Rowinsky v. Bryan Independent School District

80 F.3d 1006

Opinions

JERRY E. SMITH, Circuit Judge:

This appeal presents the question of whether title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“title IX”), imposes liability on a school district for peer hostile environment sexual harassment.¹ We conclude that title IX does not impose such liability, absent allegations that the school district itself directly discriminated based on sex. Accordingly, the judgment of the district court is affirmed.

I.

During the 1992-93 school year, students proceeding in this litigation under the pseudonyms of Jane and Janet Doe were eighth graders at Sam Rayburn Middle School in the Bryan Independent School District (“BISD”) who rode a BISD school bus to and from school. Boys and girls were required to sit on different sides of the bus, and the bus driver, Bob Owens, enforced the restriction, even, on occasion, telling Jane and Janet not to sit on the boys’ side of the bus.

Beginning in September 1992, a male student, whom we identify only by his initials, “G.S.,” physically and verbally abused Janet on the bus. G.S. regularly swatted Janet’s bottom whenever she walked down the aisle and made comments such as, “When are you going to let me fuck you?”, “What bra size are you wearing?”, and “What size panties are you wearing?” He also called Janet a “whore.” At one point, G.S. groped Janet’s genital area.

Janet complained to Owens no fewer than eight times that G.S. had swatted her and Jane on their bottoms and used foul language. Owens took down names on a pad of paper. Janet eventually stopped reporting the incidents.

On September 24, G.S. grabbed Jane in her genital area, and, a few minutes later, grabbed her breasts. Jane, Janet, and their parents visited Assistant Principal Randy Caperton the next day to complain about the incident.² Caperton told the Rowinsky family that he had already heard about the sexual assault from another student and that he believed the nature of the assault merited expelling G.S. Caperton suspended G.S. from riding the bus for three days and required him to sit in the second row behind the driver.

On September 29, Mrs. Rowinsky visited Caperton again to discuss the incident, complaining that other girls were being harassed on the bus. Caperton showed her a bus report that documented the incident with Jane. The report, however, contained numerous inaccuracies, including the fact that it did not name G.S. and listed the wrong date and length of punishment. Caperton corrected the assailant’s name in a new report.

The three-day suspension did not deter G.S. He violated the seating requirement, and, as a result, Owens restricted Jane and Janet to the front of the bus. Mrs. Rowin-sky called Jay Anding, assistant director of the transportation office, and demanded that he restrict G.S. to the second row seat because of the continuing remarks and misbehavior. Anding told Mrs. Rowinsky that he would speak with Owens. In late November 1992, G.S., with Owens nearby, called the girls offensive names and slapped Janet’s buttocks. Owens did nothing, and the girls did not file any complaints.

One morning in December 1992, another male student, whose initials are “L.H.,” reached up Janet’s skirt, made a crude remark about what he almost touched, and then grabbed her genital area. Janet complained to Owens at the next stoplight, but he “just stared into space.” On the afternoon of December 16, L.H. reached up Jane’s skirt, touching her near her panty line. Jane did not tell Owens about the incident.

On December 18, Mrs. Rowinsky contacted Anding regarding L.H.’s behavior and told Anding that other girls were being sexually assaulted and gave him their names. Anding said he would investigate the alleged problems on the bus and take action.

On January 12, 1993, Mrs. Rowinsky contacted Caperton to find out the results of the investigation. Caperton told her that Anding had not conducted the investigation but that L.H. had been suspended for three days.³

On January 13, Mrs. Rowinsky contacted Dr. Tom Purifoy, BISD director of secondary education, and described the assaults to him. Purifoy did not conduct an independent investigation but referred her to C.W. Henry, Anding’s assistant.

On January 14, after reviewing videotapes from the bus, Henry assigned a new driver to replace Owens. There are no further allegations of harassment by G.S. thereafter.

On January 19, the driver assigned Jane the seat next to G.S. Although G.S. made no new assaults, Mrs. Rowinsky removed her daughters from the bus and, on January 22, requested that Purifoy remove G.S. from the bus. Purifoy refused to take any further action against G.S. without proof of the assaults from juvenile records.

On March 30, during class, a third male student, with the initials “F.F.,” reached under Janet’s shirt and unfastened her bra. The teacher in the classroom sent both students to Vice-Principal Sandra Petty, who sent Janet back to class and suspended F.F. for the rest of the day and the next day. F.F. is not alleged to have harassed or abused the girls further. The next day, Mrs. Rowinsky visited Petty and complained about F.F.’s behavior; Petty responded that she did not consider F.F.’s conduct to be sexual.

On March 30, Mrs. Rowinsky and her attorney met with Dr. Sarah Ashburn, BISD superintendent, to complain about G.S.’s behavior. Ashburn said the three-day bus suspension was sufficient punishment. She did not inform them about the existence of title IX or any title IX grievance procedures.

On May 4, Mrs. Rowinsky met with Ash-burn and complained about her failure to take action against G.S. and L.H. Ashburn considered her actions against G.S. sufficient and informed Mrs. Rowinsky that she did not deem what had happened to Jane and Janet to be assaults. She refused to take further action, in part because L.H. was no longer a student in BISD. Mrs. Rowinsky told Ash-burn that she intended to file a grievance with the United States Department of Education Office of Civil Rights (“OCR”).

II.

Debra Rowinsky brought this action for herself⁴ and as next friend, on behalf of her minor daughters, Jane and Janet Doe, and all those similarly situated,⁵ alleging that BISD and its officials⁶ condoned and caused hostile environment sexual harassment.⁷ Specifically, the complaint asserts that Janet was sexually harassed at Sam Rayburn Middle School (“the school”) by a student and that Jane and Janet were sexually harassed by other school children while riding the BISD school bus. Rowinsky seeks declaratory and injunctive relief, as well as compensatory damages and attorney’s fees under title IX.

The district court held that Rowinsky had failed to state a claim under title IX because there was no evidence that BISD had discriminated against students on the basis of sex; Rowinsky had failed to provide evidence that sexual harassment and misconduct was treated less severely toward girls than toward boys.

The court relied on a number of facts. The first was that boys who assaulted boys were punished in the same fashion as boys who assaulted girls. The court concluded that any disparity in punishments between particular incidents was not made on the basis of sex, because the individual incidents involved different levels of physical conduct. Moreover, misconduct by one of the harasses was never reported by the students. The second factor was that any failure to train employees would harm male and female victims of harassment equally.

III.

Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activities receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (1993). At issue here is whether a school district may be liable under title IX when one student sexually harasses another.⁸ At a broader level of generality, we are asked to decide whether the recipient of federal education funds can be found liable for sex discrimination when the perpetrator is a party other than the grant recipient or its agents.⁹

The linchpin of Rowinsky’s theory is the assumption that a grant recipient¹⁰ need not engage in prohibited conduct to violate title IX. The specific statutory phrase at issue is the prohibition that “[n]o person be subjected to discrimination under any educational program or activities.” Rowinsky focuses solely upon that phrase and argues that “under” means “in” and not “by.” By making this substitution, she reasons that the statute eannot be limited to acts of discrimination by grant recipients.¹¹

A.

As with any statute, our starting point in determining the scope of title IX is the statutory language. Bailey v. United States, — U.S. -, -, 116 S.Ct. 501, 504, 133 L.Ed.2d 472 (1995); North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 520, 102 S.Ct. 1912, 1917, 72 L.Ed.2d 299 (1982). Rowinsky’s interpretation of title IX relies on isolating the prohibition against discrimination and recognizing that the statutory phrase does no.t, on its own, limit title IX to the acts of grant recipients. Determining the plain meaning of a statutory word or phrase, however, is only the starting point in statutory construction. “We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. ‘[T]he meaning of statutory language, plain or not, depends on context.”’ Bailey, — U.S. at-, 116 S.Ct. at 506. Thus, even if, arguendo, “under” means “in,” this does not fully answer the interpretive question; we must look to the remainder of the statute to see whether there are any limits on “who” is prohibited from discriminating against students “in” an educational program.

We begin by noting that the text of title IX does not provide an unambiguous answer to the question. The title contains three general prohibitions: No person shall be excluded from participation in a program, denied the benefits of a program, or subjected to discrimination under a program. As is the case with the prohibition on discrimination, each of the other prohibitions, taken in isolation, is not explicitly limited to the acts of grant recipients.

Take, for example, the first prohibition. It reads as follows: No person ... shall ... be excluded from participation in ... any educational program.” Like the prohibition on discrimination, this proscription could encompass the acts of third parties.

On the other hand, the open-ended language of title IX does not support an inference that the statute applies to the conduct of third parties. Title IX was drafted in a way that identifies a benefited class in order to imply a private right of action.¹² Congress did not simply prohibit grant recipients from engaging in certain conduct, because to do so would be inconsistent with creating justiciable rights for its beneficiaries. Thus, the language of title IX is driven not by the desire to leave the class of wrongdoers undefined, but by the nature of the right protected.¹³

Despite the ambiguity in the text, three factors weigh in favor of interpreting title IX to impose liability only for the acts of grant recipients. The first is the scope and structure of the title itself; the second is the legislative history; the third is agency interpretations of the statute.

B.

The fact that title IX was enacted pursuant to Congress’s spending power is evidence that it prohibits discriminatory acts only by grant recipients. As an exercise of Congress’s spending power,¹⁴ title IX makes funds available to a recipient in return for the recipient’s adherence to the conditions of the grant. While it is plausible that the condition imposed could encompass ending discriminatory behavior by third parties, the more probable inference is that the condition prohibits certain behavior by the grant recipients themselves.

This is so because the value of a spending condition is that it will induce the grant recipient to comply with the requirement in order to get the needed funds. In order for the coercion to be effective, the likelihood of violating the prohibition cannot be too great This is especially true when the spending condition also includes an implied right of action.

Imposing liability for the acts of third parties would be incompatible with the purpose of a spending condition, because grant recipients have little control over the multitude of third parties who could conceivably violate the prohibitions of title IX.¹⁵ Thus, the possibility of a violation would be so great that recipients would be induced to turn down the grants. We find it unlikely that Congress would impose conditions on federal funds that would render the funds so unattractive to potential recipients, because to do so would render the conditions almost useless.

The structure of title IX supports the conclusion that the spending conditions apply only to the conduct of grant recipients. With the exception of the one phrase upon which Rowinsky relies, the statute discusses discrimination by grant recipients. For example, numerous provisions exempt certain entities from coverage.¹⁶ Other provisions exempt certain practices.¹⁷ The statute’s emphasis on grant recipients supports a conclusion that the statute applies only to the practices of the recipients themselves.

C.

The legislative history of title IX also supports limiting the statute to the practices of grant recipients. The Supreme Court has repeatedly stated that the purpose of title IX is to prevent discrimination by grant recipients. In Cannon, the Court reviewed the legislative history of title IX and concluded that

title IX, like its model title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices. Both of these purposes were repeatedly identified in the debates on the two statutes.

441 U.S. at 704, 99 S.Ct. at 1961 (emphasis added).¹⁸

Throughout the legislative history, both supporters and opponents of the amendment focused exclusively on acts by the grant recipients. Senator Bayh introduced the amendment and listed the types of sex discrimination, all by grant recipients, that prompted the legislation. 118 Cong.Rec. at 5803 (1972) (“It is clear to me that sex discrimination reaches into all facets of education- — -admissions, scholarship programs, faculty hiring and promotion, professional staffing, and pay scales.”). The senator described the “heart” of the amendment as “a provision banning sex discrimination in educational programs receiving Federal funds. The amendment would cover such crucial aspects as admissions procedures, scholarships, and faculty employment, with limited exceptions.” Id.19

Numerous other statements support the conclusion that title IX targets only acts by the grant recipients. Senator Bayh discussed the general prohibition against sex discrimination:

Central to my amendment are sections 1001-1005, which would prohibit discrimination on the basis of sex in federally funded education programs....

This portion of the amendment covers discrimination in all areas where abuse has been mentioned — employment practices for faculty and administrators, scholarship aid, admissions, access to programs within the institution such as vocational education classes, and so forth.

118 Cong.Rec. at 5807. In a colloquy with Senator Pell, Senator Bayh stated:

As the Senator knows, we are dealing with three basically different types of discrimination here. We are dealing with discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever.

Id. at 5812.

The drafters of title IX recognized that it was not a panacea for all types of sex discrimination, but rather a limited initial attempt to end discrimination by educational institutions. Again, Senator Bayh recognized that

[w]hile the impact of this amendment would be far-reaching, it is not a panacea. It is, however, an important first step in the effort to provide for the women of America something that is rightfully theirs — an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of them choice with equal pay for equal work.

Id. at 5808.

Further evidence that title IX was not intended as a cure for all types of discrimination comes from the fact that the original amendment mandated a study of sex discrimination in order to suggest further legislative remedies. Id. at 5803. Such a requirement — and the recognition that further legislation might be necessary — -would be superfluous under Rowinsky’s interpretation of title IX.

D.

The OCR’s interpretation of title IX is consistent with refusing to impose liability for the acts of third parties.²⁰ The primary interpretation of title IX is found in its implementing regulations. See 34 C.F.R. § 106.31. The entire section is devoted to acts by the recipients themselves.²¹

The most definitive statement by the OCR on sexual harassment focuses on conduct by employees or agents of the recipient. The OCR’s Policy Memorandum contains the following definition:

Sexual harassment consists of verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of the recipient, that denies, limits, provides different, or conditions the provision of aid, benefits, services or treatment protected under title IX.

OCR Policy Memorandum from Antonio J. Califa, Director of Litigation, Enforcement, and Policy Service, to Regional Civil Rights Directors (Aug. 31, 1981) (emphasis added). In particular, the agency left unresolved the issue of peer sexual harassment. Id. at 10 (“The other unresolved issue relates to a recipient’s responsibility for the sexual harassment acts of students against fellow students in the context of the situation in which neither student is in a position of authority, derived from the institution, over the other students.”).²²

The only OCR documents to apply title IX to peer sexual harassment, i.e., recent Letters of Finding, should be accorded little weight. Any weight the letters do have are outweighed by both the implementing regulations and the Policy Memorandum promulgated by the OCR. As a legislative regulation, the implementing regulations found at 59 C.F.R. § 106 are accorded far greater deference than are interpretive regulations such as Letters of Finding. Harris, 622 F.2d at 613. The Policy Memorandum deserves more deference because it represents a deliberate policy statement by the agency and is consistent with past agency interpretations. See id.

Even standing alone, the Letters of Finding should be accorded very little deference, because none of the traditional factors supporting deference are present. The letters are promulgated during investigations of specific institutions, and their purpose is to compel voluntary compliance by an offending institution. See Doe v. Petaluma City Sch. Dist. 54 F.3d 1447, 1456 (9th Cir.1995). Because of the pressures to settle in an investigation, the circumstances surrounding their promulgation are significant. Accord Harris, 622 F.2d at 613. In addition, the OCR has only recently treated complaints of peer harassment as within its jurisdiction. Id. Finally, the letters do not reflect the deliberate consideration of a rulemaking proceeding. Id.

The only agency interpretation to support Rowinsky’s position involves title VI. The OCR considers peer hostile environment racial harassment a violation of title VI. 59 Fed.Reg. 11448, 11449 (1994). Nothing in the regulations or commentary explains why title VI applies to the acts of non-recipients. The only analysis the OCR makes is to cite title VTI cases for the proposition that a hostile environment can be discrimination. Id. at 11451. Absent a reasoned explanation for why the statutory language supports applying title VI to peer harassment, the OCR’s interpretation should not be accorded any deference.

IV.

This case was decided by the district court on motion for summary judgment. On the question of whether there was a genuine issue of material fact as required by Fed. R.Civ.P. 56, we conclude that under the legal standard articulated by the district court, and affirmed by this court, the plaintiff has failed to allege or provide evidence that supports a cause of action under title IX.

The mere existence of sexual harassment does not necessarily constitute sexual discrimination. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir.1982), adopted in Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Barnes v. Costle, 561 F.2d 983, 990 n. 55 (D.C.Cir.1977). Both men and women can be the victims or perpetrators of sexual harassment. Schneider, supra note 9, at 531 n. 30. For example, this circuit has recognized that same-sex sexual harassment is not always sex discrimination under title VII.²³ In the same vein, sexual overtures directed at both sexes, or behavior equally offensive to both males and females, is not sex discrimination. See Henson, 682 F.2d at 904.

In the case of peer sexual harassment, a plaintiff must demonstrate that the school district responded to sexual harassment claims differently based on sex. Thus, a school district might violate title IX if it treated sexual harassment of boys more seriously than sexual harassment of girls, or even if it turned a blind eye toward sexual harassment of girls while addressing assaults that harmed boys. As the district court correctly pointed out, however, Rowinsky failed to allege facts to support such a claim. The judgment is AFFIRMED.

1 . Title IX is enforceable through an implied right of action. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).

2 . The Rowinskys filed sexual assault charges against G.S. with the Biyan city police.

3 . L.H. is not alleged to have further harassed or abused the girls after his suspension.

4 . We conclude that Rowinsky does not have standing to assert a personal claim under title IX. It is undisputed that she has standing, as next of friend, to assert the claims of her daughters, but nothing in the statutory language provides her with a personal claim under title IX. Even assuming that title IX protects persons other than students and employees, Rowinsky has failed assert that she was excluded from participation, denied the benefits of, or subjected to discrimination under any education program or activity. Absent such a claim, the plain language of title IX does not support a cause of action by Rowin-sky.

5 . The district court did not rule on the request for class certification. The plaintiffs do not complain of that failure on appeal.

6 . The district court dismissed all claims against the officials of BISD, leaving the school district as the only defendant. Rowinsky has not appealed that decision.

7 . In his dissent, Judge Dennis opines that under the alleged facts, the school board "knowingly failed to take appropriate steps to protect Jane and Janet Doe from sexual harassment, abuse and discrimination....” Dissent at 2982. We express no normative view regarding BISD's conduct, for our duty as a court is only to decide whether the alleged conduct or neglect is actionable under title IX.

8 . Two months after this case was argued, the Eleventh Circuit held that title IX imposes liability on a school district for peer sexual harassment. Davis v. Monroe County Bd. of Educ., 74 F.3d 1186 (11th Cir.1996), suggestion for rehearing en banc filed. Nothing in Davis alters our analysis, however. As will become evident, we disagree with the Eleventh Circuit’s statutory construction and selective use of legislative history-

With the exception of the Eleventh Circuit, no circuit court of appeals has found a school district liable for peer sexual harassment. In a qualified immunity case, the Ninth Circuit assumed arguendo that title IX applies to peer harassment but granted immunity because the law was not clear at the time of the incident. See Doe v. Petaluma City Sch. Dist., 54 F.3d 1447 (9th Cir.1994) (denying relief on qualified immunity grounds but noting that under current law qualified immunity would not protect a school official from liability in a peer sexual harassment claim).

Another circuit assumed arguendo that sexual harassment by a third party is actionable under tille IX, but denied relief on alternative grounds. See Murray v. New York Univ. College of Dentistry, 57 F.3d 243 (2d Cir.1995) (finding no liability when patient harassed a dental student because the university did not have sufficient notice of the harassment). The analysis in Murray, however, is not persuasive, as the case should be properly understood as an employment suit: First, the court analyzed the case as an employment case. Second, the unique nature of dental and medical schools makes its students quasi-employees. See Lipsett v. University of P.R., 864 F.2d 881, 897 (1st Cir.1988) (applying title VII standards to a peer harassment case in a medical school because medical students should be viewed as employees).

9 .The dissent, perhaps recognizing the weakness of Rowinsky’s argument, circumvents this issue by claiming that a student is an agent of the grant recipient. See Dissent at 1024 (citing Vernonia Sch. Dist. 47J v. Acton, — U.S.-, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)). The dissent's approach is novel and, in our view, erroneous.

Acton and its predecessor, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), stand for the proposition that the Constitution does not preclude a public school's having the power to discipline and control students who are in its care. Recognizing that a school has the power to discipline a student is a far cry from making the student an agent of the school. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995), also lends no support to the dissent’s theory. Even if, ar-guendo, there were an obligation to protect students from foreseeably dangerous harm, such a duty would not transform the relationship between school and student into an agency relationship. See also Walton v. Alexander, 44 F.3d 1297 (5th Cir.1995) (en banc) (no duty to protect student, attending voluntarily, from third party non-state actors).

10 . For purposes of this opinion, we refer to both the grant recipient and its agents as grant recipients.

11 . The second step in Rowinsky’s argument is to interpret the word "discrimination” to include hostile environment sexual harassment. See Davis, 74 F.3d at 1193 ("Thus, we conclude that as Title VII encompasses a claim for damages due to a sexually hostile working environment created by co-workers and tolerated by the employer, Title IX encompasses a claim for damages due to a sexually hostile educational environment created by a fellow student or students when the supervising authorities knowingly fail to act to eliminate the harassment.”) (footnote and citations omitted). We believe, however, that importing a theory of discrimination from the adult employment context into a situation involving children is highly problematic.

At a theoretical level, the problem with sexual harassment is "the unwanted imposition of sexual requirements in the context of unequal power.” Catherine MacKinnon, Sexual Harassment of Working Women 1 (1979). In an employment context, the actions of a co-worker sometimes may be imputed to an employer through a theory of respondeat superior.

In an educational setting, the power relationship is the one between the educational institution and the student. See Ronna G. Schneider, Sexual Harassment and Higher Education, 65 Tex. L.Rev. 525, 533-36 (1987). In the context of two students, however, there is no power relationship, and a theory of respondeat superior has no precedential or logical support. Unwanted sexual advances of fellow students do not carry the same coercive effect or abuse of power as those made by a teacher, employer or co-worker. This is not to say that the behavior does not harm the victim, but only that the analogy is missing a key ingredient — a power relationship between the harasser and the victim.

Even the dissent recognizes that employer liability for acts of non-supervisors is predicated on some theory of agency. See Dissent at 1020-1021 & n. 7 ("As explained in Meritor, ... an employer’s liability for 'hostile environment’ sex discrimination generally is based on the employer's failure to take reasonable corrective measures after receiving knowledge that an employee is being subjected to sexual harassment or abuse in the work environment by co-workers or non-employees over whom the employer has a degree of control or legal responsibility.”).

Title VII cases (cited by Rowinsky) that have found liability for harassment by third parties are inapplicable, because in those cases the power of the employer was implicated. See Sparks v. Regional Medical Ctr. Bd., 792 F.Supp. 735, 738 n. 1 (N.D.Ala.1992) (holding medical center responsible for sexual harassment of employee by independent-contractor physician); Powell v. Las Vegas Hilton Corp., 841 F.Supp. 1024 (D.Nev.1992) (blackjack dealer harassed by customers); Magnuson v. Peak Technical Servs., 808 F.Supp. 500 (E.D.Va.1992) (automobile supplier’s representative harassed by dealership manager).

The dissent's reliance on Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) for the inference that sexual harassment by students may be attributed to the school board is also misplaced. See Dissent at 1021, 1023. First, 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. Second, any language in Franklin regarding teacher-student sexual harassment, is pure dictum; the district court dismissed, and the Eleventh Circuit affirmed dismissal under Fed.R.Civ.P. 12(b)(6), based solely on the ground that compensatory relief was unavailable for violations of title IX. See Franklin v. Gwinnett County Pub. Sch., 911 F.2d 617, 618 (11th Cir.1990), rev’d, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

12 . Cannon, 441 U.S. at 690-93, 99 S.Ct. at 1955 ("There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory practices.”).

13 . Id. at 693 n. 13, 99 S.Ct. at 1955 n. 13 ("Put somewhat differently, because the right to be free of discrimination is a 'persona! one, a statute conferring such a right will almost have to be phrased in terms of the persons benefited.”).

14 . Although the Supreme Court has reserved the issue of whether title IX was enacted under the Spending Clause rather than § 5 of the Fourteenth Amendment, precedent strongly suggests that title IX, like its model, title VI, was enacted under the former. See Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 598-99, 103 S.Ct. 3221, 3230-31, 77 L.Ed.2d 866 (1983) (White, J.). In Guardians, at least five Justices held that title VI was enacted pursuant to the Spending Clause. See id. at 598-99, 103 S.Ct. at 3230-31 (White, J.); id. at 636-38, 103 S.Ct. at 3250-51 (Stevens, J. dissenting). Title IX was modeled after title VI and uses identical language, giving rise to an inference that title IX also was enacted pursuant to the Spending Clause.

An additional reason for interpreting title IX as a statute authorized by Congress's spending power is that the statute regulates purely private academic institutions. While the receipt of state funding may transform a private school into a state actor for Fourteenth Amendment purposes, the receipt of federal funds does not make a private school a state actor. Thus, any attempt to impose title IX liability on a private educational institution that receives no state funds would push the limits of the Fourteenth Amendment.

Finally, the Court has been cautious about attributing Congressional intent to act under its authority to enforce the Fourteenth Amendment, "[b]ecause such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981). Nothing in title IX demonstrates an intent to enforce the Fourteenth Amendment, and its language and structure demonstrate that it is a spending statute. "Surely Congress would not have established such elaborate funding incentives had it simply intended to impose absolute obligations on the States.” Id. at 18, 101 S.Ct. at 1540.

15 .Take, for example, a situation in which the parents of a female student discourage her from studying and taking advantage of opportunities at school because they believe that a woman should not concentrate on an education. If the school had knowledge of the parents' interference and did nothing to stop it, Rowinsky’s logic would make the school liable under title IX. The argument would proceed as follows: The girl is being subjected to discrimination because the parents are treating her differently from boys; the girl is being denied the full benefits of the educational program because of the discrimination; and the school has done nothing to stop the discrimination.

16 . See, e.g., § 1681(a)(3) (exempting religious institutions if title IX is inconsistent with the religious tenets of the organization); § 1681(a)(5) (exempting traditional single-sex colleges); § 1681(a)(7) (exempting Boys State and Girls State programs).

17 . See § 1681(a)(9) (beauty pageants).

18 . See also Grove City College v. Bell, 465 U.S. 555, 577, 104 S.Ct. 1211, 1223, 79 L.Ed.2d 516 (1983) (Powell, J., concurring) ("The sole purpose of the statute is to make unlawful ‘discrimination by recipients of federal assistance programs.”); id. at 585, 104 S.Ct. at 1227 (Brennan, J., concurring) ("As explained by its sponsor, the [precursor] amendment [to title IX] would have prohibited sex discrimination 'by any public institution of higher education or any institution of graduate education receiving Federal educational financial assistance.’ ”).

19 . Although the statements of one legislator made during debate may not be controlling, Senator Bayh's remarks, coming from the sponsor of the language ultimately enacted, have been treated as authoritative to the statute's construction. See North Haven, 456 U.S. at 526-27, 102 S.Ct. at 1920-21. See also Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976) (holding that statements by legislative sponsor "deserv[e] to be accorded substantial weight”).

20 . When interpreting title IX, we accord the OCR's interpretations appreciable deference. Cohen v. Brown Univ., 991 F.2d 888, 895 (1st Cir.1993). The deference accorded interpretive regulations depends on such factors as the circumstances of their promulgation, the consistency with which tire agency has adhered to the position announced, the evident consideration which has gone into its formulation, and the nature of the agency's expertise. Board of Educ. v. Harris, 622 F.2d 599, 613 (2d Cir.1979) (citing Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977)), cert. denied, 449 U.S. 1124, 101 S.Ct. 940, 67 L.Ed.2d 110 (1981). Legislative regulations are accorded more than mere deference or weight. Id.

21 . Both Rowinsky and some district courts take the language of the implementing regulations out of context to support extending title IX to peer harassment. See Patricia H. v. Berkeley Unified Sch. Dist., 830 F.Supp. 1288, 1289 (N.D.Cal.1993) (“The implementing regulations of title IX forbid any sex-based limitation 'in the enjoyment of any rights, privilege, advantage or opportunity’ related to federally funded education."). But, like any statute or regulation, the specific prohibition in 34 C.F.R. § 106.31(b)(7) must be read in context. The entire regulation is as follows:

(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:

(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.

Read in context, the regulation prohibits recipients from limiting the rights, privileges, advantages or opportunities of students. The regulation cannot reasonably be read to include the actions of third parties.

22 . It is no coincidence that the OCR leaves the issue of peer harassment unresolved. The OCR's source of jurisdiction over sexual harassment is 34 C.F.R. § 106.31(b). OCR Policy Memorandum at 1. As we have discussed, see supra note 19, § 106.31(b) prohibits discrimination by grant recipients. Sexual harassment by third parties is beyond the jurisdiction of the OCR unless the power of the school district is somehow implicated by the third party.

23 . See Blake v. City of Laredo, 58 F.3d 637 (5th Cir.1995) (per curiam) (unpublished) (holding that male-on-male sexual harassment does not state title VII claim); Garcia v. Elf Atochem N. Am., 28 F.3d 446, 452 (5th Cir.1994) (holding that male-on-male sexual harassment is not sex discrimination); Giddens v. Shell Oil Co., 12 F.3d 208 (5th Cir.1993) (per curiam) (unpublished) (holding that male-on-male harassment with sexual overtones is not sex discrimination without a showing that an employer treated the plaintiff differently because of his sex). But see Sardinia v. Dellwood Foods, 1995 WL 640502 (S.D.N.Y.1995); EEOC Guidelines on Sex Discrimination, 29 C.F.R. § 1604.11(b) (1986).