* District Judge of the Southern District of Texas, sitting by

designation. 

### 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

B efore 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 und er Title IX for teacher-student2

sex ual harassment based on a hostile educational environment, a

plaintiff must show that an employee who has been invested by the

school board w ith 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, th e 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.3

Deborah enrolled in the karate class largely because her two

sisters had e nrolled. 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 reg ular 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 rela tionship 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, the4

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 con fidentially 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 with5

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 Apr il 5 hearing and heard

Deborah describe her relationship with Contreras. The school

superinten dent, 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 mak e 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 to6

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 fo r 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 scho ol district could be vicariously liable for the

i ntentional 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 that1 The school district asked the court to instruct the jury that

“the San Elizario Indepen dent School District Board is the

policymaking official whose actions may be attributable t o 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 Title IX places on San Elizario Independent School

Dis trict 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.

Aft er 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 C ontreras’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

programor 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. C anutillo 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 cases8

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 lig ht 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 tha t 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 the9

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 actu ally 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 subj ected 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

h eld 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 sch ool district

itself had intent ionally discriminated. The Court cited M eritor

Sav. Bank v. Vinson

, 477 U.S. 57, 64 (1986), for the proposition

that sex discrimination includes sexual harassment. It then

e xplained that the rationale behind limiting remedies f o r2 In Rowinsky v. Bryan Indep. School Dist.

, 80 F.3d 1006, 1011

n.11 (5th Cir.)

, c ert. 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 d ictum within dictum and does not bind us

today. Even if we were to decide that F ranklin 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 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 end orsing 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 s hould 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). S ee also Davis v. Monroe County Bd. of Educ.

, 7411

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 F ranklin

, these courts

often point out that Title IX should have “a sweep as broad as its

language.” N orth 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 agencylike 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 M urray v. New York Univ.

College of Dentistry

, 57 F.3d 243, 249 (2d Cir. 1995), for example,

the court cited M eritor 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 M urray 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.12 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. S ee 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

violat ions of Title IX because “the receiving entity of federal

funds lacks n otice 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 reaso ning militates against the imposition of agency

principles. As a statute enacted under the Spending Clause, Title

I X 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 suffer13

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 spend ing 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. S ee 34 C.F.R.

§ 106.2(h) (1996) (defining “recipient” as the institution, entity,

or person that operates an e ducational 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. S ee Wright v. Mason City Community School Dist.

, 940 F.

Supp. 1412, 1420 (N.D. Iowa 1996) (explaining that because grant

recipients mu st have notice of potential liability, Title IX

plaintiffs must prove “that the educational institution knew of the

harassmen t and intentionally failed to take the proper remedial

measur es because of the plaintiff’s sex”); N elson v. Almont14

Community Schools , 931 F. Supp. 1345, 1354-56 (E.D. Mich. 1996)

(rejecting § 219 as a basis f or Title IX liability and requiring

k nowledge 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 principle s would create

liability for school districts in virtually every case in which a

teacher harasses, seduces, or sex ually 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 Contr eras’s chances of

initiating a sexual relationship with an adolescent such as Deborah15

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.

B.

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.’” W altman

v. International Paper Co.

, 875 F.2d 468, 478 (5th Cir. 1989)

(quoting Henson v. City of Dunde e , 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 an d 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. S ee, e.g.

, Burrow v.

Postville Community School Dist.

, 929 F. Supp. 1193, 1204 (N.D.16

Iowa 1996) (“The Supreme Court’s utilization of its Title VII case

law to interpret Title IX in Franklin strongly indicates that Title

V II 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.”). S ee 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 Titl e 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 . . . .”), c ert. denied

, 484 U.S. 849

(1987). We have cited M abry 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.” L akoski v.17

James , 66 F.3d 751, 757 (5th Cir. 1995), cert. denied , 117 S. Ct.

357 (1996). Our actual holding in L akoski

, however, was more

m odest: “Title VII provides the exclusive remedy for individuals

alleging employment discrimination on the basis of sex in federally

funded educational institutions.” I d. at 753. Before L akoski

, 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 r ather 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 cl aim should have

been analyzed under that standard.” 989 F.2d at 180. Whatever

precedential weight the first Chance opinion retains, and whatever

the persuas i ve 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 school s as well as in the workplace to protect students from

sexual predators such as John Contreras. D oe v. Taylor Indep.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

relationshi p with a student, the student can rely on 42 U.S.C. §

1983 for recovery. S ee Doe v. Rains County Indep. School Dist.

, 66

F.3d 1402, 1406-07 (5th Cir. 1995).

18 School Dist.

, 975 F.2d 137, 149 (5th Cir. 1992), cert. denied

, 506

U.S. 1087 (19 93). 3 That said, we cannot take liberties with

statutory language or with the reasoning of the Supreme Court.

Franklin ’s single citation to Mer itor Savings to support the

Court’s conclusion that s exual harassment is sex discrimination

does not by itself justify the importation of other aspects of

Title VII law int o 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 Tit le VII law, an employer has constructive notice of

sexual harassment if it “knew or should have known” that the

ha rassment was taking place. F arpella-Crosby v. Horizon Health

Care

, 97 F.3d 8 03, 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,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 the constructive-notice standard is essentially grounded in

negligence. S ee Guess v. Bethlehem Steel Corp.

, 913 F.2d 463, 465

(7th Cir. 1990) (explaining that an employer’s liabil ity 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. Sout h 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 st u dent-onstudent 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 ensu re 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 detailedthe 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 educatio n al 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 procedures under Title VII for the EEOC and for private claimants,

including a statute of limitations of less than one year).

E mployers have the benefit of detailed regulations that can help

them avoid illegal employment practices. S ee 29 C.F.R. §§ 1600-

1691. Title VII regulations state forthrightly that “an employer

. . . is responsible for its acts a nd 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

r egulations promulgated under Title IX make no mention of sex ual

harassment. S ee 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 F ranklin

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. de nied , 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 school5 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.” I d. 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 dist rict. S ee id. at

1020 n.7 (Dennis, J., dissenting).

21 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 discrimina t e vicariously through its

agents. S ee 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 ty pes of sex discrimination, but rather a

limited initial attempt to end di scrimination by educational

institutions.” I d. 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 R owinsky 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. I d. at 1013. The same reasoning applies in

this case. Unfortunately, it is increasingly evident from our

docket that sexual harassment and molestation of stud ents by6 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. S ee 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 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. S ee 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 f ailed to take

immediate and appropriat e steps to remedy it.” 61 Fed. Reg. at

52,173. 6 In general, “[w]hen interpreting title IX we accord therecipient.”); id. at 52,172-73 (“A scho ol’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 OCR’s interpretations appreciable deference.” R owinsky

, 80 F.3d at

1015 n.20. S ee also Leija

, 101 F.3d at 406 (Dennis, J.,

dissenting) (u rging adoption of the OCR’s proposed guidelines).

But we cannot apply these guidelines retroactively. As we have

explained, recipients of Title IX funds are bou nd 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 rec ipients 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 guideline s might affect cases in which a

school district accepts Title IX funds after the guid elines’

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.24

In Farmer v. Brennan

, 114 S. Ct. 1970 (1994), the Supreme

Court faced the question of w hat sort of conduct should count as

deliberate indifference when an inmate brings a civil suit against

pri son officials for prison conditions that violate his Eighth

Amendment rights. Deliberate indifference falls generally within

the category of recklessness. I d. 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 tha t 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 mu st also draw the inference.” I d. 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. I d. 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.” I d. at 1982. We have recently followed the F armer

standard in analyzing jail officials’ liability under the Due

Process Clause for jail conditions imposed on pretrial detainees.25

Hare v. City of Corinth

, 74 F.3d 633, 648-50 (5th Cir. 19 96) (en

banc).

These c ases 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 basi s 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 allevia te 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 delib erate 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 e stablishing 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 the26

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 ins ubstantial 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 co nclude that the school district knew of the

abuse.

At one end of the spectrum, liab ility 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 have27

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 sc hool 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 L eija

, 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 question28

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 teacherstudent sexual harassment under Title IX only if a school official

who had a ctual 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.” H arvey v. Blake

, 913 F.2d 226,

227 (5th Cir. 1990) . In order to prevent Title VII liability,

these supervisors “must take prom pt and appropriate remedial

action, ‘reasonably calculated’ to end the harassment.” W altman v.29

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 sch ool 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 penaltie s for failures to comply with conditions on the

disbursement of Spending Clause funds are contrac tual in nature.

Without n otice 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, a nd 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 F ranklin ’s endorsement of a private

cause of action should have put the board on notice that it would30

be liable if it installed school leadership that intentionally

discriminated on the basis of sex. Reading F ranklin 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.” W altman

, 875 F.2d at 479. Of

course, prompt termination or suspension of t he 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 abus e. S ee Tex. Fam. Code Ann. § 261.101(a) (West

1996) (requiring an i mmediate 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 hostile31

environment” on behalf of th e school district. N ash 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.