REVISED IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50811
ROSA H., Individually and as next friend of Deborah H., Plaintiff-Appellee,
versus
SAN ELIZARIO INDEPENDENT SCHOOL DISTRICT, ET AL, Defendants,
SAN ELIZARIO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
February 17, 1997
Before KING and HIGGINBOTHAM, Circuit Judges, and LAKE,* District Judge.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This case requires us to decide whether Title IX, 20 U.S.C.
§§ 1681-1688, creates liability on the part of a public school
district that negligently fails to prevent an instructor from
sexually abusing a student. We hold that it does not. In order to
hold a school district liable under Title IX for teacher-student
* District Judge of the Southern District of Texas, sitting by designation. sexual harassment based on a hostile educational environment, a
plaintiff must show that an employee who has been invested by the
school board with supervisory power over the offending employee
actually knew of the abuse, had the power to end the abuse, and
failed to do so. We reverse the plaintiff’s jury verdict and
remand for further proceedings.
I.
A.
In the fall of 1992, Deborah H. entered San Elizario High
School, where she had a sustained sexual relationship with John
Contreras, the school’s karate instructor. The relationship
ultimately caused Deborah to become suicidal, to be committed to a
psychological hospital, and to leave San Elizario before the end of
the academic year. Although Contreras denies all allegations of
sexual contact with Deborah, the jury understandably concluded in
a special interrogatory that Contreras sexually abused Deborah. A
reasonable juror could have concluded the following.
The school district employed Contreras from the fall of 1992
until the spring of 1994, when it fired him for reasons unrelated
to the facts of this case. His only responsibility was to offer
weekly martial arts classes on school grounds at the close of the
school day. These classes were meant to provide students with
productive after-school activities, and school personnel supervised
and attended each karate class. There was no evidence that the
twenty-nine-year-old Contreras had a history of sexual offenses or
was a danger to children.
2 Deborah enrolled in the karate class largely because her two
sisters had enrolled. After several weeks, Contreras took a
special interest in Deborah, who had recently turned fifteen. He
often drove her home after class. He complimented her appearance,
including not only her hair, but also her breasts. Other students
noticed that Contreras was attracted to Deborah, and Brenda Soto,
a social worker employed by the school district, may have seen
Contreras kiss Deborah on school grounds. But most of the physical
contact occurred in Contreras’s car or at his home. Within weeks
of Deborah’s enrollment in the karate class, Contreras initiated
sexual intercourse. Contreras had sex with Deborah at his house on
a regular basis in December, January, and February, often during
the school day. When Deborah insisted that she would get in
trouble for missing school, Contreras assured her that the school
did not require her to attend so long as she was with him.
Deborah’s parents knew nothing about her relationship with
Contreras. Deborah’s father approved of the karate lessons and
even paid Contreras to give all four of his children private karate
lessons at their home. On occasion, Contreras brought martial arts
films to show at Deborah’s home and stayed to eat dinner with her
family. As far as Deborah’s mother, Rosa H., was concerned,
Contreras was a pleasant young teacher who could provide a positive
role model for Deborah and her other children.
The record is less clear on the question of whether school
officials knew about Contreras’s sexual relations with Deborah.
Deborah testified that in February she visited Julian Encina, the
3 high school counselor, and confided that she had been having sex
with Contreras. Encina admitted before the jury that he had
counseled Deborah roughly once a week, but he denied that Deborah
told him anything confidentially about her relations with
Contreras. Soto testified that Encina informed her in February
that Deborah and Contreras might be having some sort of
relationship. She passed this information on to Frank Duran, the
director of San Elizario’s special programs.
On the morning of February 22, 1993, Rosa discovered Deborah
at Contreras’s house during school hours. She became suspicious of
Contreras’s relationship with her daughter. Later that morning,
she and Deborah met with Encina and Robert Longoria, the high
school principal. Deborah became upset during the meeting, and
when Contreras’s name came up she blurted out: “Well, what do you
want me to tell you, mom? Do you want me to tell you that I’m
fucking him? Well, I’m not going to tell you that because it’s not
true.” Longoria, who was unaware of the karate program and had not
met Contreras, testified that he regarded the outburst as part of
a typical family quarrel rather than as an indication that
Contreras was sexually abusing Deborah.
Toward the end of March, Rosa listened in on a telephone
conversation between Contreras and Deborah that included explicit
sexual language and confirmed Rosa’s suspicion that Contreras was
having sex with her daughter. Rosa refused to allow Deborah to see
Contreras without a chaperon. Deborah became increasingly
distraught, and on March 29 she locked herself in her bedroom with
4 her father’s loaded guns and threatened to kill herself. After an
April 5 commitment hearing, Deborah was placed in the custody of
mental health professionals for approximately two months. In order
to avoid Contreras, she enrolled in a private boarding school in
the fall of 1993.
School officials attended the April 5 hearing and heard
Deborah describe her relationship with Contreras. The school
superintendent, Beatriz Curry, called a meeting the next day to
discuss how the school should respond to Deborah’s situation.
Principal Longoria, Frank Duran, Julian Encina, Brenda Soto, and
another school social worker, Linda Apodaca, attended the meeting.
After an initial decision to suspend the karate program,
Superintendent Curry decided on the advice of counsel to continue
to have Contreras offer the classes under close monitoring. Curry
asked her staff to write down whatever they knew about Deborah’s
relationship with Contreras and to collect information to determine
whether the school should make a report to law enforcement
authorities. But the school did not mount a full-scale
investigation into whether Contreras posed a risk of sexual abuse
or notify Fran Hatch, the school’s Title IX coordinator, that
Contreras had sexually abused Deborah. Nor did school officials
report Contreras to law enforcement authorities. He worked at San
Elizario High School for another year under heightened supervision
and without committing further sexual harassment. In the spring of
1994, the school district fired him because he failed repeatedly to
5 supply the district’s personnel office with an adequate photo
identification.
B.
On behalf of her daughter, Rosa sued both the San Elizario
Independent School District and Contreras. The complaint asserted
that both defendants violated both Title IX and 42 U.S.C. § 1983.
The defendants have already prevailed on most of these claims.
Contreras himself is no longer a party: the trial court dismissed
the Title IX count as to Contreras, and Rosa dismissed the § 1983
count against Contreras at the close of evidence. The court also
entered summary judgment in favor of the school district under §
1983. Rosa has not appealed these dispositions, and we are left
only with Title IX as a possible basis for the school district’s
liability.
At the close of the plaintiff’s case, the school district
moved for judgment as a matter of law on the grounds that an
educational institution cannot be liable under Title IX unless it
discriminates intentionally. The court denied this motion and
explained in a written memorandum that under principles of agency
law, the school district could be vicariously liable for the
intentional torts of its employees if the district acted
negligently. According to the district court, the requirement that
an educational institution discriminate intentionally before being
subject to Title IX liability does not foreclose the application of
the doctrine of respondeat superior.
The court instructed the jury that
6 Title IX places on San Elizario Independent School District a duty not to act negligently toward its students. If you find from a preponderance of the evidence that San Elizario Independent School District acted negligently in failing to take prompt, effective, remedial action with respect to what it knew or should have known, then it violated Title IX.
After four days of testimony, the jury awarded the plaintiff
$100,000 in past compensatory damages and $200,000 in future
compensatory damages. It found specifically that Contreras
sexually harassed or abused Deborah, that the school district had
notice of Contreras’s conduct,1 that the district failed to take
prompt effective remedial action, and that the district’s failure
to act was negligent.
II.
Under Title IX, “[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. § 1681(a). We recently rejected the notion that this
language creates strict liability on the part of school districts
whose teachers sexually abuse students. Canutillo Indep. School
Dist. v. Leija, 101 F.3d 393, 398-400 (5th Cir. 1996). But the
facts in Leija did not require us to confront the question of what
the liability standard in teacher-student sexual abuse cases
1 The school district asked the court to instruct the jury that “the San Elizario Independent School District Board is the policymaking official whose actions may be attributable to the School District.” But the jury charge did not specify what actors count as the “school district.” As far as we can tell, the jury found merely that school employees had notice of the conduct.
7 actually is. This case, by contrast, compels us to decide which of
the three liability theories outlined in Leija — the agency theory,
the Title VII theory, or the restrictive theory that requires
actual, intentional discrimination — applies when a student suffers
sexual abuse at the hands of a public school teacher.
The San Elizario Independent School District receives federal
funds, and in light of the jury’s findings and the relevant law,
there is no question that Deborah was subjected to discrimination
based on sex. According to the school district, the trial court’s
mistake was that the jury charge allowed liability without a
finding of intentional discrimination on the part of the school
board; negligence alone in failing to prevent a teacher from
sexually harassing a student, the school district argues, is
insufficient to establish that the discrimination took place “under
any education program or activity.”
It is not quite that simple. The trial court recognized that
there can be no liability for damages under Title IX without
intentional discrimination. 887 F. Supp. at 142. Its theory of
liability hinged on imputation of intent. That is, its jury
instructions were based on the view that the principles of
vicarious liability can create culpability on the part of the
school district and thus satisfy Title IX’s intent requirement.
The trial court relied specifically on section 219(2)(b) of the
Restatement (Second) of Agency, which states that “[a] master is
not subject to liability for the torts of his servants outside the
8 scope of their employment, unless . . . the master was negligent or
reckless.”
We do not agree that a plaintiff can evade Title IX’s intent
requirement so easily. For the reasons we explain below, we hold
that when a teacher sexually abuses a student, the student cannot
recover from the school district under Title IX unless the school
district actually knew that there was a substantial risk that
sexual abuse would occur. In requiring actual knowledge, we reject
the district court’s theory that agency law can substitute imputed
discriminatory intent for actual discriminatory intent in Title IX
cases.
Minor students who have been subjected to a sexual
relationship with their teachers have a private cause of action for
monetary damages. In Franklin v. Gwinnett County Public Schools,
503 U.S. 60 (1992), a female high school student alleged that a
teacher forced her to have intercourse with him, that the school
administrators knew of this sexually abusive relationship, and that
the school did nothing to stop the harassment. The Supreme Court
held that the student’s complaint should not have been dismissed
because Title IX allows students to recover damages when an
educational institution engages in intentional discrimination. But
the Franklin Court did not decide whether the school district
itself had intentionally discriminated. The Court cited Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986), for the proposition
that sex discrimination includes sexual harassment. It then
explained that the rationale behind limiting remedies for
9 violations of statutes, such as Title IX, that are enacted under
Congress’s spending power does not apply when the violation is
intentional.2
Some courts have read Franklin as endorsing some sort of
agency theory in Title IX teacher-student sexual harassment cases.
See, e.g., Bolon v. Rolla Public Schools, 917 F. Supp. 1423, 1428
(E.D. Mo. 1996) (“[Franklin] indicates that the Supreme Court would
impose liability against a school district . . . for the
intentional discrimination by an agent, regardless of whether the
district court ‘knew or should have known’ about the
discrimination.”); Doe v. Petaluma City School Dist., 830 F. Supp.
1560, 1575 (N.D. Cal. 1993) (“Although not expressly stated in the
opinion, the rule laid down by Franklin appears to be that, under
Title IX, damages are available only for intentional discrimination
but respondeat superior liability exists, so that an institution is
deemed to have intentionally discriminated when one of its agents
has done so.”), reconsideration granted, ___ F. Supp. ___, 1996 WL
432298 (N.D. Cal. 1996) (adopting Title VII’s “knew or should have
known” standard). See also Davis v. Monroe County Bd. of Educ., 74
2 In Rowinsky v. Bryan Indep. School Dist., 80 F.3d 1006, 1011 n.11 (5th Cir.), cert. denied, 65 U.S.L.W. 3249 (1996), we suggested that Franklin’s analysis of teacher-student harassment was dictum because the only issue before the Franklin Court was whether Title IX generates any private cause of action for monetary damages. This amounts to dictum within dictum and does not bind us today. Even if we were to decide that Franklin is technically silent on whether there are any situations in which we must allow students to recover damages under Title IX for sexual harassment by teachers, we would follow the unopposed consensus of other jurisdictions that Title IX makes money damages available to students when a school district sexually harasses them.
10 F.3d 1186, 1192-93 (11th Cir.) (construing Franklin to mean that “a
student should have the same protection in school that an employee
has in the workplace”), reh’g en banc granted, 91 F.3d 1418 (11th
Cir. 1996). To support their reading of Franklin, these courts
often point out that Title IX should have “a sweep as broad as its
language.” North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 521
(1982) (quoting United States v. Price, 383 U.S. 787, 801 (1966)).
It is helpful to distinguish pure agency theories from agency-
like theories that rely on Title VII’s liability scheme. In
Meritor Sav. Bank v. Vinson, 106 S. Ct. 2399, 2408 (1986), the
Supreme Court cautioned that “common-law [agency] principles may
not be transferable in all their particulars to Title VII.” Courts
sometimes conflate these theories. In Murray v. New York Univ.
College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995), for example,
the court cited Meritor for the proposition that “[w]hether the
harassing conduct of a supervisor or coworker should be imputed to
the employer is determined in accordance with common-law principles
of agency.” The thrust of the Murray opinion, however, was not
that we should use agency law in Title IX cases, but that we should
consider using Title VII’s constructive-notice standard.
We address first the suggestion that agency law as such
governs private suits under Title IX. Then we explore separately
whether Title VII law, informed by agency principles, imposes a
constructive-notice standard on school districts under Title IX.
11 A.
We are not convinced that Franklin instructs us to find school
districts vicariously liable whenever an employee intentionally
harasses a student because of sex and satisfies the agency rules of
§ 219 of the Restatement. We have consistently viewed Title IX as
Spending Clause legislation. See Leija, 101 F.3d at 398; Rowinsky,
80 F.3d at 1012 n.14; see also Lieberman v. University of Chicago,
660 F.2d 1185, 1187 (7th Cir. 1981) (concluding that Title IX “must
be deemed an exercise of Congress’ Spending Power” because it was
designed to assist educational institutions overcome financial
problems), cert. denied, 456 U.S. 937 (1982). The Franklin Court
explained that monetary damages are not available for unintentional
violations of Title IX because “the receiving entity of federal
funds lacks notice that it will be liable for a monetary award.”
503 U.S. at 74. “This notice problem does not arise in a case . .
. in which intentional discrimination is alleged.” Id. at 74-75.
Such reasoning militates against the imposition of agency
principles. As a statute enacted under the Spending Clause, Title
IX should not generate liability unless the recipient of federal
funds agreed to assume the liability. In this case, forcing the
school district to pay for the unauthorized acts of John Contreras
would be using a federal spending statute to create a private cause
of action without regard to whether the recipient of the federal
funds knew anything about the violation. When the school board
accepted federal funds, it agreed not to discriminate on the basis
of sex. We think it unlikely that it further agreed to suffer
12 liability whenever its employees discriminate on the basis of sex.
Adopting the customary tort paradigm utilized by the district court
would compromise Franklin’s principle that “legislation enacted
pursuant to the spending power is much in the nature of a
contract.” Pennhurst State School & Hosp. v. Halderman, 451 U.S.
1, 17 (1981).
The text of Title IX gives us further reason to think that the
school district did not assume the responsibility to pay damages
whenever a teacher sexually harasses a student and falls within the
scope of common-law agency rules. While Title VII makes explicit
reference to the agents of employers, 42 U.S.C. § 2000e(b), Title
IX does not instruct courts to impose liability based on anything
other than the acts of the recipients of federal funds. Federal
regulations similarly fail to indicate any expectation that school
districts will be vicariously liable under Title IX. See 34 C.F.R.
§ 106.2(h) (1996) (defining “recipient” as the institution, entity,
or person that operates an educational program or activity that
receives or benefits from federal assistance). A variety of
district courts in factually similar cases have shared our
reluctance to read the statute and regulations to create vicarious
liability. See Wright v. Mason City Community School Dist., 940 F.
Supp. 1412, 1420 (N.D. Iowa 1996) (explaining that because grant
recipients must have notice of potential liability, Title IX
plaintiffs must prove “that the educational institution knew of the
harassment and intentionally failed to take the proper remedial
measures because of the plaintiff’s sex”); Nelson v. Almont
13 Community Schools, 931 F. Supp. 1345, 1354-56 (E.D. Mich. 1996)
(rejecting § 219 as a basis for Title IX liability and requiring
knowledge of discrimination on the part of the school district);
R.L.R. v. Prague Public School Dist I-103, 838 F. Supp. 1526, 1534
(W.D. Okla. 1993) (granting summary judgment to a school district
whose basketball coach sexually harassed a student because the
student failed to establish a “custom or policy, acquiescence in,
conscious disregard of, or failure to investigate or discipline on
the part of the School District or any named defendant”); Floyd v.
Waiters, 831 F. Supp. 867, 876 (M.D. Ga. 1993) (holding that
“common-law agency principles do not apply to claims under Title
IX” because Title IX, unlike Title VII, does not refer to
“agents”).
It is important to note that agency principles would create
liability for school districts in virtually every case in which a
teacher harasses, seduces, or sexually abuses a student. In
addition to § 219(2)(b) of the Restatement, which makes a master
liable when he acts negligently, courts could rely on § 219(2)(d),
which creates liability whenever the servant is “aided in
accomplishing the tort by the existence of the agency
relationship.” The teacher’s status as a teacher often enables the
teacher to abuse the student. Whether his power came from the aura
of an instructor’s authority, the trust that we encourage children
to place in their teachers, or merely the opportunity that teachers
have to spend time with children, John Contreras’s chances of
initiating a sexual relationship with an adolescent such as Deborah
14 were enhanced when the school district hired him. But that is not
a sufficient reason to think that the school district discriminated
on the basis of sex. We conclude that Title IX does not
contemplate a theory of recovery based purely on agency law.
In addition to the argument based on the law of agency, the
plaintiff urges us to look to Title VII law in applying Title IX.
Under Title VII, a plaintiff “can demonstrate constructive notice
by ‘showing the pervasiveness of the harassment, which gives rise
to the inference of knowledge or constructive knowledge.’” Waltman
v. International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989)
(quoting Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.
1982)). Applying this principle here would mean that if the school
district should have known about Contreras’s abuse, it could be
liable on the basis of its constructive notice of sex
discrimination. This approach to Title IX teacher-student sexual
harassment cases would be less taxing on spending power limits than
an approach based purely on agency principles because it would
exclude cases in which the only basis of liability is the fact that
the teacher uses his authoritative status to harass a student.
Franklin did not establish any sweeping parallel between Title
IX and Title VII. Because teachers can abuse their power over
students at least as easily as employers can abuse their power over
employees, it is understandable that some courts have interpreted
Franklin as borrowing from Title VII. See, e.g., Burrow v.
Postville Community School Dist., 929 F. Supp. 1193, 1204 (N.D.
15 Iowa 1996) (“The Supreme Court’s utilization of its Title VII case
law to interpret Title IX in Franklin strongly indicates that Title
VII precedent is appropriate for analysis of hostile environment
sexual harassment claims under Title IX.”); Bosley v. Kearney R-1
School Dist., 904 F. Supp. 1006, 1022 (W.D. Mo. 1995) (“By saying
that Meritor . . . gave notice to the defendant school district in
Franklin, and by saying that Congress’ purpose in enacting Title IX
was to prevent federal monies from being used to support
intentional discrimination declared unlawful in other statutes,
Franklin supports the conclusion that Title VII law provides
standards for enforcing the anti-discrimination provisions of Title
IX.”); Patricia H. v. Berkeley Unified School Dist., 830 F. Supp.
1288, 1293 (N.D. Cal. 1993) (“As the Supreme Court acknowledged in
[Franklin], a student should have the same protection in school
that an employee has in the workplace.”). See also Kinman v. Omaha
Public School Dist., 94 F.3d 463, 469 (8th Cir. 1996) (adopting
Title VII’s “knew or should have known” standard when a student
brings a Title IX claim based on sexual abuse by a teacher); Mabry
v. State Bd. of Community Colleges & Occupational Educ., 813 F.2d
311, 316 n.6 (10th Cir.) (“Because Title VII prohibits the
identical conduct prohibited by Title IX, i.e., sex discrimination,
we regard it as the most appropriate analogue when defining Title
IX’s substantive standards . . . .”), cert. denied, 484 U.S. 849
(1987). We have cited Mabry approvingly and endorsed the view that
“Title IX’s proscription of sex discrimination, when applied in the
employment context, does not differ from Title VII’s.” Lakoski v.
16 James, 66 F.3d 751, 757 (5th Cir. 1995), cert. denied, 117 S. Ct.
357 (1996). Our actual holding in Lakoski, however, was more
modest: “Title VII provides the exclusive remedy for individuals
alleging employment discrimination on the basis of sex in federally
funded educational institutions.” Id. at 753. Before Lakoski, we
had stated in Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir.),
reh’g denied, 989 F.2d 179 (5th Cir. 1993), that employees who
bring Title IX claims must rely on Title VI’s intentional
discrimination standard rather than the more expansive disparate
impact standard contained in Title VII. As we explained in
Lakoski, 66 F.3d at 758 n.5, we retreated from this position when
we denied Chance’s petition for rehearing: “In light of the court’s
factual findings, we conclude that Dr. Chance could not establish
a prima facie case of disparate impact sexual discrimination, . .
. and we therefore need not decide whether her claim should have
been analyzed under that standard.” 989 F.2d at 180. Whatever
precedential weight the first Chance opinion retains, and whatever
the persuasive power of Lakoski, those cases concerned
discrimination in employment. Neither case addressed the question
of whether a school district can be liable either vicariously or on
a constructive-notice theory under Title IX when a teacher harasses
a student.
We recognize the effort to end discrimination in education and
have acknowledged the importance of applying equal protection law
in schools as well as in the workplace to protect students from
sexual predators such as John Contreras. Doe v. Taylor Indep.
17 School Dist., 975 F.2d 137, 149 (5th Cir. 1992), cert. denied, 506
U.S. 1087 (1993).3 That said, we cannot take liberties with
statutory language or with the reasoning of the Supreme Court.
Franklin’s single citation to Meritor Savings to support the
Court’s conclusion that sexual harassment is sex discrimination
does not by itself justify the importation of other aspects of
Title VII law into the Title IX context. We can find nothing in
Franklin to support the trial court’s theory that Title IX can make
school districts liable for monetary damages when the district
itself engages in no intentional discrimination. There is nothing
to suggest that Congress intended such a sweeping liability. More
to the point, there is nothing to give notice to the recipient of
federal funds that the funds carry the strings of such liability.
To ignore this reality is to ignore that Congress acted here under
the spending power.
Under Title VII law, an employer has constructive notice of
sexual harassment if it “knew or should have known” that the
harassment was taking place. Farpella-Crosby v. Horizon Health
Care, 97 F.3d 803, 806 (5th Cir. 1996). In other words, if an
employer fails to exercise reasonable care in learning of sexual
harassment by employees, Title VII treats the employer as if it had
actual notice of the harassment. As other courts have remarked,
3 We note that students abused by teachers in public schools have some degree of protection under federal statutes. If the teacher acts under color of state law in pursuing a sexual relationship with a student, the student can rely on 42 U.S.C. § 1983 for recovery. See Doe v. Rains County Indep. School Dist., 66 F.3d 1402, 1406-07 (5th Cir. 1995).
18 the constructive-notice standard is essentially grounded in
negligence. See Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465
(7th Cir. 1990) (explaining that an employer’s liability for
hostile-environment sexual harassment is based on “a negligence
standard that closely resembles the ‘fellow servant’ rule” rather
than on respondeat superior); Bruneau v. South Kortright Central
School Dist., 935 F. Supp. 162, 173 (N.D.N.Y. 1996) (refusing to
use Title VII’s constructive-notice standard in a student-on-
student Title IX harassment case because “[c]onstructive notice .
. . is, in essence, a negligence standard”).
Although the school district may be somewhat less vulnerable
under the constructive-notice standard than under the pure agency
standard, we think that importing this aspect of Title VII law
stretches Title IX beyond its language and purpose. Congress did
not enact Title IX in order to burden federally funded educational
institutions with open-ended negligence liability.
In prohibiting employment discrimination, Title VII
establishes limits on liability to ensure that private actions
against employers do not become excessive. See 42 U.S.C. § 1981a
(establishing monetary ceilings on compensatory damages for private
actions brought under Title VII or under the Americans with
Disabilities Act);4 42 U.S.C. § 2000e-5 (setting out detailed
4 Because Congress added these caps on damages to Title VII in 1991, the limitation on employers’ liability does not illuminate Congress’s understanding when it passed Title IX in 1972. The omission of Title IX from § 1981a may suggest, however, that in 1991 Congress did not view Title IX as the kind of legislation that could generate expansive liability. Of course, the availability of money damages under Title IX was an open question until 1992, when
19 procedures under Title VII for the EEOC and for private claimants,
including a statute of limitations of less than one year).
Employers have the benefit of detailed regulations that can help
them avoid illegal employment practices. See 29 C.F.R. §§ 1600-
1691. Title VII regulations state forthrightly that “an employer
. . . is responsible for its acts and those of its agents and
supervisory employees with respect to sexual harassment . . . .”
29 C.F.R. § 1604.11. Title IX, by contrast, does not create any
administrative body to regulate private claimants’ rights, and the
regulations promulgated under Title IX make no mention of sexual
harassment. See 34 C.F.R. §§ 106.1-106.71 (Title IX regulations);
34 C.F.R. §§ 100.6-100.11 (Title VI procedural regulations
incorporated by reference into Title IX regulations). As Franklin
teaches, this does not mean that private parties may not recover
damages under Title IX for sexual harassment. Rather, it means
that we should be reluctant to treat Title IX’s anti-discrimination
provisions in the same way that we treat Title VII’s provisions.
Our recent decision in Rowinsky v. Bryan Indep. School Dist.,
80 F.3d 1006 (5th Cir.), cert. denied, 117 S. Ct. 165 (1996)
supports our conclusion that Title IX requires a showing of actual,
intentional discrimination on the part of the school district. The
plaintiff in Rowinsky argued that Title IX requires a school
the Supreme Court handed down Franklin. But this sequence of events does not undermine our view that Title IX does not create negligence liability on the part of educational institutions. Rather, it supports our contention that Franklin did not sanction private Title IX actions when the educational institution itself has not intentionally discriminated.
20 district to pay money damages when it permits students to harass
one another based on sex. We held that Title IX does not authorize
damages for student-on-student sexual harassment “absent
allegations that the school district itself directly discriminated
based on sex.” 80 F.3d at 1008. We reserved the question of
whether the district can discriminate vicariously through its
agents. See id. at 1011 n.10.5 But we examined Title IX’s
structure and legislative history and concluded that the statute is
“not a panacea for all types of sex discrimination, but rather a
limited initial attempt to end discrimination by educational
institutions.” Id. at 1014. As a tool for curbing discrimination
in education, Title IX merely places conditions on the recipients
of federal funds. We pointed out in Rowinsky that if the acts that
create liability are likely to occur and are out of the control of
the school district, the grant recipients might prefer to decline
the federal money. Id. at 1013. The same reasoning applies in
this case. Unfortunately, it is increasingly evident from our
docket that sexual harassment and molestation of students by
5 The dissenting member of the Rowinsky panel cited Franklin to support his view that a school district is subject to liability when it actually knows of student-on-student sexual harassment and fails to take appropriate corrective action. Id. at 1023-24 (Dennis, J., dissenting). In response, the panel majority asserted that “sexual harassment by a teacher falls within the framework of Meritor because a teacher is an employee of the grant recipient. Thus, like the normal sexual harassment case, it is an agent of the defendant who is guilty of the harassment.” Id. at 1011 n.11. Not only was this assertion dictum, but it failed to counter the dissent’s line of argument, which relied on the school board’s actual knowledge of the harassment rather than on the notion that a student could be an agent of the school district. See id. at 1020 n.7 (Dennis, J., dissenting).
21 teachers is not uncommon and may be a widespread phenomenon. It is
unlikely that when Congress enacted Title IX, it wanted to make
funding contingent upon whether a school district succeeds in
preventing teachers from cultivating covert sexual relationships
with students. Some might suggest that the approach we adopt today
creates incentives for school boards to stick their heads in the
sand. Our response is two-fold. First, we are not writing here as
a common-law court. We are interpreting a federal statute.
Second, school boards that adopt a head-in-the-sand policy would be
foolish indeed, morality aside, because they would encounter other
problems, such as the threat of liability under 42 U.S.C. § 1983.
The Department of Education’s Office of Civil Rights has
recently issued proposed guidelines that conflict with our analysis
of tort liability under Title IX. See 61 Fed. Reg. 52,172 (October
4, 1996) (“Sexual Harassment Guidance: Harassment of Students by
School Employees”); 61 Fed. Reg. 42,728 (August 16, 1996) (“Sexual
Harassment Guidance: Peer Sexual Harassment”). These guidelines
advocate the adoption of Title VII principles in cases such as this
one: “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.” 61 Fed. Reg. at
52,173.6 In general, “[w]hen interpreting title IX we accord the
6 The guidelines’ understanding of Title VII law, however, is so expansive that it is difficult to distinguish from the agency theory we discuss above in Part II.A. See 61 Fed. Reg. 52,172, 52,177 (“[S]o long as an agent or responsible employee of the recipient received notice, that notice will be imputed to the
22 OCR’s interpretations appreciable deference.” Rowinsky, 80 F.3d at
1015 n.20. See also Leija, 101 F.3d at 406 (Dennis, J.,
dissenting) (urging adoption of the OCR’s proposed guidelines).
But we cannot apply these guidelines retroactively. As we have
explained, recipients of Title IX funds are bound by their
agreement with the federal government. The government can add
strings to the Title IX funds as it disburses them. But it cannot
modify past agreements with recipients by unilaterally issuing
guidelines through the Department of Education. As far as this
case is concerned, the proposed guidelines do not apply. We make
no comment on how these guidelines might affect cases in which a
school district accepts Title IX funds after the guidelines’
promulgation date.
III.
Having rejected the pure agency and constructive-notice
theories, we are left with the rule that a school district is not
liable under Title IX for a teacher’s sexual harassment unless it
has actual notice of the harassment. In order to flesh out the
notion of actual notice, we borrow from recent discussions of the
concept of deliberate indifference. Although these cases arose in
very different areas of substantive law, they share with this case
the problem of grasping what it means to harm someone intentionally
by disregarding her plight.
recipient.”); id. at 52,172-73 (“A school’s liability for sexual harassment by its employees is determined by application of agency principles, i.e., by principles governing the delegation of authority to or authorization of another person to act on one’s behalf.” (footnote omitted)).
23 In Farmer v. Brennan, 114 S. Ct. 1970 (1994), the Supreme
Court faced the question of what sort of conduct should count as
deliberate indifference when an inmate brings a civil suit against
prison officials for prison conditions that violate his Eighth
Amendment rights. Deliberate indifference falls generally within
the category of recklessness. Id. at 1978. But the Court
recognized a distinction between recklessness as “fail[ing] to act
in the face of an unjustifiably high risk of harm that is either
known or so obvious that it should be known” and recklessness as
disregarding a risk of harm that is actually known. Id. at 1978-
79. The former amounts to objective recklessness, the latter to
subjective recklessness. The Court adopted the subjective
standard: “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 1979. It
considered an objective, constructive-notice standard, id. at 1980-
81 (discussing City of Canton v. Harris, 489 U.S. 378 (1989)), but
it concluded that such a standard is not appropriate because the
liability of prison officials does not turn on inadequate training
or supervision. Id. at 1981. Instead, it turns on whether the
officials have punished the prisoner, and “prison officials who
lack[] knowledge of a risk cannot be said to have inflicted
punishment.” Id. at 1982. We have recently followed the Farmer
standard in analyzing jail officials’ liability under the Due
Process Clause for jail conditions imposed on pretrial detainees.
24 Hare v. City of Corinth, 74 F.3d 633, 648-50 (5th Cir. 1996) (en
banc).
These cases construing the test for deliberate indifference
are helpful because they highlight the distinction between an
intentional wrong and a wrong that flows from mere neglect. As we
have explained, Title IX liability depends on a school district’s
act of discriminating on the basis of sex. Just as a prison
official has not punished an inmate unless he actually knows of a
danger to the inmate and chooses not to alleviate the danger, a
school district has not sexually harassed a student unless it knows
of a danger of harassment and chooses not to alleviate that danger.
Although drawn from a different body of law, Farmer and Hare
clarify the indispensable role that deliberate action plays when
liability stems from intentional conduct such as punishing or
discriminating.
The reasoning in Farmer and Hare also clarifies what a school
district must know before being held liable. Students need not
show that the district knew that a particular teacher would abuse
a particular student; the plaintiff could prevail in this case, for
example, by establishing that the school district failed to act
even though it knew that Contreras posed a substantial risk of
harassing students in general. But Title IX liability for sexual
harassment will not lie if a student fails to demonstrate that the
school district actually knew that the students faced a substantial
threat of sexual harassment. In other words, the district can
escape liability if it can show “that [it] did not know of the
25 underlying facts indicating a sufficiently substantial danger and
that [it was] therefore unaware of a danger, or that [it] knew the
underlying facts but believed (albeit unsoundly) that the risk to
which the facts gave rise was insubstantial or nonexistent.”
Farmer, 114 S. Ct. at 1982. Any lower standard would veer in the
direction of an objective test, which is necessarily “redolent with
negligence and its measures.” Hare, 74 F.3d at 650.
IV.
One major question remains before we can resolve this appeal.
To this point, we have referred simply to the school district’s
knowledge and the school district’s actions. But the district
knows and acts only through individuals, whether they be members of
the school board, administrators at particular schools, or
classroom teachers. We have yet to decide which individuals within
the school district must have known of Contreras’s abuse of Deborah
in order for us to conclude that the school district knew of the
abuse.
At one end of the spectrum, liability might lie only when a
member of the school board actually knows of the abuse and fails to
take prompt remedial action. Under this rule, a school district
would virtually never face penalties for sexual abuse of students
unless school board members themselves intended the harm. By the
same token, victims of abuse would virtually never be able to
recover, especially in large school districts, in which school
board members have little contact with the day-to-day interactions
between teachers and students. At least one court seems to have
26 adopted such a rule. See Floyd v. Waiters, 831 F. Supp. 867, 876
(M.D. Ga. 1993) (“This court finds no basis for plaintiffs’ Title
IX claim. Assuming that [the school security guard’s] assaults on
plaintiffs constitute discrimination based upon sex, the Board had
no part in this discrimination.”). At the other end of the
spectrum, liability might lie whenever any school employee other
than the perpetrator has actual knowledge of the abuse and fails to
take prompt remedial action. Although more protective of victims
of abuse, this scheme would vitiate the premise that has guided our
analysis of Title IX sexual-abuse cases: that Title IX creates
liability for school districts only when the school district
intentionally breaks the strings attached to those funds.
Formulating the sort of meaningful tort liability envisaged by
the Franklin Court while recognizing that Title IX generates
liability only for intentional wrongs requires us to chart a middle
way between these extremes. As we noted in Leija, 101 F.3d at 401,
school districts contain a number of layers of responsibility below
the school board: superintendents, principals, vice-principals, and
teachers and coaches, not to mention specialized counselors such as
Title IX coordinators. Different school districts may assign
different duties to these positions or even reject this traditional
hierarchical structure all together. We do not wish to restrict
the applicability of our analysis by keying liability to certain
job titles within the school system. Whether the school official
is a superintendent or a substitute teacher, the relevant question
27 is whether the official’s actual knowledge of sexual abuse is
functionally equivalent to the school district’s actual knowledge.
We hold 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. This inquiry
circumscribes those school employees in the chain of command whom
the school board has appointed to monitor the conduct of other
employees and, as distinguished from reporting to others, remedy
the wrongdoing themselves. At the same time, it locates the acts
of subordinates to the board at a point where the board’s liability
and practical control are sufficiently close to reflect its
intentional discrimination. It does so by omitting the bulk of
employees, such as fellow teachers, coaches, and janitors, unless
the district has assigned them both the duty to supervise the
employee who has sexually abused a student and also the power to
halt the abuse.
This middle ground parallels the Title VII standard for when
an employee’s knowledge of workplace harassment counts as knowledge
on the part of the employer. Under Title VII, “immediate
supervisors are Employers when delegated the employer’s traditional
rights, such as hiring and firing.” Harvey v. Blake, 913 F.2d 226,
227 (5th Cir. 1990). In order to prevent Title VII liability,
these supervisors “must take prompt and appropriate remedial
action, ‘reasonably calculated’ to end the harassment.” Waltman v.
28 International Paper Co., 875 F.2d 468, 479 (5th Cir. 1989) (quoting
Jones v. Flagship Int’l, 793 F.2d 714, 719-20 (5th Cir. 1986),
cert. denied, 479 U.S. 1065 (1987)).
To some extent, Title VII cases may be helpful in determining
which school officials make personnel decisions on behalf of the
school board. But our willingness to hold a school district liable
based on the intentional inaction of its supervisory employees does
not mean that Title IX claims are governed by Title VII law. When
a school board confers on a school official the power to take such
personnel actions, it makes a deliberate, considered judgment about
what sort of leadership the district should have; it decides who
acts for the board. We have rejected the agency theory and Title
VII’s constructive-notice theory because they violate the principle
that penalties for failures to comply with conditions on the
disbursement of Spending Clause funds are contractual in nature.
Without notice of potential liability for the negligence of
supervisory employees, the government may not impose damages on a
school board based on its acceptance of Title IX funds. However,
the connection to board action is stronger and the need for notice
of potential liability weaker when the board projects its authority
by granting an employee the power to hire, fire, and make other
employment decisions. Neither the text of Title IX nor the
Franklin decision gave the board notice that the district would be
liable for Contreras’s sexual abuse, even if the district’s
management was negligent. But Franklin’s endorsement of a private
cause of action should have put the board on notice that it would
29 be liable if it installed school leadership that intentionally
discriminated on the basis of sex. Reading Franklin to impose
liability only where the board itself knows of a student’s sexual
harassment at the hands of a teacher would make the private cause
of action nearly meaningless.
As in Title VII cases, “[w]hat is appropriate remedial action
will necessarily depend on the particular facts of the case — the
severity and persistence of the harassment, and the effectiveness
of any initial remedial steps.” Waltman, 875 F.2d at 479. Of
course, prompt termination or suspension of the offender would
ordinarily be sufficient. In some situations, transferring the
teacher to another school might be adequate. But merely reporting
the abuse to superiors or to law enforcement is insufficient.
Anyone can make reports. Indeed, Texas law imposes a duty to
report child abuse. See Tex. Fam. Code Ann. § 261.101(a) (West
1996) (requiring an immediate report to state authorities by any
“person having cause to believe that a child’s physical or mental
health or welfare has been or may be adversely affected by abuse or
neglect”); id. § 261.101(b) (“If a [teacher] has cause to believe
that a child has been or may be abused or neglected, the [teacher]
shall make a report not later than the 48th hour after the hour the
[teacher] first suspects that the child has been or may be abused
or neglected.”). In order to qualify as a supervisory employee
whose knowledge of abusive conduct counts as the district’s
knowledge, a school official must at least serve in a position with
the authority to ”repudiate that conduct and eliminate the hostile
30 environment” on behalf of the school district. Nash v.
Electrospace System, Inc., 9 F.3d 401, 404 (5th Cir. 1993) (per
curiam) (emphasis supplied).
V.
By instructing the jury that the school district could be
liable for the negligence of its employees, the district court
misstated Title IX law. Consequently, we reverse the judgment.
Finally, we note that the district court’s jury instructions
did not confine any award of damages to the acts of discrimination
chargeable to the school district. Under the standard we announce
today, the school district can be liable, if at all, only for the
damages caused by its intentional acts of discrimination. If the
conduct has ceased by the time a supervisory employee of the sort
we describe here learns of it, there is no liability in a private
suit for that conduct based on some personal failure to take
“proper remedial action” thereafter.
REVERSED AND REMANDED.