dissenting.
This case presents the question whether the plaintiffs, “Jane Doe” and “Janet Doe,” eighth grade students in a school system receiving federal funds, may maintain a federal court action under Title IX of the Educational Amendments, 20 U.S.C. § 1681, for monetary damages, a declaratory judgment and injunctive relief against the school board. The plaintiffs alleged and showed that the board failed to take appropriate corrective action after it received knowledge of the plaintiffs’ sexual harassment by male students that created for the plaintiffs a hostile educational environment. The district court granted the school board’s motion for summary judgment, holding that Jane and Janet Doe had failed to state a claim because they did not allege or show that the board discriminated against them by affording male students greater protection from sexual abuse than females. The majority of this panel affirms, holding similarly, that “[i]n the case of peer sexual harassment, a plaintiff must demonstrate that the school district responded to sexual harassment claims differently based on sex. Thus, a school district might violate title 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.” Maj. op. at 1016. Because I believe that the *1017plaintiffs have stated valid claims for the relief requested under Title IX, and are entitled to proceed to trial thereon,11 respectfully dissent.2
I.
In reviewing the district court’s grant of summary judgment, this court applies the same standard of review as the district court. Garcia v. Elf Atochem North America, 28 F.3d 446, 449 (5th Cir.1994), Jurgens v. E.E.O.C., 903 F.2d 386, 388 (5th Cir.1990). The pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, must demonstrate there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. Under this standard, factual findings and inferences are considered with deference to the non-movant. Garcia, 28 F.3d at 449.
The facts emerging from the pleadings and motion for summary judgment filings are set forth in detail in the majority opinion. There can be no doubt that these facts, viewed in the light most favorable to the plaintiffs for purposes of our summary judgment review, demonstrate that the school board knowingly failed to take appropriate steps to protect Jane and Janet Doe from sexual harassment, abuse and discrimination by male students that was sufficiently severe or pervasive as to create a hostile and abusive educational environment for the plaintiffs. Neither the district court nor the majority express disagreement with this conclusion. Their decisions rather are that as a matter of law female students do not have a right of action under Title IX against any educational institution receiving federal funds on the ground that the institution has knowingly allowed male students to create a hostile educational environment by sexual harassment of those students.
II.
™e IX of the Education Amendments Act of 1972 prohibits sex discrimination in any educational program or activity receiving federal financial assistance:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance....
20 U.S.C. § 1681(a). It is undisputed that at the time of the sexual harassment and abuse of the plaintiffs the school board was an educational program receiving federal financial assistance.
Supreme Court precedent interpreting the scope of Title IX establishes that the statute creates a broad federal protection privately enforceable by beneficiaries of the act. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that Title IX is enforceable through an implied right of action by certain classes of private parties. The Court applied the four factors set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975), for analyzing whether a private right of action is to be implied under a federal statute: (1) is the plaintiff one of the class for whose especial benefit the statute was enacted? (2) is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? and (4) is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal *1018law? The Court concluded that notwithstanding Title IX’s failure to expressly authorize a private right of action, a woman who, because of her sex, is denied admission to an education program of an institution which receives federal financial assistance may maintain a federal action for violation of Title IX, since a woman who is discriminated against on the basis of sex is a member of the class for whose especial benefit Title IX was enacted; the legislative history indicates Congress’ intent to create a private cause of action for a person excluded, on the basis of sex, from participation in a federally funded program; implication of a private remedy under Title IX is fully consistent with the orderly enforcement of Title IX; and the subject matter of private action under Title IX (invidious sex discrimination) does not involve an area basically of concern to the States. Having determined that private remedies are available under Title IX, the Court ended its analysis and refrained from addressing the specific types of private remedies available. Id. at 709, 717, 99 S.Ct. at 1963, 1968.
More recently, in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Supreme Court addressed the issue of remedies and held that the implied private right of action under Title IX includes a right to a claim for money damages. In Franklin, the plaintiff, a female high school student, filed suit under Title IX against a county school board receiving federal funds, alleging that she had been subjected to continual sexual harassment and abuse by a teacher and that, although administrators and other teachers became aware of and investigated the teacher’s sexual harassment of her and other female students, no action was taken to halt the abuse and she was discouraged from pressing charges against the teacher. The district court dismissed the complaint on the ground that Title IX does not authorize an award of damages. The court of appeals affirmed. Franklin v. Gwinnett County Public Schools, 911 F.2d 617 (11th Cir.1990), rev’d by 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).
The Supreme Court reversed, basing its holding that a damages remedy is available for an action brought to enforce Title IX primarily on the longstanding general rule that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute. Franklin, 503 U.S. at 66-68, 112 S.Ct. at 1032-34 (citing, inter alia, Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).3 In examining Title IX to determine whether Congress had limited the remedies available, the Court observed that because the Cannon Court inferred a cause of action upon concluding that Title IX provided no express right of action, the silence of the pr e-Cannon statutory text and legislative history on the issue of available remedies is neither surprising nor enlightening. Rather, the appropriate inquiry for the pr e-Cannon period is the state of the law when Congress passed Title IX. Because, at that time, the traditional presumption in favor of all available remedies was firmly established, and the Court, in the decade prior to Title IX’s enact*1019ment, had found implied rights of action in six cases and approved a damages remedy in three of them, the Court concluded that the lack of any legislative intent to abandon the traditional presumption was amply demonstrated. For the post-Cannon period, when Congress was legislating with full cognizance of that decision, the Court’s analysis of the text and history of the two statutes enacted to amend Title IX — the Civil Rights Remedies Equalization Amendment of 1986 and the Civil Rights Restoration Act of 1987— established that Congress validated Cannon’s holding and made no effort to alter the traditional presumption. See Franklin, 503 U.S. at 70-75, 112 S.Ct. at 1035-37.
In unanimously upholding the plaintiffs private cause of action,4 moreover, the Franklin Court necessarily must have concluded that under the Cannon-Cort v. Ash analysis high school students whom the school board knowingly allows to be subjected to sexual harassment and abuse deleteriously affecting their educational environment are persons who have been discriminated against on the basis of sex and are therefore members of the class for whose especial benefit Title IX was enacted, for whom Congress intended to create a private cause of action, for whom implication of a private remedy under Title IX is fully consistent with its orderly enforcement, and that the subject matter of their private action under Title IX does not involve an area basically of concern to the states.
Most important to the ease at bar, however, the Franklin Court interpreted Title IX as placing on the school board a duty not to discriminate on the basis of sex, by knowingly failing to take appropriate corrective action when a male teacher has sexually harassed .and abused a female high school student and thereby created for her a hostile educational environment. The Court elaborated on this subject in rejecting the argument by the board and the government that the Court should not apply the traditional presumption in favor of appropriate relief because Title IX was enacted pursuant to Congress’s Spending Clause power.5 The Court explained:
In Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 [101 S.Ct. 1531, 67 L.Ed.2d 694] (1981), the Court observed that remedies were limited under such Spending Clause statutes when the alleged violation was unintentional. Respondents and the United States maintain that this presumption should apply equally to intentional violations. We disagree. The point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be hable for a monetary award. See id. at 17, 67 L.Ed.2d 694, 101 S.Ct. at 1540. This notice problem does not arise in a case such as this, in which intentional discrimination is alleged. Unquestionably, Title IX placed on the Gwinnett County Schools the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 91 L.Ed.2d 49, 106 S.Ct. 2399 [2404] (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal monies to be expended to support the intentional violations it sought to proscribe.
Franklin, 503 U.S. at 75, 112 S.Ct. at 1037. (Underscoring supplied; italics in original).
Accordingly, the Supreme Court in Franklin not only recognized a right to money *1020damages as a remedy available under a private right of action based on an intentional violation of Title IX; the Court also acknowledged that an educational institution receiving federal funds intentionally violates Title IX and engages in sex discrimination against which the statute affords protection when it knowingly fails to take reasonable steps within its power to prevent the sexual harassment or abuse of a student by a teacher that is so severe or pervasive that it creates a hostile and harmful school atmosphere for that student. By citing Meritor Savings Bank, in which the Court held that a claim of “hostile environment” sex discrimination is actionable under Title VII, as analogous precedent for its interpretation of Title IX, the Court indicated that standards similar to those applied or adverted to in Meritor are appropriate criteria for determining when there has been a violation of Title IX giving rise to a claim of “hostile environment” sex discrimination.6
As explained in Meritor, as well as antecedent cases and EEOC Guidelines discussed therein, an employer’s liability for “hostile environment” sex discrimination generally is based on the employer’s failure to take reasonable corrective measures after receiving knowledge that an employee is being subjected to sexual harassment or abuse in the work environment by co-workers (or non-employees over whom the employer has a degree of control or legal responsibility). In other words, employer liability for hostile environment harassment by coworkers and non-employees under Title VII is predicated on the employer’s failure to act in accordance with its statutory duty not to discriminate in the workplace on the basis of “race, color, religion, sex or national origin” with respect to its “terms, conditions, or privileges of employment,” 42 U.S.C. § 200e-2(a)(1), by requiring an employee to work in an environment permeated with “discriminatory intimidation, ridicule, and insult ... sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment....”7 Harris v. Forklift Systems, Inc., — U.S.-,-, 114 S.Ct. 367, 370, *1021126 L.Ed.2d 295 (1993) (quoting Mentor, 481 U.S. at 65, 67, 106 S.Ct. at 2404-2405, 2405). Consequently, the Franklin Court’s recognition of this type of claim under Title IX necessarily indicates that a student subjected to severe sexual harassment by other students in the school environment may recover for damages sustained thereby from a federally funded educational institution if its board had knowledge of the harassment and failed to take appropriate corrective action.
In Mentor, the Supreme Court addressed for the first time a number of issues relating to Title VII hostile environment sexual harassment claims. Although the case involved a female bank employee who was allegedly subjected to sexual harassment by her male supervisor, and therefore did not directly address sexual harassment by non-supervisory employees or non-employees, some of the principles enunciated by the Court apply generally to all cases in which discrimination based on sex creates a hostile or abusive work environment. The Court held that unwelcome sexual advances that create an offensive or hostile working environment may violate Title VII, and that when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor discriminates on the basis of sex. This proposition was not challenged by any party in the case. It is implicit in the Court’s opinion and explicit in authorities it cited with approval that the same principle applies to sexual harassment by co-workers and even strangers to the workplace: When a nonsupervisory employee or non-employee sexually harasses an employee, that co-worker or non-employee likewise discriminates on the basis of sex.
The Meritor Court noted that in 1980 the EEOC issued Guidelines specifying that sexual harassment, as there defined, is a form of sex discrimination prohibited by Title VII; and that as an administrative interpretation of the Act by the enforcing agency, these Guidelines, while not controlling on the courts by reason of- their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. In defining “sexual harassment,” the Court observed, the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, 29 C.F.R. § 1604.11(a) (1985), and provide that such sexual misconduct constitutes prohibited sexual harassment, whether or not it is directly linked to the grant or denial of an economic quid pro quo, where such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. § 1604.11(a)(3). The Court found it significant that, in concluding that so called “hostile environment” (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. See Meritor, 477 U.S. at 65-67, 106 S.Ct. at 2404-2406 (citing, inter alia, 45 Fed.Reg. 74676 (1980); Rogers v. EEOC, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972); Henson v. Dundee, 682 F.2d 897 (11th Cir.1982)). In Henson, the Court of Appeals had observed that “[t]he *1022environment in which an employee works can be rendered offensive in an equal degree by the acts of supervisors, coworkers, or even strangers to the workplace. The capacity of any person to create a hostile or offensive environment is not necessarily enhanced or diminished by any degree of authority which the employer confers upon that individual.” Id. at 910 (citations omitted).
Although the Court in Meritor expressly addressed only the subject of sexual harassment by a supervisor of a subordinate, the Court’s heavy reliance on and approval of the EEOC guidelines, as well as the general principles it announced, strongly imply also the Court’s approval of the EEOC Guidelines regarding sexual harassment by non-supervisory co-workers and non-employees. Those Guidelines, in pertinent part, provide:
With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. § 1604.11(d)
An employer may also be responsible for acts of non-employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees. § 1604.11(e)
The rule expressed by the Guidelines pertaining to sexual harassment by non-supervisory co-workers has been uniformly applied by the courts. It is not a controversial area; results in each case simply depend on an interpretation of the facts: whether the employer had sufficient notice, investigated properly, disciplined offenders, and so forth. See 3 Larson, Employment Discrimination § 46.07[4][a] (2d ed. 1995) and authorities cited therein.8 The rule pertaining to non-employees, while involving fewer cases, appears equally uncontroversial. Id. § 46.07[4][b],
In summing up the post-EEOC Guidelines jurisprudence, the Court in Meritor stated:
Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982):
“Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.”
Mentor, 477 U.S. at 66, 106 S.Ct. at 2405 (additional authorities omitted). By the same token, the Court in Franklin evidently recognized that sexual harassment which cre*1023ates a hostile or offensive educational environment for members of one sex is every bit the arbitrary barrier to sexual equality in the educational environment that racial harassment is to racial equality. Surely, a requirement that a male or female junior high school student run a gauntlet of sexual abuse in return for the privilege of receiving an education can be as demeaning and disconcerting as the harshest of racial epithets. Indeed, although the Supreme Court has not yet been presented with a “goose” case, it is difficult to imagine that it would not conclude that the knowing failure to curb student on student sexual harassment is actionable after holding that a knowing failure to eliminate teacher-student sexual harassment is grounds for a Title IX damage suit.
The Supreme Court was not entirely clear, however, about what it meant in Franklin when it said that “[t]he point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award. See [Pennhurst State School and Hospital v. Halderman, 451 U.S.] at 17, 101 S.Ct. at 1539-40. This notice problem does not arise in a case such as this, in which intentional discrimination is alleged.” Franklin, 503 U.S. at 74-75, 112 S.Ct. at 1037. The trouble is that the passage in Pennhurst cited by the Court does not speak expressly in terms of “unintentional violations” or “intentional discrimination.” In Pennhurst, the Court was presented with the issue of whether Section 6010 of the Developmentally Disabled Assistance and Bill of Rights Act (42 U.S.C. § 6010) created in favor of the mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment. After concluding that the Act was enacted solely pursuant to the Spending Clause, the Court reasoned:
Turning to Congress’ power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. Unlike legislation enacted under § 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539-40, 67 L.Ed.2d 694 (1981) (emphasis added).
Because Franklin itself clearly holds that Title IX satisfies the Pennhurst notice requirement in placing a duty on school boards to counteract known hostile environment sexual harassment of students, so that the school board voluntarily and knowingly accepted the terms of the “contract,” and that a board’s failure to perform its duty is an “intentional” violation of Title IX, it is difficult to decipher exactly what the Court meant by the Pennhurst passage. Perhaps the Franklin Court’s discussion of Penn-hurst was only intended to put Congress and other concerned parties on notice that statutes which do not speak as clearly as Title IX in proclaiming 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” might not be construed so as to afford a private right of action for their enforcement. Alternatively, the Court’s expression may have been intended to limit the right of action under Title IX based on hostile environment sexual harassment claims to the situation in which the federal funds recipient has actual knowledge, or perhaps constructive notice (which is its legal equivalent), and fails to take appropriate corrective action, rather than in every situation in which the recipient
*1024“should have known,” in the ordinary negligence sense, of the sexual harassment.
In any event, it is clear from the plaintiffs’ allegations and filings in opposition to the motion for summary judgment that they have stated a claim under Title IX because the facts adduced, viewed most favorably to them, show that the school board had actual knowledge that the plaintiffs were being subjected to sexual harassment and abuse sufficiently severe and pervasive as to create for them a hostile and offensive educational environment, and that the board failed to take appropriate corrective action. Indeed, it would appear that the school board in the case at bar was given as much, if not more, knowledge and notice of the ongoing sexual harassment of the plaintiffs as was given the school board in the Franklin case. When a male student or even a stranger sexually harasses a female student within the school environment under the board’s control, he discriminates on the basis of sex just as much as did the teacher in the Franklin case. Although the Court did not spell out the analogy to Meritor fully by stating that the school board’s failure to take corrective action after gaining actual knowledge of the sexual harassment, this meaning is implicit from the Court’s citation of Meritor. The Supreme Court reversed the court of appeals’ affirmance of the district court’s dismissal of Franklin’s complaint and remanded the case for further proceedings. This court should therefore reverse the district court’s summary judgment against the plaintiffs and remand this case for trial or further proceedings.
Apparently underlying the majority’s conclusion that summary judgment is appropriate here is the incorrect assumption that, in general, school boards have no duty with respect to students’ safety and no power of discipline to control educationally pernicious student conduct. See maj. op. at 1013. Even if the school board had not accepted federal funds, however, it owes a much higher duty to its students and has far greater powers of control over them than that described in the majority opinion. In Vernonia School District 47J v. Acton, —— U.S.-, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Supreme Court held that a school board may require all participants in high school athletic programs to submit to urinanalysis tests for drugs regardless of whether any grounds existed to suspect a particular athlete. As partial justification for granting the board this much disciplinary power over students, the court concluded that while the state does not owe a student the same constitutional duty of protection that it owes a prisoner in its full time custody, the student is nevertheless within the temporary custody of the state while in public school and the state also has a tutelary duty to promote and inculcate good morals, health and self discipline among its students.9 The Court observed that its earlier decision in New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720 (1985)
did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” ... While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” ... we have acknowledged that for many purposes “school authorities ac[t] in loco parentis," ... with the power and indeed the duty to “inculcate the habits and manners of civility,” ... Thus, while children assuredly do not “shed them consti*1025tutional rights ... at the schoolhouse gate,” ... the nature of those rights is what is appropriate for children in schools.
Id., — U.S. at -, 115 S.Ct. at 2392 (emphasis added). See also Johnson v. Dallas Independent School Dist., 38 F.3d 198, 208 n. 7 (5th Cir.1994) (“Schools ... take care of children day after day for years in public facilities. Schools may be said to control children’s environments to the same or even greater degree than state-sponsored foster care services, which have been held, post-DeShaney, to bear affirmative obligations to their client children. * * * That parents yield so much of their children’s care into the hands of public school officials may well be arg-ued to place upon the officials an obligation to protect students at least from certain kinds of foreseeably dangerous harm during regular school hours.”), cert. denied, — U.S. -, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995).
For all of the foregoing reasons, I cannot agree with my colleagues that the school board’s dereliction amounts to nothing more serious in law than the situation in which a bystander witnesses the drowning of a complete stranger. Unquestionably, because the school board has accepted federal financial assistance, Title IX places upon it a duty to take appropriate measures to protect students from being subjected in the school environment to sexual harassment, abuse, and discrimination of which the board has actual knowledge. As Jane and Janet Doe presented evidence sufficient to survive summary judgment that the school board failed to do so here, the district court’s judgment should be vacated and the case remanded for further proceedings.
. In reaching this conclusion, I am in agreement with the only other circuit court to squarely address this issue. See Davis v. Monroe County Board of Education, 74 F.3d 1186 (11th Cir.1996) (holding that “Title IX encompasses a claim for damages due to a sexually hostile educational environment created by a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment.”); see also Bosley v. Kearney R-1 School District, 904 F.Supp. 1006 (W.D.Mo.1995) (recognizing Title IX cause of action against school board for peer sexual abuse where the school board intentionally fails to take proper remedial action).
. I join in the opinion only to the extent that it finds that Mrs. Rowinsky, the mother of Jane and Janet Doe, individually lacks standing under Title IX.
. The Court rejected an argument that the rule had disappeared in succeeding decades, citing several instances of its adherence to the traditional "any available relief” presumption. Discussing Guardians Assn. v. Civil Setvice Comm’n of New York City, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), the Court observed that ("[tjhough the multiple opinions in Guardians suggest the difficulty of inferring the common ground among the Justices in that case, a clear majority expressed the view that damages were available under Title VI [the closely analogous model for Title IX] in an action seeking remedies for an intentional violation, and no Justice challenged the traditional presumption in favor of a federal court’s power to award appropriate relief in a cognizable cause of action.”) Franklin, 503 U.S. at 70, 112 S.Ct. at 1035. The Court also acknowledged that in Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984), it had held that the 1978 amendment to § 504 of the Rehabilitation Act of 1973 — which had expressly incorporated the "remedies, procedures, and rights set forth in title VI” (29 U.S.C. § 794a(a)(2)) — authorizes an award of backpay. Franklin, 503 U.S. at 70, 112 S.Ct. at 1035. It is worth noting that in Darrone, the Court unanimously observed that a majority in Guardians had “agreed that retroactive relief is available to private plaintiffs for all discrimination, whether intentional or unintentional, that is actionable under Title VI.” 465 U.S. at 631 n. 9, 104 S.Ct. at 1253 n. 9 (emphasis added).
. The holding that Title IX implies a right of action for damages by a female student for "hostile environment" sexual harassment was unanimous. In a separate concurring opinion, Justice Scalia, joined by the Chief Justice and Justice Thomas, agreed with the Court’s disposition of the case, observing that "[bjecause of legislation enacted subsequent to Cannon, it is too late in the day to address whether a judicially implied exclusion of damages under Title IX would be appropriate." Franklin, 503 U.S. at 78, 112 S.Ct. at 1039 (Scalia, J., concurring).
. Although the Court noted Franklin’s argument that Title IX also rests on powers derived from § 5 of the Fourteenth amendment, the Court found it unnecessary to decide which power Congress utilized because it had concluded that a money damages remedy is available under Title IX for an intentional violation irrespective of the constitutional source of Congress’ power to enact the statute. See Franklin, 503 U.S. at 75 n. 8, 112 S.Ct. at 1038 n. 8.
. The High Court's acknowledgment in Franklin that a school employee's sexual abuse of students is "unquestionably" sex discrimination prohibited by Title IX, moreover, demonstrates that, under the statute’s broad directive, the term "discrimination” is not limited to the situations, such as admissions, scholarships, hiring and promotions, that appear to have been the focus of the congressional debates on the Educational Amendments. See maj. Op. at pp. 1013-1014] (discussing legislative history). Rather, a student is "excluded from participation in, [] denied the benefits of or subjected to discrimination under,” 20 U.S.C. § 1681, a federally funded program when she is sexually abused by an employee of that program. Further, in finding that a school district can be liable under Title IX for the unauthorized acts of its agents, the Court established that a federally funded program may be liable for conduct extending beyond the practices, policies and decisionmaking directly attributable to it, even though Title IX’s language is not expressly directed to conduct of the program's agents or others.
. In Meritor, the Court held that the court of appeals had erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. The Court observed, howbver, that under agency principles absence of notice to the employer will not necessarily insulate it from liability for a supervisor's sexual harassment. 477 U.S. at 69-73, 106 S.Ct. at 2406-2409. The present case does not require that we address the issue of vicarious liability by the school board because the plaintiffs here have alleged and shown that the school board was itself negligent because it had knowledge of the sexual harassment and failed to take appropriate corrective measures.
The majority states on page 1011, footnote 11, of its opinion that my acknowledgement that an employer is liable for its knowing failure to take reasonable steps to correct co-worker or non-employee harassment "recognizes that employer liability for the acts of non-supervisors is predicated on some theory of agency,” and that my reliance on Franklin is misplaced here because in that case the sexual harassment by a teacher fell within the Meritor framework because a teacher is an agent of the school board. The majority thus suggests that under agency principles, employer liability is necessarily based on some form of vicarious liability. It is certainly recognized under agency principles that a principal may be vicariously liable for the acts of agents under certain circumstances. Nonetheless, agency law also recognizes that direct liability is imposed on principals for their tortious conduct. See, e.g. id. § 219(2) (master is liable for torts of servants acting outside the scope of their employment if “(a) the master intended the conduct or consequences, or (b) the master was negligent or reckless, or (c) the conduct violated a non-delegable duty of the master....”). The fact that the law of agency incorporates princi-*1021pies of tort liability thus does not detract from the recognition that in the context of hostile environment harassment by non-supervisors, an employer's liability is not vicarious, but is directly predicated on its own negligent conduct in breaching a duty to act imposed by Title VII. See Restatement 2d of Torts § 284(b) (negligent conduct includes "a failure to do an act which is necessary for the protection or assistance of another and which die actor is under a duty to do); see also Guess v. Bethlehem Steel Corp., 913 F.2d 463, 464-65 (7th Cir.1990) (discussion of employer liability for co-worker sexual harassment). As Judge Posner explains in Guess, the use of the term “respondeat superior” to describe employer liability in this context is a misnomer. Rather the “knew or should have known" standard imposes
a negligence standard that closely resembles the 'fellow servant rule' [under which] the employer, provided it has used due care in hiring the offending employee in the first place, is liable for that employee’s torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action.
Id. at 465.
. The Guidelines did not introduce this liability standard into the Title VII context. Prior to the EEOC’s enactment of the Guidelines, lower courts had recognized that an employer may be liable under Title VII if it knowingly failed to remedy a discriminatory work atmosphere caused by the acts of co-workers. See, e.g. DeGrace v. Rumsfeld, 614 F.2d 796, 803-05 (1st Cir.1980) (employer may be liable for allowing racial harassment by co-workers); Higgins v. Gates Rubber Co., 578 F.2d 281, 283 (10th Cir.1978) (Title VII violation requires showing that employer was aware or should have been aware of discriminatory work environment), E.E.O.C. v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 386 (D.Minn.1980) (“If management knows or should know of incidents of racial harassment that are more than sporadic, it has a responsibility to take reasonable affirmative steps to eliminate such incidents”.); Friend v. Leidinger, 446 F.Supp. 361, 383-84 (E.D.Va.1977) ("Only if the employer knows or should have known of the condition and permits it to continue without attempting to discourage it, may it be found liable."), judgment aff'd, 588 F.2d 61 (4th Cir.1978); Bell v. St. Regis Paper Co., Container Division, 425 F.Supp. 1126, 1137 (N.D.Ohio 1976) (employer may be liable for acts of harassment by employees "merely by condoning them.”).
. For reasons that are certainly inscrutable to me, the majority interprets my advertance to Acton to constitute the "novel” and "erroneous” suggestion that a student is an agent of the school in order to fit within the majority's conflation of agency and tort principles. See maj. op. at 1010, n. 9. As should be clear from the discussion of Acton in the text of my dissent, I have referred to that case merely to point out that the Supreme Court has recognized that schools maintain a degree of control over school children and that in this context such control is sufficient to apply tort liability for the knowing failure of a school receiving federal funds to act in accordance with its statutory duty to prevent sex discrimination in the school.