dissenting:
I respectfully dissent.
First, I disagree with the majority’s failure to consider and follow the substantial jurisprudential and regulatory developments that have taken place under Title IX since this court visited this fast changing legal area in Rowinsky v. Bryan ISD, 80 F.3d 1006 (5th Cir.1996). I am persuaded by the new developments that the substantive standards that have evolved under Title VII should be applied in actions for monetary damages under Title IX based on either the sexual harassment of a student by a school employee or the sexual harassment of a student by his or her peers.
Second, I could have agreed with the majority’s result had this case presented only the issue of whether a complaint of hostile environment sexual harassment was made to management-level school employees. However, the certified order appealed from fairly includes other issues that should be addressed by this court, viz., (1) whether the complaints by the second grader and her mother to her primary or home room teacher about her sexual molestation by her male health and physical education teacher constituted sufficient notice because the school district failed to provide an adequate complaint and grievance procedure as required by Title IX regulations but instead issued a school booklet directing students and parents to direct complaints to the child’s primary or home room teacher; (2) whether a reasonable trier of fact could have found from the evidence that the male teacher’s conduct constituted quid pro quo harassment, as well as hostile environment harassment, of the female second grader, for which the school district is liable regardless of whether it knew or should have known or approved of the harassment.
Finally, applying the recently developed sexual harassment precepts, I conclude that (1) the plaintiffs-appellees presented sufficient evidence from which a reasonable trier of fact could conclude that the school district had notice of the sexual harassment, which it failed to take adequate remedial steps to arrest and prevent, and therefore could be held liable for damages caused by hostile environment discrimination; and (2), in the alternative, a reasonable trier of fact could find that the male teacher’s conduct constituted quid pro sexual harassment of the female second-grade student and, accordingly, if judgment is not rendered at this level for the plaintiff-appellees, the case should be remanded for further proceedings on the quid pro quo issue.
Moreover, in either event, this court should hold that the trial court exceeded its authority in denying the plaintiff plenary damages and in imposing restrictions upon their recovery not provided by law.
JURISPRUDENTIAL DEVELOPMENTS
Title IX provides that “no person in the United States shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance_” 20 USC § 1681(a). In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Supreme Court recognized ■ that Title IX affords an implied private cause of action for money damages in cases of intentional sexual discrimination; and that a teacher’s sexual harassment and abuse of a student because of the student’s sex constitutes sexual discrimination. Id., 503 U.S. at 74-75, 112 S.Ct. at 1037-38, (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986)).
*404In reviewing claims of sexual discrimination brought under Title IX, whether by students or employees, courts have generally adopted the same legal standards that are applied to such claims under Title VII. Student Claims: Kinman v. Omaha Public School District, 94 F.3d 463, 467-68 (8th Cir.1996); Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir.1996); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), vacated, pending reh’g en banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995); Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir. 1995); Yusuf v. Vassar College, 35 F.3d 709 (2d Cir.1994); Roberts v. Colo. State Bd. of Agriculture, 998 F.2d 824, 832 (10th Cir.), cert. denied, 510 U.S. 1004, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993); Bosley v. Kearney R-1 Sch. Dist., 904 F.Supp. 1006 (W.D.Mo.1995); Sharif by Salahuddin v. NYS Ed. Dep., 709 F.Supp. 345 (S.D.N.Y.1989); Moire v. Temple Univ. Sch. Med., 613 F.Supp. 1360 (E.D.Pa.1985), aff'd, 800 F.2d 1136 (3d Cir.1986); Employee Claims: Brine v. Univ. of Iowa, 90 F.3d 271, 275-6 (8th Cir.1996); Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 896-98 (1st Cir.1988); Preston v. Comm. of Va., 31 F.3d 203 (4th Cir.1994); Mabry v. State Bd. of Community Colleges and Occupational Educ., 813 F.2d 311 (10th Cir.1987), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987); cf. Doe v. Taylor, 975 F.2d 137, 149 (5th Cir.1992) (“[T]here is no meaningful distinction between the work environment and school environment which would forbid such discrimination in the former context and tolerate it in the latter.”)
The circuits addressing the elements of a student’s sexual harassment claim based on hostile educational environment agree that the plaintiff must prove: (1) that the student belongs to a protected group; (2) that the student was subject to unwelcome sexual harassment; (3) that the harassment was based on sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of the student’s education and create an abusive educational environment; and (5) that some basis for institutional liability has been established. Kinman v. Omaha Public Sch. Dist., 94 F.3d 463, 467-68 (8th Cir.1996); Seamons v. Snow, 84 F.3d 1226, 1232 (10th Cir.1996); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), vacated, pending reh’g en banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995).
A majority of those circuits have held that in order to establish the fifth element — viz., that there is a basis for the educational institution’s liability — Title VII principles apply: (1) The plaintiff must show that the school knew or should have known of the harassment in question and failed to take prompt remedial action; and (2) the student can satisfy the “knew or should have known” requirement by demonstrating that adequate information concerning the harassment was communicated to management-level school employees or by showing that the pervasiveness of the harassment gives rise to a reasonable inference of knowledge or constructive knowledge. Kinman v. Omaha Sch. Dist., supra; Davis v. Monroe County Bd. of Educ., supra; Murray v. New York Univ. College of Dentistry, supra. Accord Doe v. Petaluma City Sch. Dist., 949 F.Supp. 1415 (N.D.Cal.1996); Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288 (N.D.Cal.1993); Burrow v. Postville Community Sch. Dist., 929 F.Supp. 1193 (N.D.Iowa 1996); Bruneau v. South Kortright Central Sch. Dist., 935 F.Supp. 162 (N.D.N.Y.1996); Linson v. Trustees of the Univ. of Penn., 1996 WL 479532 (E.D.Pa.1996). The court in Seamons v. Snow, supra, disposed of the plaintiffs claim solely on the basis of his failure to allege facts constituting sexual discrimination without addressing the notice issue.
That Title VII standards should be applied in analyzing a Title IX sexual harassment claim by a student is also evident from the decisions of the Supreme Court. Although the Court did not expressly address the issue in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), in holding that Title IX authorizes awards of compensatory damages to Title IX plaintiffs generally, the Court invoked Title VII authority and principles. Franklin involved a high school student’s allegations that she had been sexually harassed and assaulted by a teacher and that *405school officials with actual knowledge of the teacher’s misconduct had faded to intervene. Id., 503 U.S. at 64-65, 112 S.Ct. at 1031-32. In rejecting the argument that the specific language of Title IX did not give educational institutions sufficient notice of their liability for damages for such intentional discrimination, the Franklin Court stated:
Unquestionably, Title IX,placed on [such institutions] the duty not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Meritor Sav[ings] Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). We believe the same rule should apply when a teacher sexually harasses and abuses a student. Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe.
Id., 503 U.S. at 75, 112 S.Ct. at 1037. The Court’s citation to Meritor Savings Bank, a Title VII case, in support of Franklin’s central holding indicates that, in a Title IX suit for gender discrimination based on sexual harassment of a student, an educational institution may be held liable under standards similar to those applied in cases under Title VII. See Murray v. New York Univ. College of Dentistry, 57 F.3d at 248-49.
Furthermore, the Supreme Court has consistently, both before and after Franklin, used the term “intentional” to distinguish disparate treatment discrimination, including hostile environment discrimination, from unintentional disparate impact discrimination. Thus, by stating that money damages may be awarded only for intentional violations of Title IX, the Supreme Court did not intend to foreclose studént victims from such recovery for sexual harassment amounting to either quid pro quo or hostile environment discrimination under principles modeled on the Title VII standards.
In Guardians Ass’n v. Civil Serv. Comm’s of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983), the Supreme Court held, in a Title VI action prior to Franklin, that monetary damages should not be awarded under Title VI for unintentional disparate impact discrimination. Justice White, announcing the judgment of the Court, explicitly noted that the holding that damages were not available for unintentional discrimination based on disparate impact left open the issue of whether money damages would be appropriate in cases of “intentional discrimination.” Id. at 597, 103 S.Ct. at 3230. Thus, Justice White clearly implied that “intentional discrimination” is discrimination other than that based on disparate impact. This section of Justice White’s opinion was joined by Justice Rehnquist. Additionally, the distinction between intentional discrimination and unintentional disparate impact discrimination was implicit in the concurring opinions and dissents of Justices O’Connor, id. at 613, 103 S.Ct. at 3238, Marshall, id. at 616, 103 S.Ct. at 3240, and Stevens, Brennan and Blackmun, id. at 645, 103 S.Ct. at 3255. Therefore, a majority of the Guardians Court implicitly but clearly defined “intentional discrimination” as discrimination other than disparate impact discrimination. Doe v. Petaluma City Sch. Dist., 949 F.Supp. at 1418-19 (N.D.Cal.1996).
Subsequent to Franklin, the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), confirmed the distinction it draws between intentional discrimination (including hostile environment sexual harassment) and unintentional disparate impact discrimination. The Civil Rights Act of 1991 created a right to recover compensatory damages in cases of “unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact)” prohibited by Title VII. 42 U.S.C. § 1981(a). This amendment to Title VII sets up the same diehotofriy as did the Supreme Court in Franklin and Guardians, for it limits the award of money damages to cases involving “intentional discrimination.” In Landgraf the Supreme Court, in a Title VII case involving a hostile work environment claim, held that the provisions affording the right to such money damages do not apply to a Title VII case that was pending on appeal when the statute was enacted. The Supreme Court, in its discussion of whether the amendment should be given retroactive ap*406plication, clearly assumed that “intentional discrimination” would include hostile work environment discrimination based on coworker harassment. Landgraf, 511 U.S. at 249-50, 114 S.Ct. at - - -. The Court’s assumption evidently was based on its own classification of hostile environment discrimination as “intentional discrimination.” For example, the Court stated that the amendment “confers a new right to monetary relief on persons like petitioner who were victims of a hostile work environment but were not constructively discharged.” Id. at 283, 114 S.Ct. at -. Thus the Guardians and Landgraf opinions indicate that when the Supreme Court referred to “intentional discrimination” in Franklin, it was referring to any form of discrimination other than disparate impact discrimination. In other words, “intentional discrimination” includes hostile work environment discrimination. See Doe v. Petaluma City Sch. Dist., 949 F.Supp. at 1421-28 (N.D.Cal.1996) (citing also as earlier authority Henson v. City of Dundee, 682 F.2d 897, 902-05 n. 11 (11th Cir.1982); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n. 3 (3d Cir.1990) (“[T]he intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course”)).
This background explains why recent cases under the 1991 amendments to Title VII simply characterize hostile work environment discrimination as a species of intentional discrimination, without discussion. Petaluma, 949 F.Supp. at 1424 (citing Townsend v. Indiana Univ., 995 F.2d 691 (7th Cir.1993); Raney v. Dist. Of Columbia, 892 F.Supp. 283 (D.D.C.1995); Sassaman v. Heart City Toyota, 879 F.Supp. 901 (N.D.Ind.1994); Splunge v. Shoney’s, Inc., 874 F.Supp. 1258 (M.D.Ala.1994); Preston v. Income Producing Management, Inc., 871 F.Supp. 411 (D.Kan.1994); Meadows v. Guptill, 856 F.Supp. 1362 (D.Ariz.1993); Powell v. Las Vegas Hilton Corp., 841 F.Supp. 1024 (D.Nev.1992)). “If there was ambiguity regarding whether hostile environment claims were a species of intentional discrimination, this ambiguity has now been resolved by the 1991 amendments and the cases applying them.” Id.
Moreover, the recent draft guidances issued by the Office of Civil Rights of the Department of Education discussed below confirms that the majority of the courts are correct in applying the standards developed under Title VII in the adjudication and review of students’ claims based on Title IX violations involving peer or school employee hostile environment discrimination.
REGULATORY DEVELOPMENTS
In Rowinsky we recognized that “[wjhen interpreting title IX, we accord the OCR’s [Office of Civil Rights of the Department of Education] interpretations appreciable deference.” 80 F.3d at 1015 n. 20 (citing Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir.1993)), which elaborated:
[W]e treat [the Department of Education], acting through its OCR, as the administrative agency charged with administering Title IX.
Recognizing the agency’s role has important practical and legal consequences. Although [the Department] is not a party to this appeal, we must accord its interpretation of Title IX appreciable deference. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984); see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) (noting that the Supreme Court “gives great deference to the interpretation given the statute by the officers or agency charged with its administration”).
Nevertheless, the Rowinsky majority concluded that 34 C.F.R. § 106.311 cannot rea*407sonably be read to prohibit a recipient from knowingly allowing peer sexual harassment of students. 80 F.3d at 1015. The majority inferred as much because the most definitive statement by the OCR on sexual harassment at that time left unresolved the issue of peer sexual harassment. Id.
Subsequent to the handing down of Rowinsky on April 2, 1996, however, the OCR issued (1) on August 16, 1996, a draft document on “Sexual Harassment Guidance: Peer Sexual Harassment [Guidance],” providing educational institutions with information regarding the standards used by OCR to investigate and resolve cases involving claims that peer sexual harassment has created a hostile environment in violation of Title IX. 61 Fed.Reg. 42,728 (August 16, 1996); and (2) on October 4, 1996, a draft document on “Sexual Harassment Guidance: Harassment of Students by School Employees,” providing educational institutions with information regarding the standards used by the OCR to investigate and resolve cases involving claims that sexual harassment of students by school employees has created a hostile environment in violation of Title IX. 61 Fed.Reg. 52,171 (October 4, 1996). (N.B. The OCR attached both draft documents as appendices to 61 Fed.Reg. 52,171.) The OCR invited interested parties to comment on the clarity and completeness of the draft guidances. The periods for comment on these draft documents have elapsed. The OCR is proceeding to combine the substance of the two drafts in one Guidance that will be issued in the very near future.
In effect, the new OCR Guidance will provide that, in accordance with the OCR’s longstanding nationwide practice, the legal principles developed under Title VII should be applied in determining when a hostile environment discrimination violation has occurred because of sexual harassment of a student by either peers or a school employee. In the more recent draft document the OCR stated:
Consistent with the Supreme Court’s decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 [112 S.Ct. 1028, 117 L.Ed.2d 208] (1992) (holding that a student may sue a school district for damages based on sexual harassment by a teacher), OCR has applied Title IX to prohibit sexual harassment of students by school employees. The standards in the Guidance reflect OCR’s longstanding nationwide practice and reflect well established legal principles developed under Title VII of the Civil Rights Act of 1964, which prohibits gender discrimination in, employment.
61 Fed.Reg. at 52,172.
Below are highlights of the two Guidance drafts. The material is lifted as almost verbatim excerpts from the drafts. Footnote material has been merged with text material in many instances. Citations of authorities have been selectively drawn from the footnotes. This presents a quick, incomplete view of some of the significant provisions.
School Employee Harassment
According to the OCR draft Guidance, sexual harassment of students by a school employee is a form of prohibited sex discrimination in the following circumstances:
Quid Pro Quo Harassment — A school employee explicitly or implicitly conditions a student’s participation in aii education program or school activity or bases an educational decision on the student’s sub*408mission to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Quid pro quo harassment is equally unlawful whether the student resists and suffers the threatened harm or submits and thus avoids the threatened harm. [61 Fed.Reg. at 52,172].
Hostile Environment Harassment — Sexually harassing conduct by an employee (that can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature) is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment. [61 Fed.Reg. at 52,172].
A school’s liability for sexual harassment by its employees is determined by application of agency principles, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992), i.e., by principles governing -the delegation of authority to or authorization of another person to act on one’s behalf. Accordingly, a school will always be liable for even one instance of quid pro quo harassment by a school employee in a position of authority, such as a teacher or administrator, whether or not it knew, should have known, or approved of the harassment at issue. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 70-71, 106 S.Ct. 2399, 2407-08, 91 L.Ed.2d 49 (1986); see also Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988); EEOC Notice N-915-050, March 1990, at 21; Kadiki v. Virginia Commonwealth Univ., 892 F.Supp. 746, 752 (E.D.Va.1995). Under agency principles if a teacher or other employee uses the authority he or she is given (e.g., to assign grades) to force a student to submit to sexual demands, the employee “stands in the shoes” of the school and the school will be responsible for the use of its authority by the employee/agent. Kadiki, 892 F.Supp. at 754-55. [61 Fed.Reg. at 52,172-3].
A school will also be liable for hostile environment sexual harassment by its employees, i.e., for harassment that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive environment if the employee — (1) Acted with apparent authority (i.e., because of the school’s conduct, the employee reasonably appears to be acting on behalf of the school, whether or not the employee aeted with authority); see Restatement (2d) Agency § 219(2)(d); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1352 (4th Cir.1994); or (2) was aided in carrying out the sexual harassment of students by his or her position of authority with the institution. EEOC Policy Guidance on Current Issues of Sexual Harassment at 28; Martin v. Cavalier Hotel Corp. 48 F.3d at 1352; Karibian, 14 F.3d at 780; Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 579 (10th Cir.1990). In many cases the line between quid pro quo and hostile environment discrimination will be blurred, and an employee’s conduct may constitute both types of harassment. [Id. at 52,173].
Even in situations not involving (i) quid pro quo harassment, (ii) creation of a hostile environment through an employee’s apparent authority, or (iii) creation of a hostile environment in which the employee is aided in carrying out the sexual harassment by his or her position of authority, a school will be liable for sexual harassment of its students by its employees if the school has notice of the harassment (i.e., knew or should have known of the harassment), but failed to take immediate and appropriate steps to remedy it. Cf. Karibian, 14 F.3d at 780. Determining when a school has notice of sexual harassment is discussed in the Peer Harassment Guidance. [61 Fed.Reg. at 72,173] (discussed infra at p. 409-10 et seq.).
Schools are required by the Title IX regulations to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints, including complaints of sexual harassment, and to disseminate a policy against sex discrimination. 34 CFR 106.8(a) and (b)2. If a *409school fails to do so, it will be liable for the lack of procedures regardless of whether sexual harassment occurred. In addition, if OCR determines that the harassment occurred, the school may be in violation of Title IX as to the harassment, under the agency principles previously discussed, because a school’s failure to implement effective policies and procedures against discrimination may create apparent authority for school employees to harass students. EEOC Policy Guidance at p. 25 (“ * * * in the absence of a strong, widely disseminated, and consistently enforced employer policy against sexual harassment, and an effective complaint procedure, employees could reasonably believe that a harassing supervisor’s actions will be ignored, tolerated, or even condoned by upper management.”) [61 Fed.Reg. at 52,173].
In all cases of alleged harassment by employees investigated by OCR, OCR will determine whether a school has taken immediate and appropriate steps reasonably calculated to end any harassment that has occurred, remedy its effects, and prevent harassment from occurring again. If the school has done so, OCR will consider the ease against that school resolved and will take no further action. This is true in cases in which the school was in violation of Title IX, as well as those in which there has been no violation of federal law. However, schools should note that the Supreme Court has held that, should a student file á private lawsuit under Title IX, monetary damages are available as a remedy if there has been a violation of Title IX. Franklin, 503 U.S. at 76, 112 S.Ct. at 1038. Of course, a school’s immediate and appropriate remedial actions are relevant in determining the extent and nature of damages suffered by a plaintiff. [61 Fed.Reg. at 52,173].
Although generally, a plaintiff must prove that the sexual harassment is unwelcome in order to state an actionable claim, if elementary students are involved, welcomeness will not be an issue: OCR will never view sexual conduct between an adult school employee and an elementary school student as consensual. Because students may be encouraged to believe that a teacher has absolute authority over, the operation of his or her classroom, a student may not object to a teacher’s sexually harassing comments during class. See Leija v. Canutillo ISD, 887 F.Supp. 947, 954 (N.D.Tex.1993) (“young children, taught to respect their teachers and follow their teacher’s request, often do not know what to do when abuse occurs”). [61 Fed.Reg. at 52,173].
In determining whether an employee’s sexual harassment of a student created a hostile environment, i.e., whether it was sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or create a hostile or abusive educational environment, OCR considers the factors discussed in the Peer Harassment Guidance. [61 Fed.Reg. at 52,175-83].
Peer Harassment
The Peer Harassment draft guidance discusses the analysis that the OCR follows, and that recipients of federal funding should use, when investigating allegations that sexual harassment of a student or students by another student or group of students (peer harassment) has created a hostile environment at an educational institution that receives federal financial assistance. [61 Fed.Reg. at 52,175].
Under Title IX and its implementing regulations, no individual may be discriminated against on the basis of sex in educational programs receiving federal financial assistance. 20 U.S.C. § 1681 et seq.; 34 C.F.R. § 106.31(b), supra n. 1. In analyzing sexual harassment claims, the Department also ap*410plies, as appropriate to the educational context, many of the legal principles applicable to sexual harassment in the work place, developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). See Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75, 112 S.Ct. 1028, 1037-38, 117 L.Ed.2d 208 (1992) (applying Title VII principles in determining that a student was entitled to protection from sexual harassment by a teacher in school under Title IX); Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995) (same); Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560, 1571-72 (N.D.Cal.1993) (same), rev’d in part on other grounds, 54 F.3d 1447 (9th Cir. 1995). [61 Fed.Reg. at 52,175].
In addition, many of the principles applicable to racial harassment under Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq., and Title VII also apply to sexual harassment under Title IX. Indeed, Title IX was modeled on Title VI, Cannon v. Univ. of Chicago, 441 U.S. 677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979).3 [61 Fed.Reg. at 52,175 n. 2].
Peer sexual harassment is a form of prohibited sex discrimination where the harassing conduct creates a hostile environment. See Franklin, 503 U.S. at 75, 112 S.Ct. at 1037-38; Bosley v. Kearney R-1SD, 904 F.Supp. 1006, 1023 (W.D.Mo.1995); Burrow v. Postville CSD, 929 F.Supp. 1193, 1203 (N.D.Iowa 1996); Oona R.-S. v. Santa Rosa City Schools, 890 F.Supp. 1452 (N.D.Cal.1995); Davis v. Monroe County Bd. of Ed., 74 F.3d 1186, 1193 (11th Cir.1996), vacated, reh’g granted; cf. Murray v. NYU, 57 F.3d at 249. Title IX does not make a school responsible for the actions of the harassing student, but rather for its own discrimination in failing to act and permitting the harassment to continue once a school official knows that it is happening. [61 Fed.Reg. at 52,180 n. 3].
A school will have notice of a hostile environment when it knew or should have known of the harassment. Davis v. Monroe County, 74 F.3d at 1194, and other authorities including Rosa H. v. San Elizario ISD, 887 F.Supp. 140, 143 (W.D.Tex.1995) (“[T]he school district is in the best position to be on the lookout for discriminatory conduct * * * A ‘knew or should have known’ requirement mandates that the school district monitor its employees and students and prevents a situation where the district, through its employees or policies, turns a blind eye toward discriminatory conduct.”)]. Moreover, schools are required by the Title IX regulations to have grievance procedures through which students can complain of alleged sex discrimination by other students, including sexual harassment. 34 C.F.R. § 106.8(b). [61 Fed.Reg. 52,178-79].
A school will be liable for the conduct of its students that creates a sexually hostile environment where (i) a hostile environment exists, (ii) the school knows (“has notice”) of the harassment, and (in) the school fails to take immediate and appropriate steps to remedy it. [61 Fed.Reg. at 52,177]. [Citing again Franklin, Bosley, Doe, Burrow, Oona R.-S., Davis, and Murray, cited above.]
A recipient can receive notice of peer sexual harassment creating a hostile environment in many different ways. Because schools are required to have Title IX grievance procedures, a student may have filed a grievance or complained to a teacher about fellow students sexually harassing him or her.. A student, parent, or other individual may have contacted other appropriate personnel, such as a principal, campus security, bus driver, teacher, an affirmative action officer, or staff in the office of student affairs. An agent or responsible employee of the institution may have witnessed the harassment. The recipient may receive notice in an indirect manner, from sources such as a member of the school staff, a member of the educational or local community, or the media. The recipient also may have received notice from flyers about the incidents] posted around the school. See Racial Harassment Guidance, 59 Fed.Reg. at 11,450 (discussing how a school may receive notice). [61 Fed.Reg. at 52,178].
Constructive notice exists when the school “should have” known about the harassment— *411when the school would have found out about the harassment through a “reasonably diligent inquiry.” See Yates v. Avco Corp., 819 F.2d 630, 634-36 (6th Cir.1987) (Title VII case); Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983) (same); Badal Harassment Investigative Guidance, 59 Fed.Reg. at 11,450. In some cases, the pervasiveness of the harassment may be enough to conclude that the school should have known of the hostile environment — where the harassment is widespread, openly practiced, or well-known to students and staff (such as sexual harassment occurring in hallways, graffiti in public areas, or harassment occurring during recess under a teacher’s supervision). [61 Fed.Reg. at 52,177]
CONCLUSIONS
I respectfully disagree with the majority opinion’s failure to apply Title IX as impliedly interpreted by the Supreme Court in Franklin v. Gwinnett County Public Schools, as implemented by 34 CFR § 106.1 et seq., and as interpreted by the OCR’s draft Guid-ances on Harassment of Students by School Employees, 61 Fed.Reg. at 52171-52183 (October 4, 1996). In my opinion these authorities strongly indicate that we should apply the standards developed under Title VII in the adjudication and review of a student’s claim of hostile environment sexual discrimination by a school employee under Title IX. All of the other circuits which have addressed this question have done so. Kinman v. Omaha Public Sch. Dist., 94 F.3d 463 (8th Cir.1996); Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996); Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), vacated, pending reh’g en banc; Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995). The majority opinion does not offer any cogent legal reason for its failure to recognize and follow these authorities. Furthermore, although this court may not have been aware of the OCR’s draft guidances when the ease was argued, now that we aware of them we should give great deference to the interpretations of the OCR as the administrative agency charged with administering Title IX. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Rowinsky v. Bryan ISD, 80 F.3d 1006 (5th Cir.1996).
Accordingly, in a Title IX action based on hostile environment discrimination caused by a school employee’s sexual harassment of a student, the plaintiff must establish a basis for the educational institution’s liability. This requires the plaintiff to show that the school knew or should have known of the harassment in question and failed to take prompt remedial action. Ordinarily, the plaintiff can satisfy the “knew or should have known” requirement by demonstrating that information of the harassment was communicated to management-level school employees or by showing that the pervasiveness of the harassment gave rise to an inference of actual or constructive knowledge. In the present case, because it appears that the only school employee who received any communication or information about the harassment was a teacher, not a management-level school employee, the plaintiffs would have failed to prove their hostile environment claim, had the school district complied with its obligations under the Title IX regulations.
Schools are required by the Title IX regulations, however, to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints, including complaints of sexual harassment, and to disseminate a policy against sex discrimination. 34 C.F.R. § 106.8(b); 61 Fed.Reg. at 52,173. If a school fails to do so, it will be liable under Title IX for the lack of grievance procedures, regardless of whether sexual harassment occurred. Id. In addition, if OCR determines that harassment occurred, the school may be in violation of Title IX as to the harassment under agency principles because the failure to implement effective policies and procedures against discrimination may create apparent authority for school employees to harass students. Id.; see also EEOC Policy Guidance at 25. Because we owe accord great deference to the interpretation of Title IX by the OCR due to its role as the administrative agency charged with administering the statute, these principles should be applied to the evidence in the present case to *412determine whether notice of the harassment should be imputed to the school district.
The plaintiffs’ brief and the District Court’s order point to evidence from which a reasonable trier of fact could conclude that notice of the harassment should be attributed to the school district. There was evidence that prior to the incidents in question the school district had no policy directing students and parents as to how to make a report of sexual harassment. The Canutillo Elementary Student Handbook directed students or parents who had any complaint to first take it up with the student’s primary teacher. Rosemarie’s understanding was that she should direct any complaints to her primary teacher. The evidence further indicated that Rosemarie did not know where the office of the superintendent was located or that there was a Title IX coordinator ostensibly responsible for investigating allegations of child abuse. In its memorandum and opinion order the District Court found that when Rosemarie Leija and her classmate Lizette reported the molestations to then-primary teacher, that teacher discounted the girls’ story and took no action of any kind to address the matter. When Leija’s parents later reported the harassment to the same teacher, she advised against stirring up trouble and convinced the parents nothing was happening.
Whether a school district can be charged with knowledge of a student’s sexual harassment in a civil action because of its failure to comply with its obligations under Title IX and C.F.R. § 106.8 to establish adequate complaint and grievance procedures is is a question within our jurisdiction. On consideration of an interlocutory order certified for appeal by a district court pursuant to 28 U.S.C. § 1292(b), a court of appeals may exercise jurisdiction over any question that is included within the order containing the controlling question of law and is not tied to the particular question formulated by the District Court. Yamaha Motor Corp. v. Calhoun, — U.S. —, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). As the Court explained:
[T]he appellate court may address any issue fairly included within the certified order because “it is the order that is appeal-able, and not the controlling question identified by the district court.” 9 J. Moore & B. Ward, Moore’s Federal Practice ¶ 110.25[1], p. 300 (2d 3d.1995). See also 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure § 3929, pp. 144-145 (1977) (“[T]he court of appeals may review the entire order, either to consider a question different than the one certified as controlling or to decide the case despite the lack of any identified controlling question.”); Note, Interlocutory Appeals in the Federal Courts Under 28 USC § 1292(b), 88 Harv. L.Rev. 607, 628-629 (1975) (“scope of review [includes] all issues material to the order in question”).
Id., at -, 116 S.Ct. at 623.
By the same token, this court can exercise jurisdiction over the question of whether the male health and physical education teacher committed quid pro quo sexual harassment upon Rosemarie. This is an issue that is material to and fairly included within the certified order. The District Court recognized in its memorandum opinion and order that quid quo pro abuse is a type of sexual harassment actionable under Title VII in which the actions of the employer’s agents or supervisory personnel are imputed to the employer whether or not the employer knew, should have known, or approved of the actions. That court further concluded that Title IX cases are properly analyzed, in part, under these two types of discrimination.
Similarly, the OCR draft Guidance provides that quid pro quo harassment occurs when a school employee explicitly or implicitly conditions a student’s participation in an education program or school activity or bases an educational decision on the student’s submission to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. 61 Fed.Reg. at 52,172, citing Alexander v. Yale Univ., 459 F.Supp. 1, 4 (D.Conn.1977); Kadiki v. Va. Commonwealth Univ., 892 F.Supp. 746, 752 (E.D.Va.1995); Karibian v. Columbia Univ., 14 F.3d 773, 777-79 (2d Cir.1994). A school will always be liable for even one instance of quid pro quo harassment by a school employee in a position of *413authority, such as a teacher or administrator, whether or not it knew, should have known, or approved of the harassment. See Meritor Savings Bank v. Vinson, 477 U.S. at 70-71, 106 S.Ct. at 2407-08; Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988); EEOC Notice N-915-050, March 1990, Policy Guidance on Current Issues of Sexual Harassment, at 21; Kadiki, 892 F.Supp. at 752; 61 Fed.Reg. at 52,173.
The District Court found that Tony Pe-rales taught Rosemarie Leija health and physical education in the second grade during the 1989-90 school year. During that year, Coach Perales sexually molested her while she was in his classroom. Most of the abuse occurred while he was showing movies to the class in a darkened classroom. He would instruct Rosemarie to come to the back of the room and sit on his lap! He would then place his hands beneath her undergarments and rub her chest, her buttocks, and between her legs. The plaintiffs’ brief' points to evidence in the record that Perales referred to Rosemarie as “Princess,” although he did not have pet names for the other students. He singled out Rosemarie for special attention, allowing her to sit out physical education exercises and to do favors and special tasks for him, such as running errands. He also gave her candy and other gifts that he did not confer on the other students.
Consequently, a reasonable trier of fact could have found that Rosemarie was placed in a situation, as has occurred in many cases, in which the line between quid pro quo and hostile environment discrimination was blurred. See 61 Fed.Reg. at 52,173. At her young age Rosemarie reasonably could have believed that she had to tolerate sexual touching, manipulating and petting by Perales as the price he required for his gifts and special treatment of her, his continued favoritism and goodwill, her continued participation in his class and in the health film viewing, and her avoidance of embarrassment and humiliation that she might suffer had she challenged his advances. Consequently, if this court does not affirm the judgment of liability against the school district on the plaintiffs’ hostile environment sexual discrimination claim, it should either do so on the grounds of the school district’s liability for quid pro quo sexual harassment, or it should reserve the latter issue for consideration by the district court upon remand.
The District Court clearly erred in placing limits on damages recoverable under Title IX. In Franklin the Supreme Court held that plaintiffs may recover- compensatory damages under Title IX. The cornerstone to the Court’s analysis was that all appropriate remedies are presumed available unless Congress has expressly indicated otherwise. Franklin, 503 U.S. at 68, 112 S.Ct. at 1033-34. The Court noted that the amendments to Title IX subsequent to its decision in Cannon indicated that Congress did not intend to limit remedies available in a suit brought under Title IX. Id. at 72-73, 112 S.Ct. at 1036-37. Based on the amendments to Title IX and other legislative enactments, the “traditional backdrop of a full panoply of rights,” and the Court’s prior decisions, the Franklin Court concluded that a private right of action under Title IX provides a full spectrum of remedies to a successful plaintiff. Id. Accord Rodgers v. Magnet Cove Public Schools, 34 F.3d 642 (8th Cir.1994); Waldrop v. Southern Co. Services, Inc., 24 F.3d 152 (11th Cir.1994); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir.1994).
For the foregoing reasons I respectfully, dissent from the majority’s decision to reverse the District Court’s judgment in favor of the plaintiffs holding the school district liable for damages under Title IX and to remand the ease for entry of judgment in favor of the school district. Instead, for the reasons assigned above, the district court’s judgment on liability on the basis'of hostile environment sexual discrimination should be affirmed and its judgment placing limits on damages recoverable under Title- IX should be reversed. The case should be remanded to the district court for further proceedings in light of the reasons stated herein.
. Subpart D — Discrimination on the Basis of Sex in Education Programs and Activities Prohibited
§ 106.31 Education Programs and Activities.
(a) General. Except as provided elsewhere in this part, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recip*407ient which receives or benefits from Federal financial assistance....
(b) Specific prohibitions. Except as provided in this subpart, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
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(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
04) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
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(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity-
. § 106.8 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall designate at least one em*409ployee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any com: plaint communicated to such recipient alleging any actions which would be prohibited by this part. The recipient shall notify all its students and employees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.
. For information on racial harassment, see the Department’s Notice of Investigative Guidance for Racial Harassment, 59 Fed.Reg. 11,448 (1994).