sponsored and supervised activity, acquiescence
could in such an instance be perceived as amounting
to intentional discrimination.

The bases of liability I propose above, like many
other aspects of this fast developing area of the
law, may be new to Title IX, but that is not to say
they are entirely foreign to our jurisprudence.
Only one year ago, in Nabozny v. Podlesny, 92 F.3d
446 (7th Cir. 1996), we considered a student’s
claim of peer-on-peer harassment under 42 U.S.C.
sec. 1983, as opposed to Title IX. And while sec.
1983 and Title IX do differ as to from whom relief
might be obtained,/9 they are, in fact, quite
similar with respect to how a court, proceeding
without statutory or Supreme Court guidance, should
go about construing claims brought pursuant to
them, for "[b]oth statutes prohibit the same kind
of conduct and provide compensatory and punitive
damages as remedies . . . ." Waid v. Merrill Area
Pub. Sch., 91 F.3d 857, 862 (7th Cir. 1996)
(emphasis added). Indeed, both Title IX and sec.
1983 forbid intentional sexual discrimination. That
having been said, I believe it would be helpful to
summarize the facts of Nabozny, which, in my
opinion, arguably would have stated a cognizable
claim under Title IX./10

Jamie Nabozny attended middle and high school in
the Ashland Public School District in Ashland,
Wisconsin. Nabozny, 92 F.3d at 449. From around the
time he entered the seventh grade until he withdrew
from Ashland High School in his junior year,
Nabozny suffered not only continual harassment, but
also physical abuse at the hands of his peers due
to the fact that he was an avowed homosexual; his
male classmates regularly referred to him as
"faggot," struck and spit on him, performed a mock
rape on him in a science classroom, as well as
pushed him, forcing him to fall into a urinal. Id.
at 451-52. After each of these incidents, Nabozny’s
parents met with Ashland High’s Principal, Mary
Podlesny, to report what had happened and identify
the perpetrators. Id. at 451. And on each occasion,
no action was forthcoming on the part of the school
authorities; in fact, Podlesny’s alleged responses
ranged from stating, "boys will be boys," to
telling Nabozny that "if he was ’going to be so
openly gay,’ he should ’expect’ such behavior from
his fellow students." Id. Nabozny eventually filed
suit pursuant to sec. 1983 against Podlesny, among
other parties, including the Ashland School
District, alleging that the defendants violated his
Fourteenth Amendment rights to equal protection and
due process.

On appeal from the district court’s entry of
summary judgment in the defendants’ favor, this
Court reversed. In so doing, we explained that
"[i]n order to establish liability under sec. 1983
[for an equal protection violation], Nabozny must
show that the defendants acted with a nefarious
discriminatory purpose," Id. at 453 (citation
omitted), that is, "demonstrate intentional or
purposeful discrimination." Id. at 454 (quoting
Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir.
1982) (emphasis added)). And "[d]iscriminatory
purpose," we stated, "implies that a decisionmaker
singled out a particular group for disparate
treatment and selected his course of action at
least in part for the purpose of causing its
adverse effects on the identifiable group." Id. at
454 (quoting Shango, 681 F.2d at 1104). Applying
these sec. 1983 principles to the facts in Nabozny,
we explained:

Nabozny has presented evidence that his classmates
harassed and battered him for years and that school
administrators failed to enforce their anti-
harassment policies, despite his repeated pleas for
them to do so. If the defendants otherwise enforced
their anti-harassment policies, as they contend,
then Nabozny’s evidence strongly suggests that they
made an exception to their normal practice in
Nabozny’s case.

Therefore, the question becomes whether Nabozny
can show that he received different treatment
because of his gender. . . . Nabozny does allege .
. . that when he was subjected to a mock rape
Podlesny responded by saying "boys will be boys,"
apparently dismissing the incident because both the
perpetrators and the victims were males. We find it
impossible to believe that a female lodging a
similar complaint would have received the same
response.

. . . .

Moreover, Nabozny introduced evidence to suggest
that the defendants literally laughed at Nabozny’s
pleas for help.

Id. at 454-55. Nabozny’s message is unequivocal,
and should not be lost in any attempt to
differentiate between sec. 1983 and Title IX.
Specifically, intentional discrimination can be
manifested in an institution’s: (1) complete
failure to respond to allegations of peer-on-peer
harassment; (2) its disparate treatment of male and
female complaints thereof; and/or (3) its unexcused
departure from established anti-harassment
policies. Nabozny did not call upon this Court to
address the fourth way in which a school’s intent
to discriminate might be demonstrated; namely, by
taking remedial action which is so de minimis in
nature that it might very well be considered an
endorsement of sexual harassment.

In this case, Doe does not allege that University
High School officials did nothing in response to
her accusations of sexual harassment, nor that they
previously had, much less would have, reacted
differently to a male student’s complaints thereof.
Rather, the school suspended two of Doe’s harassers
for ten days each, and transferred another one of
them out of Doe’s biology class. Does such a
response, which turned out to be unsuccessful in
curtailing the boys’ campaign of sexual harassment,
circumstantially evidence the school’s intent to
discriminate against Doe? I think not, but that is
an issue for the district court on a motion for
summary judgment, or for the trier of fact at
trial.

That having been said, I turn to another
troubling aspect of the majority’s standard;
namely, that the majority, in imposing Title IX
liability for peer-on-peer harassment which "takes
place while the students are involved in school
activities or otherwise under the supervision of
school employees" Maj. Op. at 15, advances an
indefinite disjunctive test that casts far too
broad a net upon the acts of students for which an
institution might incur liability. In my view, only
harassment that takes place while students are
involved in school-sponsored activities, whether on
or off school grounds (i.e., during scheduled
classes, school-sanctioned athletic events, dances,
field trips, or theatrical productions, to name a
few), might conceivably provide cause for Title IX
liability. Unlike the majority’s standard, my test
maintains Title IX’s requisite relationship between
the discrimination alleged and the school sought to
be charged. For example, let us suppose that
students within a public institution called "City
Public High School" hold an annual dance entitled
the "City Public High School Winter Formal."
Notwithstanding the name of the event, it is not
school-sanctioned, but is instead an entirely
private gala that takes place at a suburban country
club and is open to only a select group of invited
students. The district neither provides funding for
the affair nor assists in the organization,
planning or supervision of it--every arrangement is
exclusively made by and through the students. Once
at the dance, a male student makes some unwanted
sexual "passes" at a female classmate in attendance
who, in turn, complains to her principal about it
several days later. The school takes corrective
action, but the same type of "harassment" occurs at
next year’s "Winter Formal." This time the young
woman visits with her attorney, rather than the
principal, and brings a Title IX action against the
school district. While the majority’s use of the
loose term, "school activities," could possibly
encompass this set of facts, I do not think that
Title IX was enacted to capture a broad range of
conduct of this nature. In my view, there must be
established a true and meaningful nexus between the
harassment alleged and the institution sought to be
charged under Title IX. Where, as in the preceding
hypothetical, a number of students attend an event
which they have planned, financed and supervised
without the assistance of school officials, I
submit that the "connection" between the harassing
conduct and the school district is far too tenuous
to justify the imposition of Title IX liability.
Simply put, the majority’s use of the malleable
term, "school activities," is too indefinite and
all-inclusive, and could very well invite Title IX
liability well beyond the parameters Congress
envisioned, thus potentially expanding the number
of situations in which student-on-student
harassment is actionable. For this reason, I am of
the belief that Title IX liability must be limited
to harassment which takes place while students are
involved in school-sponsored activities, as opposed
to any function in which students participate, be
it their own or that of another organization.
 In the same vein, I disagree with the majority
that Title IX liability alternatively arises for
"harassment that takes place while the students are
. . . otherwise under the supervision of school
employees." Maj. Op. at 15. Once again, this
language is too all-inclusive. Taken literally, the
majority’s standard could potentially impose Title
IX liability if, after school hours or even during
summer break, a male student visits the home of a
female peer whose father happens to be a public
school employee (i.e., a custodian or maintenance
man), and sexually harasses her (assuming that the
parent (school employee) was present to supervise
the students’ behavior)./11 The parent’s
"supervision" of his daughter and the harassing
student is in such a case completely unrelated to
his position as a school employee, and the
harassment itself poses no relationship whatsoever
to an educational "program or activity." The
emphasis I am placing on the harassing conduct
(i.e., under what circumstances it takes place) is
not inconsistent with the notion that Title IX does
not impute liability on educational institutions
for the acts of students, but rather for the
institutions’ failure to respond promptly and
appropriately to complaints of sexual harassment
properly brought to their attention. If one student
sexually harasses another and the harassee
complains to school officials, the school will only
be liable if: (1) it had actual knowledge of the
harassment; (2) it fails to undertake prompt and
appropriate remedial action; and (3) the harassment
continues. Therefore, assuming that a school
actually knew about student-on-student harassment
and did not take prompt and appropriate remedial
measures in response thereto, the true linchpin of
Title IX liability is the actual act of continued
harassment.

My belief that the majority has in this instance
gone too far with its sweeping test is not only
grounded in the strict language of Title IX, but
also in my appreciation of the veritably impossible
task imposed on school authorities of controlling
the all-too-frequent reckless and unpredictable
behavior of today’s adolescents. The law does not
allow minor children (under eighteen years of age)
to consent to surgical procedures without parental
approval because of their emotional
immaturity./12 For this very reason, they are
likewise prohibited from voting, going to war,
purchasing alcohol or cigarettes, and even
contracting./13 Is it not ironic then that these
same minors have the ability to cast their school
systems into dire financial straits due to sexual
harassment driven by the same unalterable juvenile
shortcoming? Much ink has been spilled in the name
of explaining exactly why young adolescents are, or
should be, denied certain legal rights and
privileges traditionally accorded to adults. In
Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035
(1979), for example, the Supreme Court articulated
its rationale for refusing to equate the
constitutional rights of children with those of
adults, stating:

[T]he Court has held that the States validly may
limit the freedom of children to choose for
themselves in the making of important, affirmative
choices with potentially serious consequences.
These rulings have been grounded in the recognition
that, during the formative years of childhood and
adolescence, minors often lack the experience,
perspective, and judgment to recognize and avoid
choices that could be detrimental to them.

Id. at 635, 99 S. Ct. at 3044 (emphasis added).
Indeed, most minors simply have not gained
sufficient knowledge and experience in the affairs
of life to exercise sound discretion and judgment.
Behavioral scientists have likewise contributed to
the cause of understanding what underlies society’s
belief that adolescents are poor decision-makers,
and concluded that it may very well be attributable
to minors’ regular participation in dangerous
activities, despite their appreciation of the risks
involved. See Elizabeth Cauffman & Laurence
Steinberg, The Cognitive and Affective Influences
on Adolescent Decision-Making, 68 Temp. L. Rev. 1763,
1767, 1772 (1995). This stems, in large part, from
"the adolescent[’s] . . . view [of] himself or
herself as unique and, moreover, invulnerable to
harm." Id. at 1767 (emphasis added) (citing Daniel
K. Lapsley & Michael N. Murphy, Another Look at the
Theoretical Assumptions of Adolescent Egocentrism,
5 Developmental Rev. 201, 214-15 (1985)). It follows,
then, that when a minor student sexually harasses
his peer, he does not do so for want of knowledge
that such behavior is wrong or socially
unacceptable, but rather because of his cavalier
attitude towards risk and a false inner sense of
invincibility. School administrators have been, and
shall continue to be, unable to alter this innate
risk-loving nature of teenagers, and there is
little reason why they should be burdened with this
assignment when it comes to student-on-student
sexual harassment.

The policies which underlie our law’s prohibition
against the participation of minors in those
activities set forth above (i.e., voting, etc.)
also argue against imposing Title IX liability for
peer-on-peer harassment. I harken back to what the
Supreme Court said in Bellotti--"that, during the
formative years of childhood and adolescence,
minors often lack the experience, perspective, and
judgment to recognize and avoid choices that could
be detrimental to them." Bellotti, 443 U.S. at 635,
99 S. Ct. at 3044. That is, the law wisely limits
the decision-making ability of minors when the
exercise of their own poor judgment creates costs
which fall primarily on themselves. Our modern
society is a litigious one, and although the cost
of peer-on-peer harassment under Title IX will be
borne by the school systems (vis-a-vis "deep-
pocketed" taxpayers), it is the students who will
ultimately suffer through reduced funding in their
educational pursuits--this is precisely the type of
situation in which the law should protect minors
from their own foolish judgments. The fact of the
matter is that Congress has enacted Title IX, and
we have interpreted the statute to mandate that
courts, in certain circumstances, not equate peer-
on-peer sexual harassment with consenting to
surgical procedures and the like. There is no
reason to infer, however, from existing case law or
legislative history that we must construe Title
IX’s text as broadly as possible, much as the
majority has attempted herein. As I noted in Smith,
being a reviewing federal appellate court, in
contradistinction to a lawmaking body, "’we resolve[]
. . . ambiguit[ies] not by invoking some policy
that supersedes the text of the statute,’ but
rather by limiting ourselves to that meaning which
a given text will reasonably bear." Smith, 128 F.3d
at 1041 (Coffey, J., concurring).

Finally, I wish to point out that, contrary to
what one might be led to believe by the majority
opinion’s heavy reliance on Title VII (see Maj. Op.
at 24-27), this Court is not retreating from its
position in Smith that Title IX and Title VII are
not analogous statutes, and as such, the latter
should not be used to enlighten our analysis under
the former except in very limited circumstances. In
Smith, we explained in unequivocal language that
"it is helpful to look to Title VII to determine
whether the alleged sexual harassment is severe and
pervasive enough to constitute illegal
discrimination on the basis of sex for purposes of
Title IX," Smith, 128 F.3d at 1023, but went on and
clearly stated that there existed no
"’justifi[cation for] the importation of other
aspects of Title VII law into the Title IX
context.’" Id. (quoting Rosa H., 106 F.3d at 653).
Thus, in light of Smith, which is the law of this
Circuit, it is plainly improper for the majority to
suggest that "[t]here is no reason why students
such as Jane Doe should be afforded a lesser degree
of protection against . . . ’hostile environment’
discrimination than adult workers in the employment
setting regulated by Title VII." Maj. Op. at 24.
Intentional discrimination under Title IX is
measured vis-a-vis an "actual knowledge" standard,
whereas "the standard for employer liability [under
Title VII] in cases of hostile-environment sexual
harassment by a supervisory employee is negligence
[(i.e., "knew or should have known")]." Jansen v.
Packaging Corp. of America and Ellerth v.
Burlington Indus. Inc., 123 F.3d 490, 495 (7th Cir.
1997) (en banc) (per curiam), cert. granted in part
by Burlington Indus., Inc. v. Ellerth, 118 S. Ct.
876 (Jan. 23, 1998). These are two very separate
and distinct tests which afford different degrees
of protection to those individuals who bring claims
pursuant to Title IX and Title VII. It follows then
that Doe should not, as the majority now proposes,
be entitled to the same degree of protection under
Title IX as adult workers are in the employment
setting under Title VII.

Because I am confident that Doe will not be the
last student-on-student sexual harassment case to
come before this Court, I close with the concern
that the majority opinion, which I join only in
part, has attempted to open the gates to Title IX
liability wider than that statute’s language
reasonably allows, and it shall only be a matter of
time before the floodwaters of litigation begin to
rise. Allegations of peer-on-peer harassment are
being levied at a fevered pitch even in the primary
grades, and oftentimes for conduct that is nothing
more than "child’s play." Indeed, only one year ago
a six-year-old, North Carolina first-grader was
accused of sexual harassment after he kissed a
female classmate. See Linda Chavez, Feminist Kiss
Patrol is on the March, USA Today, Oct. 2, 1996, at
15A. More recently, school officials in Pittsburgh
suspended a ten-year-old, fourth-grade student for
two days because he, as his two "victims" put it,
grabbed one of them from behind and subjected the
other to an unwanted hug. Kid Stuff a Silly Sexual
Harassment Charge Against a 10-Year-Old, Pittsburgh
Post Gazette, Sept. 25, 1997, at A22. My point is
simply that, absent Congressional or Supreme Court
guidance in this area of the law, we must be
mindful to approach it with an application of
common-sense, combined with utmost reflection and
study, so as not to let it get "out of control" for
those individuals who must live by its mandate.

In Jansen, 123 F.3d at 543 (Coffey, J.,
concurring in part and dissenting in part), I noted
that "[j]ust as the ill-advised expansion of the
law in the [medical malpractice and products
liability] areas has worked to the detriment of the
average American citizen, so too will the expansion
of employer liability in the Title VII context."
The same goes for Title IX, but it will not just be
the "average American citizen" who suffers in the
form of higher taxes, for children in public
schools are the ultimate recipients of federal
educational funding--they are also the ones who
lose when those monies are withheld. The cost of
making school authorities guardians of acceptable
social behavior outside of school-sponsored
activities could be devastating, for Title IX,
unlike Title VII, does not include a statutory
ceiling on recoverable monetary damages. See 42
U.S.C. sec. 1981a(b)(3). In fact, merely defending
against a multi-million dollar Title IX lawsuit can
mean the difference between hiring five new
teachers and discharging five existing ones,
purchasing upgraded computers and making do with
outdated machines, or expanding the library’s
collection and dropping a remedial reading program.
I find it troubling that an emotionally-immature
minor student has the ability to make this
difference, thereby depriving his innocent peers of
valuable learning opportunities. A very recent
study by the International Association for the
Evaluation of Educational Achievement revealed that
our Nation’s eighth-graders currently rank only
twenty-eighth out of forty-one developed countries
around the world in mathematics, and only
seventeenth in science. See Peter Applebome, U.S.
Students Just Average in Math, Science Rankings at
a Glance, N.Y. Times, Nov. 21, 1996, at N1. A
"National Report Card" on the condition of public
education in the fifty states, released on January
8, 1998, likewise relates some discouraging news--
America’s schools are not "making the grade." See
Quality Counts ’98, Educ. Wk., Jan. 8, 1998. Overall,
the states received a "C+" grade for the amount of
resources they allocated to education./14 Id. at
3. How can this be when most states are devoting
more funds to education today than they did ten
years ago? Id. The answer is simple: "too few of
the additional dollars have reached classrooms."
Id. (emphasis added). The easier it is to reach
into our schools’ coffers under Title IX, the
faster these statistics shall plummet, and, in
turn, the sooner we will have to bear the burden of
a tragically undereducated society.

I do recognize that student-on-student harassment
is a most serious issue, and echo the sentiments I
expressed in my Smith concurrence, that "I am
unalterably opposed to sexual harassment, which is
both intolerable and wrong." Smith, 128 F.3d at
1041 (Coffey, J., concurring). And although perhaps
the most appropriate forum to educate children on
the iniquitousness of harassment, whether sexual or
otherwise, is in the home, the fact of the matter
is that Congress, by enacting Title IX, has placed
the responsibility on educators to insure that it
not be tolerated, and does not persist, in our
schools. It is my belief that the "actual
knowledge" standard, coupled with the ideas
articulated herein, accurately captures the
"intentional discrimination" which Title IX seeks
to prohibit.

FOOTNOTES

/1 The majority incorrectly states that "today’s
holding is inconsistent with the decisions of two
of the three other courts of appeals that have
directly addressed the issue" of Title IX liability
for student-on-student sexual harassment. Maj. Op.
at 15. Because this Court has adopted the
aforementioned "actual knowledge" test in Title IX
cases, our holding should be contrasted with, as
opposed to likened to, all three of the decisions
of those circuits, as neither the Fifth nor
Eleventh circuit recognizes Title IX liability for
peer-on-peer harassment, while the Fourth Circuit
implores a negligence-based "knew or should have
known" standard.

/2 As we all know, public school systems can pick and
choose to employ whomever they wish as teachers and
"filter out" any applicants with histories of
sexual misconduct, while on the other hand they
must educate every qualified child within their
respective districts. Moreover, whereas adult
educators have, or should have, the emotional
maturity and experience to know what type of
conduct oversteps the bounds of socially acceptable
behavior, children, because of their youth, more
often than not do not have the ability to exercise
such sound judgment.

/3 Although we conclude today that Title IX was
enacted pursuant to its Spending Clause powers as
well as Section 5 of the Fourteenth Amendment, the
fact remains that the statute prohibits intentional
discrimination only.

/4 Because it is the threshold inquiry under Title IX,
and is implicit in the discussion throughout the
remainder of this opinion, I see no need to
repeatedly reference the requirement that an
educational institution must possess actual
knowledge of alleged
sexual harassment before Title IX liability might
attach.

/5 I am well aware, however, that an educational
institution’s pattern of "negligent" responses to
complaints of peer-on-peer sexual harassment (i.e.,
responses that fail to evidence an endorsement of
harassment) might under certain circumstances
conceivably rise to the level of intentional
discrimination. See, e.g., Wellman v. Faulkner, 715
F.2d 269, 272 (7th Cir.), cert. denied, 468 U.S.
1217, 104 S. Ct. 3587 (1983) (recognizing that a
pattern of negligent responses can evidence
"deliberate indifference").

/6 The majority hints that a school’s response to
complaints of harassment will only constitute
"intentional discrimination" if it demonstrates an
intent to foster a sexually hostile environment by
stating that:

the combination of knowledge that sexual harassment
is occurring in places or activities under the
school’s control and intentional failure to take
prompt, appropriate action (such as investigation
and, if warranted, disciplinary measures) is
presumably, perhaps even necessarily, a
manifestation of intentional sex discrimination.
After all, what other good reason could there
possibly be for refusing even to make meaningful
investigation of such complaints . . . .

Maj. Op. at 18-19 (citation omitted).

/7 Because I am of the opinion that intentional
discrimination is manifested in a school’s
disparate treatment of female and male sexual
harassment complaints, I agree with the Fifth
Circuit’s Rowinski decision to the extent that it
concluded "a school district might violate title
[sic] IX if it treated sexual harassment of boys
more seriously than sexual harassment of girls, or
even if it turned a blind eye toward sexual
harassment of girls while addressing assaults that
harmed boys." Rowinski, 80 F.3d at 1016. I
disagree, however, with Rowinski’s suggestion that
this is the only way in which a plaintiff can
demonstrate intentional discrimination under Title
IX. The majority fails to make clear whether it
objects to Rowinski in toto, including the
"disparate treatment" concept, or if it, like
myself, criticizes that case for simply being too
limited in scope.

/8 "It is well settled law that departures from
established practices may evince discriminatory
intent." Nabozny v. Podlesny, 92 F.3d 446, 455 (7th
Cir. 1996) (citing Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.
Ct. 555, 564-65 (1977)). And Title IX regulations
presently require schools to adopt and publish
grievance procedures for prompt and equitable
resolution of sexual discrimination and/or
harassment complaints, and to disseminate policies
prohibiting such conduct. See 34 C.F.R. sec. 106.8.
Thus, it in all probability would not be difficult
for a trier of fact to determine whether school
officials had "departed from established
practices," and, resultingly, intentionally
discriminated against a particular plaintiff, in
violation of Title IX.

/9 Whereas a Title IX claim can only be brought
against a grant recipient and not an individual,
Smith, 128 F.3d at 1018-19, an action brought
pursuant to sec. 1983 may lie against individuals.

/10 Of course, this Circuit now recognizes that "a
plaintiff may not claim that an instance of
intentional discrimination simultaneously creates
causes of action under Title IX and under sec. 1983
and the Equal Protection Clause of the Fourteenth
Amendment; the availability of a Title IX claim
precludes the pursuit of a sec. 1983 claim."
Merrill Area Pub. Sch., 91 F.3d at 862 (citing
Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d
168 (3rd Cir. 1993), cert. denied, 510 U.S. 1043,
114 S. Ct. 689 (1994)).

/11 This example further assumes, of course, that
school officials possessed actual knowledge that
the harasser had previously engaged in harassing
conduct.

/12 Because courts typically refer to individuals below
the age of eighteen as "minors," see, e.g., Behnke
v. Behnke, 103 Wis. 2d 449, 309 N.W.2d 21 (Ct. App.
1981), whereas developmental psychologists
sometimes allude to them under the label,
"adolescents," I shall use the two terms
interchangeably when referring to children under
eighteen years of age.

/13 A minor may, of course, enter into a contract with
another, but "it is settled law . . . that a
contract of a minor for items which are not
necessaries is void or voidable at the minor’s
option." Halbman v. Lemke, 99 Wis. 2d 241, 245, 298
N.W.2d 562, 564 (1980) (citations omitted).

/14 The "report card" also issued the following overall
state grades for the three respective categories:
"Standards and Assessments"--(B); "Quality of
Teaching"--(C); "School Climate"--(C-).

EVANS, Circuit Judge, concurring. I am pleased to
join Judge Cummings’ splendid opinion. I write
separately only to offer a few observations as this
case returns to the district court for further
proceedings. Our bottom line is, as Judge Cummings
writes, "that a Title IX fund recipient may be held
liable for its failure to take prompt, appropriate
action in response to student-on-student sexual
harassment that takes place on the recipient’s
grounds or while its students are involved in
school activities, provided the recipient’s
responsible officials actually knew that the
harassment was taking place." (Slip op. at 15.) I
support this holding and have nothing to add to
Judge Cummings’ effective analysis of why the Fifth
and Eleventh Circuits’ contrary view is flawed. But
the devil here will be in the details.

It is vitally important to emphasize that this
case is on appeal following a dismissal for failure
to state a claim under Rule 12(b)(6). As such, we
are required to assume all facts in the complaint
to be true, but of course we cannot and do not
vouch for their accuracy. The complaint in this
case is a sprawling document--21 pages peppered
with 114 separately numbered paragraphs. Seventy-
one of the paragraphs are under the heading
"Facts." Although the complaint is excessively long
and unnecessarily detailed, its gist is that our
plaintiff, while a student at University High,
faced an unrelenting campaign of verbal and
physical sexual harassment perpetrated by a group
of male students at the school and that the school
officials did little or nothing to address the
chaotic situation. What troubles me, and what will
have to be addressed by the district court upon
remand, is just what exactly did the school do here
to address the situation and was what it did
enough? The complaint, and the concession at oral
argument that Judge Cummings notes (slip op. at
29), give a hint that the school did something to
ameliorate the situation--it suspended two boys.
Tested later on summary judgment, that just might
turn out to be enough to satisfy our command that
a school must take "prompt and appropriate" action
to combat known sexual harassment.

Schools do not have to eliminate sexual
harassment by students upon other students. That
would be an impossible task, for schools are full
of all sorts of kids, and every school has its
share of buffoons, yokels, and dunderheads of all
stripes. And unlike harassers in the work place,
students can’t be fired. Schools are also full of
kids with raging hormones who may be crude and
insensitive when dealing with students of the
opposite sex. So although I agree that Title IX
requires schools receiving federal funds to be
engaged in combating student-on-student sexual
harassment, what I think is required is that a
school not turn a blind eye to a sexually hostile
environment. Considerable deference, I believe,
must be given to schools in meeting these demands,
and a wide range of reasonable responses should be
permitted.

Statement of Easterbrook, Circuit Judge, respecting
the denial of rehearing en banc. The panel
circulated its opinion before release under Circuit
Rule 40(e) so that we could decide whether to
create a conflict among the circuits on the
question whether the eleventh amendment to the
Constitution, as understood in Seminole Tribe v.
Florida, 116 S. Ct. 1114 (1996), prevents Congress
from providing that suits under Title IX of the
Education Amendments of 1972, 20 U.S.C. secs.
1681-88, may be heard in federal court. Our panel
holds that Title IX is based in part on the
fourteenth amendment, so that the principle of
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976),
applies. Sex discrimination by public schools is a
subject within the legislative power under sec.5 of
the fourteenth amendment, and Congress need not
catalog the grants of power under which it
legislates; courts do not remand statutes for
better statements of reasons. None of the active
judges questions the panel’s decision on this
issue.

After the panel circulated its draft opinion,
some judges expressed concern about a different
question: under what circumstances does inaction by
a public school that has received reports of one
pupil’s misconduct toward another amount to sex
discrimination? Taking sides in a second conflict
among the circuits, the panel held that failure to
protect pupils from private aggression is a species
of discrimination. This is the original meaning of
equal protection of the laws. If a state protects
white or male residents against crimes (or torts),
it must protect the black or female residents as
well. Some courts of appeals seem to have forgotten
this, but the panel has not--and again none of the
active judges favors review of this question by the
full court. What has led to the dissent from the
majority’s decision to let the panel issue its
opinion is not a belief that we should follow one
of the other circuits but concern about how to
implement the principle that schools must protect
their female pupils against private assaults. What
level of knowledge is required? How effective must
intervention be? These are difficult questions, on
which Title IX offers no guidance--and on which
none of the other circuits has yet offered a view.

One would suppose from 20 U.S.C. sec.1682 that
issues posed but not answered by Title IX are to be
resolved by the federal aid-granting agencies,
after their regulations have been reviewed by the
President, with judicial review to follow under 20
U.S.C. sec.1683. Use of a private right of action
for damages to short-circuit this deliberately
cumbersome process not only replaces administrative
negotiation with damages liability (the source of
the dissent’s principal concern) but also leaves
the court substantively at sea. Is it wise to jump
the gun in this fashion? Why not say that, until
regulations have specified vital details, damages
are inappropriate? Cf. Blessing v. Freestone, 117
S. Ct. 1353 (1997). Although Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992), holds
that there is an implied private right of action
for damages to enforce Title IX (an action directly
under Title IX, not via 42 U.S.C. sec.1983 and
Maine v. Thiboutot, 448 U.S. 1 (1980)), it does not
command the inferior courts to award damages in
problematic cases before school districts know what
is expected of them. Franklin and its precursor
Cannon v. University of Chicago, 441 U.S. 677
(1979), are about remedies: they add private
damages to the statutory approach of terminating
federal funding. Cannon infers the remedy from the
right; it does not dispense with the need to find
a right clear enough to be enforceable. Rulemaking
under sec.1682, rather than adjudication, should be
the source of gap-filling rules. Otherwise the
remedy breeds its own right. Notice-and-comment
rulemaking with approval of the President, not
events-and-damages "rulemaking" in common law
fashion, is the method specified in sec.1682. The
absence of rules defining with precision the
schools’ obligations counsels hesitation, even if
it does not foreclose damages.

As a standard that school districts must satisfy
until regulations have been issued--alternatively,
that pupils must meet if they want damages as
opposed to administrative relief--Chief Judge
Posner’s proposal makes a great deal of sense. But
I do not think it necessary or appropriate to hear
this case en banc, for we do not know whether the
choice of standard matters. Anything we say on the
subject may be advisory--and unnecessary too, for
none of the three judges on the panel clearly
rejects an analogy to the deliberate-indifference
standard under Farmer v. Brennan, 511 U.S. 825
(1994). Our last effort to resolve an issue of this
kind in the abstract did not fare well. See Jansen
v. Packaging Corp. of America, 123 F.3d 490 (7th
Cir. 1997) (en banc), cert. granted under the name
Burlington Industries, Inc. v. Ellerth, 118 S. Ct.
876 (1998). After we have learned how (if at all)
the differences among standards matter, and the
parties have had an opportunity to brief the
subject with a recognition of its significance, we
will be able address the question, if that still
appears to be necessary. It would be premature to
hear this issue en banc now.

Posner, Chief Judge, with whom Flaum and Manion,
Circuit Judges, join, dissenting from denial of
rehearing en banc. The issue of a school’s
liability under 20 U.S.C. sec. 1681(a) (which
forbids sex discrimination by schools that receive
federal financial aid) for the sexual harassment of
one student by another is well worth the attention
of the full court, quite apart from the issue of
intercircuit conflict. The potential liabilities of
the nation’s schools, already financially hard-
pressed, are staggering, since insults, teasing,
petty persecutions, grabbing, poking, sexual
experimentation, and other forms of what might
actually or arguably constitute sexual harassment
are an omnipresent feature of school life.
Liability for failing to prevent or rectify sexual
harassment of one student by another places a
school on a razor’s edge, since the remedial
measures that it takes against the alleged harasser
are as likely to expose the school to a suit by him
as a failure to take those measures would be to
expose the school to a suit by the victim of the
alleged harassment.
 I tentatively favor the adoption of a standard of
liability that would give schools substantial
protection against being sued for failing to guess
right about the proper management of sexual and
related nastiness among their charges. That is the
standard of "deliberate indifference," and I shall
explain it in a moment. The clearest alternative,
the negligence standard, would not give the schools
sufficient protection. The panel acknowledges this;
none of its members endorses the negligence
standard. Judge Cummings’ opinion adopts a hybrid
standard: the school must have actual knowledge of
the harassment; but if it does, then it is liable
(as I read the opinion) if it fails to respond with
"prompt and appropriate action." This could mean,
if it acts negligently. This would still not be the
negligence standard, because that standard does not
require knowledge of the risk; that is why I call
Judge Cummings’ standard a hybrid. Some language in
his opinion, however, suggests a higher standard
than simple negligence to govern the school’s
response to knowledge of a risk ("courts should not
second-guess the professional judgments of school
officials"), as does the language of Judge Evans’
concurrence. Judge Coffey would limit liability to
instances in which the school’s misconduct can
fairly be described as intentional, an approach
very similar to deliberate indifference. It is
unclear how much real "space" there is between the
positions of Judges Cummings and Evans on the one
hand and Judge Coffey on the other; it is not even
clear that Judges Cummings and Evans see completely
eye to eye; nor is what I have described as the
hybrid standard sufficiently clear, precise, or
familiar to provide sure guidance to school
officials and their lawyers.

We need to consider the important issue of the
proper standard as a court. The hybrid standard is
a possibility but would have to be more clearly
defined to be serviceable. Simple negligence is
another possibility, gross negligence a third. The
statute does not say. We must choose. My tentative
preference is for the standard of deliberate
indifference. Title IX in general and section
1681(a) in particular are not designed to create a
comprehensive and stringent new regime for the
regulation of sexual harassment in schools but to
create sex equality in educational programs and
facilities. The analogy to Title VII is deceptive,
since Title VII regulates the behavior of adults in
the workplace rather than the inevitably unruly
behavior of adolescents. It may be excessive
intrusion into the management of the schools for
the courts to sanction them for failing to prevent
the harassment of one student by another unless the
school’s failure can fairly be described as
intentional.

Three types of intentional failure can be
distinguished. The first, which must be very rare,
is where the school wants the harassment to occur.
The second is where the school deliberately treats
harassment differently depending on the sex, race,
etc. of the pupils involved. There too, liability
is clear. The third and most difficult case is
where the school knows about the harassment, knows
that it is serious or even dangerous, and could
take effective measures at low cost to avert the
danger, but decides--consciously, deliberately--to
do nothing, although it does not base this decision
on an invidious ground such as race or sex. The
school doesn’t mean any harm to the victim of the
harassment, but knowing that the harassment is
occurring, is serious, etc., it decides to do
nothing. An example mentioned in Judge Coffey’s
opinion is where the school deliberately departs,
without adequate excuse, from its established
policy in dealing with such incidents.

This difficult third case is the domain of
"deliberate indifference," which is the equivalent
of criminal recklessness. E.g., Farmer v. Brennan,
511 U.S. 825 (1994); West v. Waymire, 114 F.3d 646,
651 (7th Cir. 1997). Neither gross negligence, nor
recklessness in the tort sense, is enough to
satisfy this standard. E.g., Billman v. Indiana
Department of Corrections, 56 F.3d 785, 788 (7th
Cir. 1995); Sellers v. Henman, 41 F.3d 1100 (7th
Cir. 1994). The standard of deliberate indifference
has been invoked in a number of other school cases.
Kinman v. Omaha Public School District, 94 F.3d
463, 467 (8th Cir. 1996); Doe v. Claiborne County,
103 F.3d 495, 508 (6th Cir. 1996); Doe v. Taylor
Independent School District, 15 F.3d 443, 454 (5th
Cir. 1994). Two of these cases also impose a
negligence standard for misconduct by the teacher;
that is an issue currently before the Supreme
Court.

Deliberate indifference by the school in a case
of one student sexually harassing another would
mean that the school (1) actually knew of (2)
hostile or offensive conduct likely to interfere
with the victim’s education, and (3) deliberately
did nothing, or took steps that it knew would be
ineffectual, to protect the victim, (4) without
excuse (for it might be difficult or even
impossible to take effective measures). Elements
(1) and (4) will both be more difficult for the
plaintiff to satisfy when the harassment occurs off
the school premises; and that is how it should be
because it is much more difficult for the school to
discover and remedy off-premises harassment.

Through careful examination of alternative
standards of liability, we can find the standard
that will best fit the purposes and circumstances
of Title IX and that will be simple and workable.
That is a challenge well worth the court’s plenary
consideration.